Exhibit 10.15


 


Morgans
Hotel Portfolio


 


DOCUMENT
PREPARED BY AND


UPON
RECORDATION, RETURN TO:


Proskauer
Rose LLP


1585
Broadway


New
York, New York 10036


Attention: David J.
Weinberger, Esq.


 


 




SPACE ABOVE LINE FOR RECORDER’S USE ONLY





 


A.P.N. 5555-002-147


 


MONDRIAN HOLDINGS LLC,


 


as Borrower


 


to


 


FIRST AMERICAN TITLE INSURANCE COMPANY,


 


as Trustee for the benefit of


 


WACHOVIA BANK, NATIONAL ASSOCIATION,


 


as Lender


 


DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF RENTS


AND FIXTURE FILING


 










 


	
   

  	
  Dated:
  June 29, 2005

  
	
   

  	
   

  
	
   

  	
  Property
  Location:

  	
  The
  Mondrian Hotel

  
	
   

  	
   

  	
  8440 Sunset Boulevard

  
	
   

  	
   

  	
  Los Angeles, California
  90069

  
	
   

  	
   

  	
  (Los Angeles County)

  



 




 


THIS DOCUMENT SECURES A NOTE WHICH MAY CONTAIN PROVISIONS FOR
ADJUSTMENTS IN THE INTEREST RATE AND PAYMENT AMOUNTS AND/OR A BALLOON PAYMENT.





 


THE
PERSONAL PROPERTY IN WHICH BENEFICIARY HAS A SECURITY INTEREST INCLUDES GOODS
WHICH ARE OR SHALL BECOME FIXTURES ON THE PREMISES. THIS DEED OF TRUST SHALL
CONSTITUTE A “FIXTURE FILING” FOR THE PURPOSES OF THE UNIFORM COMMERCIAL CODE. THIS
FILING IS TO BE RECORDED IN THE REAL ESTATE RECORDS OF THE APPROPRIATE COUNTY
IN WHICH THE PREMISES ARE LOCATED.


 





















 


THIS DEED OF TRUST,
SECURITY AGREEMENT, ASSIGNMENT OF RENTS AND FIXTURE FILING (the “Security
Instrument”) is made as of the 29th day of June, 2005, by MONDRIAN HOLDINGS LLC, having its chief
executive office c/o Morgans Hotel Group LLC, 475 Tenth Avenue, New York, New
York 10018 (hereinafter referred to as “Borrower”), to FIRST AMERICAN TITLE INSURANCE COMPANY, a
corporation organized and existing under the laws of the state of California, having
an address at 520 North Central Avenue, Glendale, California 91203 (hereinafter
referred to as “Trustee” for the benefit of WACHOVIA BANK, NATIONAL ASSOCIATION, having an address at Commercial
Real Estate Services, 8739 Research Drive URP 4, NC 1075, Charlotte, North
Carolina 28262 (hereinafter referred to as “Lender”).


 


W I T N E S S E T H:


 


WHEREAS, Lender has authorized a loan (hereinafter
referred to as the “Loan”) to the Cross-collateralized Borrowers in the
maximum principal sum of THREE HUNDRED SIXTY SIX MILLION THREE HUNDRED THIRTY
NINE THOUSAND FOUR HUNDRED THIRTY NINE AND 66/100 DOLLARS ($366,339,439.66) (hereinafter
referred to as the “Loan Amount”), which Loan is evidenced by that certain
promissory note, dated the date hereof (together with any supplements,
amendments, modifications or extensions thereof, hereinafter referred to as the
“Note”) made by the Cross-collateralized Borrowers, as maker, to Lender,
as payee;


 


WHEREAS,
Lender has extended another loan to Guaranteed Loan Borrower, which is an
Affiliate of Borrower, in the original principal amount of ONE HUNDRED SEVEN
MILLION FOUR HUNDRED TEN THOUSAND FIVE HUNDRED SIXTY AND 34/100 DOLLARS
($107,410,560.34) (the “Guaranteed Loan”) evidenced by that certain
Amended and Restated Renewal and Future Advance Promissory Note, dated the date
hereof, made by Guaranteed Loan Borrower in favor of Lender (the “Guaranteed
Note”);


 


WHEREAS, the Cross-collateralized Borrowers have
also executed a payment guaranty of even date herewith in favor of Lender,
which guarantees all of the obligations of Guaranteed Loan Borrower under the
Guaranteed Loan evidenced by the Guaranteed Note (the “Payment Guaranty”);


 


WHEREAS,
as a condition to making the Loan and the Guaranteed Loan, Lender has required Borrower
to execute and deliver this Security Instrument as security for (i) the Loan
and (ii) the Payment Guaranty, and Lender has required Guaranteed Loan Borrower
to guarantee the payment of the Loan and to secure both the Loan and the Guaranteed
Loan with another mortgage recorded against property located outside of the
state of California which is owned by Guaranteed Loan Borrower in the jurisdictions
more particularly described below;


 


WHEREAS, in consideration of the Loan and the
Guaranteed Loan, Borrower has agreed to make payments in amounts sufficient to
pay and redeem, and provide for the payment and redemption of the principal of,
premium, if any, and interest on the Note and the Payment Guaranty when due;


 





















 


WHEREAS, Borrower desires by this Security
Instrument to provide for, among other things, the issuance of the Note and for
the deposit, deed and pledge by Borrower with, and the creation of a security
interest in favor of, Lender, as security for Borrower’s obligations to Lender
from time to time pursuant to the Note, the Payment Guaranty and the other Loan
Documents;


 


WHEREAS, Borrower and Lender intend these recitals
to be a material part of this Security Instrument; and


 


WHEREAS, all things necessary to make this Security
Instrument the valid and legally binding obligation of Borrower in accordance
with its terms, for the uses and purposes herein set forth, have been done and
performed.


 


NOW THEREFORE, in
consideration of the foregoing recitals and to secure the payment of the
principal of, prepayment premium (if any) and interest on the Note and all
other obligations, liabilities or sums due or to become due under this Security
Instrument, the Payment Guaranty, the Note or any other Loan Document,
including, without limitation, interest on said obligations, liabilities or
sums (said principal, premium, interest and other sums being hereinafter
referred to as the “Debt”), Borrower has executed and delivered this
Security Instrument; and Borrower has irrevocably granted, and by these
presents and by the execution and delivery hereof does hereby irrevocably
grant, bargain, sell, alien, demise, release, convey, assign, transfer, deed,
hypothecate, pledge, set over, warrant, mortgage and confirm to Trustee,
forever in trust WITH POWER OF SALE, all right, title and interest of Borrower,
whether now owned or hereafter acquired, in and to all of the following
property, rights, interests and estates:


 


(a)           the plot(s), piece(s) or parcel(s) of real
property described in Exhibit A
attached hereto and made a part hereof (individually and collectively,
hereinafter referred to as the “Premises”);


 


(b)           (i) all buildings, foundations, structures,
fixtures, additions, enlargements, extensions, modifications, repairs,
replacements and improvements of every kind or nature now or hereafter located
on the Premises (hereinafter collectively referred to as the “Improvements”);
and (ii) to the extent permitted by law, the name or names, if any, as may
now or hereafter be used for any of the Improvements, and the goodwill
associated therewith;


 


(c)           all easements, servitudes, rights-of-way,
strips and gores of land, streets, ways, alleys, passages, sewer rights, water,
water courses, water rights and powers, ditches, ditch rights, reservoirs and
reservoir rights, air rights and development rights, lateral support, drainage,
gas, oil and mineral rights, tenements, hereditaments and appurtenances of any
nature whatsoever, in any way belonging, relating or pertaining to the Premises
or the Improvements and the reversion and reversions, remainder and remainders,
whether existing or hereafter acquired, and all land lying in the bed of any
street, road or avenue, opened or proposed, in front of or adjoining the
Premises to the center line thereof and any and all sidewalks, drives, curbs,
passageways, streets, spaces and alleys adjacent to or used in connection with
the Premises and/or Improvements and all the estates, rights, titles,
interests, property, possession, claim and


 


2





















 


demand whatsoever, both in law and in equity, of Borrower of, in and to
the Premises and Improvements and every part and parcel thereof, with the
appurtenances thereto;


 


(d)           all machinery, equipment, systems, fittings,
apparatus, appliances, furniture, furnishings, tools, fixtures, Inventory (as
hereinafter defined) and articles of personal property and accessions thereof
and renewals, replacements thereof and substitutions therefor (including, but
not limited to, all plumbing, lighting and elevator fixtures, office furniture,
beds, bureaus, chiffonniers, chests, chairs, desks, lamps, mirrors, bookcases,
tables, rugs, carpeting, drapes, draperies, curtains, shades, venetian blinds,
wall coverings, screens, paintings, hangings, pictures, divans, couches,
luggage carts, luggage racks, stools, sofas, chinaware, flatware, linens,
pillows, blankets, glassware, foodcarts, cookware, dry cleaning facilities,
dining room wagons, keys or other entry systems, bars, bar fixtures, liquor and
other drink dispensers, icemakers, radios, television sets, intercom and paging
equipment, electric and electronic equipment, dictating equipment, telephone
systems, computerized accounting systems, engineering equipment, vehicles,
medical equipment, potted plants, heating, lighting and plumbing fixtures, fire
prevention and extinguishing apparatus, theft prevention equipment, cooling and
air-conditioning systems, elevators, escalators, fittings, plants, apparatus,
stoves, ranges, refrigerators, laundry machines, tools, machinery, engines,
dynamos, motors, boilers, incinerators, switchboards, conduits, compressors,
vacuum cleaning systems, floor cleaning, waxing and polishing equipment, call
systems, brackets, signs, bulbs, bells, ash and fuel, conveyors, cabinets,
lockers, shelving, spotlighting equipment, dishwashers, garbage disposals,
washers and dryers), other customary hotel equipment and other property of
every kind and nature whatsoever owned by Borrower, or in which Borrower has or
shall have an interest, now or hereafter located upon, or in, and used in
connection with the Premises or the Improvements, or appurtenant thereto, and
all building equipment, materials and supplies of any nature whatsoever owned
by Borrower, or in which Borrower has or shall have an interest, now or
hereafter located upon, or in, and used in connection with the Premises or the
Improvements or appurtenant thereto, (hereinafter, all of the foregoing items
described in this paragraph (d) are collectively called the “Equipment”),
all of which, and any replacements, modifications, alterations and additions
thereto, to the extent permitted by applicable law, shall be deemed to
constitute fixtures (the “Fixtures”), and are part of the real estate
and security for the payment of the Debt and the performance of Borrower’s
obligations.  To the extent any portion
of the Equipment is not real property or fixtures under applicable law, it
shall be deemed to be personal property, and this Security Instrument shall
constitute a security agreement creating a security interest therein in favor
of Lender under the UCC;


 


(e)           all awards or payments, including interest
thereon, which may hereafter be made with respect to the Premises, the
Improvements, the Fixtures, or the Equipment, whether from the exercise of the
right of eminent domain (including but not limited to any transfer made in lieu
of or in anticipation of the exercise of said right), or for a change of grade,
or for any other injury to or decrease in the value of the Premises, the
Improvements or the Equipment or refunds with respect to the payment of
property taxes and assessments, and all other proceeds of the conversion,
voluntary or involuntary, of the Premises, Improvements, Equipment, Fixtures or
any other Property or part thereof into cash or liquidated claims;


 


3





















 


(f)            all leases, tenancies, franchises, licenses
and permits, Property Agreements and other agreements affecting the use,
enjoyment or occupancy of the Premises, the Improvements, the Fixtures, or the
Equipment or any portion thereof now or hereafter entered into, whether before
or after the filing by or against Borrower of any petition for relief under the
Bankruptcy Code and all reciprocal easement agreements, license agreements and
other agreements with Pad Owners (hereinafter collectively referred to as the “Leases”),
together with all receivables, revenues, rentals, credit card receipts,
receipts and all payments received which relate to the rental, lease, franchise
and use of space at the Premises or which relate to the Food and Beverage
Lessee/Operators (it being acknowledged by Lender that the security interest
granted hereunder in receivables, revenues, rentals, credit card receipts,
receipts and all payments received which relate to the Food and Beverage
Lessee/Operators shall not attach to interests of third-party joint venture
partners of Borrower which are not Affiliates of Borrower) and rental and use
of guest rooms or meeting rooms or banquet rooms or recreational facilities or
bars, beverage or food sales, vending machines, mini-bars, room service,
telephone, video and television systems, electronic mail, internet connections,
guest laundry, bars, the provision or sale of other goods and services, and all
other payments received from guests or visitors of the Premises, and other
items of revenue, receipts or income as identified in the Uniform System of
Accounts (as hereinafter defined), all cash or security deposits, lease
termination payments, advance rentals and payments of similar nature and
guarantees or other security held by, or issued in favor of, Borrower in
connection therewith to the extent of Borrower’s right or interest therein and
all remainders, reversions and other rights and estates appurtenant thereto,
and all base, fixed, percentage or additional rents, and other rents, oil and
gas or other mineral royalties, and bonuses, issues, profits and rebates and
refunds or other payments made by any Governmental Authority from or relating
to the Premises, the Improvements, the Fixtures or the Equipment plus all
rents, common area charges and other payments now existing or hereafter
arising, whether paid or accruing before or after the filing by or against
Borrower of any petition for relief under the Bankruptcy Code (the “Rents”)
and all proceeds from the sale or other disposition of the Leases and the right
to receive and apply the Rents to the payment of the Debt;


 


(g)           all proceeds of and any unearned premiums on
any insurance policies covering the Premises, the Improvements, the Fixtures,
the Rents or the Equipment, including, without limitation, the right to receive
and apply the proceeds of any insurance, judgments, or settlements made in lieu
thereof, for damage to the Premises, the Improvements, the Fixtures or the
Equipment and all refunds or rebates of Impositions, and interest paid or
payable with respect thereto;


 


(h)           all deposit accounts, securities accounts,
funds or other accounts maintained or deposited with Lender, or its assigns, in
connection herewith, including, without limitation, the Security Deposit
Account (to the extent permitted by law), the Engineering Escrow Account, the
Central Account, the Basic Carrying Costs Sub-Account, the Basic Carrying Costs
Escrow Account, the Debt Service Payment Sub-Account, the SAOT Sub-Account, the
SAOT Escrow Account, the Recurring Replacement Reserve Sub-Account, the
Recurring Replacement Reserve Escrow Account, the Mez Payment Sub-Account, the
Mez Payment Escrow Account, the Operation and Maintenance Expense Sub-Account,
the Operation and Maintenance Expense Escrow Account, the Curtailment Reserve
Sub-Account, the Curtailment Reserve Escrow


 


4





















 


Account,
the Capex Trap Sub-Account and the Capex Trap Escrow Account and all monies and
investments deposited or to be deposited in such accounts;


 


(i)            all accounts receivable, contract rights,
franchises, interests, estate or other claims, both at law and in equity, now
existing or hereafter arising, and relating to the Premises, the Improvements,
the Fixtures or the Equipment, not included in Rents;


 


(j)            all now existing or hereafter arising claims
against any Person with respect to any damage to the Premises, the
Improvements, the Fixtures or the Equipment, including, without limitation,
damage arising from any defect in or with respect to the design or construction
of the Improvements, the Fixtures or the Equipment and any damage resulting
therefrom;


 


(k)           all deposits or other security or advance payments,
including rental payments now or hereafter made by or on behalf of Borrower to
others, with respect to (i) insurance policies, (ii) utility services, (iii)
cleaning, maintenance, repair or similar services, (iv) refuse removal or sewer
service, (v) parking or similar services or rights and (vi) rental of
Equipment, if any, relating to or otherwise used in the operation of the
Premises, the Improvements, the Fixtures or the Equipment;


 


(l)            all intangible property now or hereafter relating
to the Premises, the Improvements, the Fixtures or the Equipment or its
operation, including, without limitation, software, letter of credit rights,
trade names, trademarks (including, without limitation, any licenses of or
agreements to license trade names or trademarks now or hereafter entered into
by Borrower), logos, building names and goodwill;


 


(m)          all now existing or hereafter arising
advertising material, guaranties, warranties, building permits, other permits,
licenses, plans and specifications, shop and working drawings, soil tests,
appraisals and other documents, materials and/or personal property of any kind
now or hereafter existing in or relating to the Premises, the Improvements, the
Fixtures, and the Equipment;


 


(n)           all now existing or hereafter arising drawings,
designs, plans and specifications prepared by architects, engineers, interior
designers, landscape designers and any other consultants or professionals for
the design, development, construction, repair and/or improvement of the
Property, as amended from time to time;


 


(o)           the right, in the name of and on behalf of
Borrower, to appear in and defend any now existing or hereafter arising action
or proceeding brought with respect to the Premises, the Improvements, the
Fixtures or the Equipment and to commence any action or proceeding to protect
the interest of Lender in the Premises, the Improvements, the Fixtures or the
Equipment;


 


(p)           all accounts, chattel paper, deposit
accounts, fixtures, general intangibles, goods, instruments and securities accounts
(each as defined in the Uniform Commercial Code as in effect from time to time
in the State of California in which the Premises is located (the “UCC
Collateral”); and


 


5





















 


(q)           all proceeds, products, substitutions and
accessions (including claims and demands therefor) of each of the foregoing.


 


AND FURTHER, in
consideration of the foregoing recitals and to secure the Debt as aforesaid,
Borrower by these presents and by the execution and delivery hereof does hereby
irrevocably grant, bargain, sell, alien, demise, release, convey, assign,
transfer, deed, hypothecate, pledge, set over, warrant, mortgage and confirm to
Lender, forever, all right, title and interest of Borrower, whether now owned
or hereafter acquired, in and to the Equipment, the Fixtures, the UCC
Collateral and all other personal property described above.  To the extent any portion of the Equipment is
not real property or fixtures under applicable law, it shall be deemed to be
personal property, and this Security Instrument shall constitute a security
agreement creating a security interest therein in favor of Lender under the
UCC.


 


All of the foregoing items (a) through (p), together
with all of the right, title and interest of Borrower therein, are collectively
referred to as the “Property”.


 


TO HAVE AND TO HOLD the above granted and described
Property unto Trustee, in trust, for the proper use and benefit of Lender, and
the successors and assigns of Lender in fee simple, forever.


 


PROVIDED, ALWAYS, and these presents are upon this
express condition, if Borrower shall well and truly pay and discharge the Debt
and perform and observe the terms, covenants and conditions set forth in the
Loan Documents, then these presents and the estate hereby granted shall cease
and be void.


 


AND Borrower covenants with and warrants to Lender
that:


 


ARTICLE I:  DEFINITIONS


 


Section
1.01.  Certain Definitions.


 


For all purposes of this Security Instrument, except
as otherwise expressly provided or unless the context clearly indicates a
contrary intent:


 


(i)            the capitalized terms defined in this Section
have the meanings assigned to them in this Section, and include the plural as
well as the singular;


 


(ii)           all accounting terms not otherwise defined
herein shall be construed in accordance with GAAP; and


 


(iii)          the words “herein”, “hereof”, and “hereunder”
and other words of similar import refer to this Security Instrument as a whole
and not to any particular Section or other subdivision.


 


“ACH” shall have the meaning set forth in
Section 5.01 hereof.


 


“ACM” shall have the meaning set forth in
Section 16.03 hereof.


 


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“Additional Financing” shall have the meaning
set forth in Section 9.02(b) hereof.


 


“Adjusted Net Cash Flow” shall mean, as of
any date of calculation, the Net Operating Income for all of the
Cross-collateralized Properties over the
twelve (12)-month period preceding the date of calculation adjusted to
reflect (a) an annual replacement reserve of
4% of gross revenues and (b) scheduled increases in real estate taxes over the
subsequent twelve (12) month period resulting from, among other things,
increases in tax rates or the assessed value of the Property and/or the
expiration of any applicable tax abatements. 
The Adjusted Net Cash Flow shall be
calculated by Borrower and shall be subject to the reasonable review and
approval of Lender.


 


“Affiliate” of any specified Person shall
mean any other Person directly or indirectly Controlling or Controlled by or
under direct or indirect common Control with such specified Person.


 


“Allocated
Loan Amount” shall mean the Initial Allocated Loan Amount of each
Cross-collateralized Property as such amount may be adjusted from time to time
as hereinafter set forth. Upon each adjustment of the Principal Amount (each a “Total
Adjustment”), whether as a result of amortization or prepayment or as
otherwise expressly provided herein or in any other Loan Document, each
Allocated Loan Amount shall be increased or decreased, as the case may be, by
an amount equal to the product of (a) the Total Adjustment, and (b) a fraction,
the numerator of which is the applicable Allocated Loan Amount (prior to the
adjustment in question) and the denominator of which is the Principal Amount
prior to the adjustment to the Principal Amount which results in the
recalculation of the Allocated Loan Amount. However, when the Principal Amount
is reduced as a result of Lender’s receipt of (a) a Release Price or, in
connection with a Release, funds sufficient to prepay a portion of the
Principal Amount in the amount of the Release Price, the Allocated Loan Amount
for the Cross-collateralized Property being released and discharged from the
encumbrance of the applicable Cross-collateralized Mortgage and related Loan
Documents shall be reduced to zero (the amount by which such Allocated Loan
Amount is reduced being referred to as the “Released Allocated Amount”),
and each other Allocated Loan Amount shall be decreased by an amount equal to
the product of (i) the excess of (A) the Release Price over (B) the Released
Allocated Amount and (ii) a fraction, the numerator of which is the applicable
Allocated Loan Amount (prior to the adjustment in question) and the denominator
of which is the aggregate of all of the Allocated Loan Amounts other than the
Allocated Loan Amount applicable to the Cross-collateralized Property for which
the Release Price was paid, or (b) Net Proceeds, the Allocated Loan Amount for
the Cross-collateralized Property with respect to which the Net Proceeds were
received shall be reduced to zero (the amount by which such Allocated Loan
Amount is reduced being referred to as the “Foreclosed Allocated Amount”)
and each other Allocated Loan Amount shall (A) if the Net Proceeds exceed the
Foreclosed Allocated Amount (such excess being referred to as the “Surplus
Net Proceeds”), be decreased by an amount equal to the product of (i) the
Surplus Net Proceeds and (ii) a fraction, the numerator of which is the
applicable Allocated Loan Amount (prior to the adjustment in question) and the
denominator of which is the aggregate of all of the Allocated Loan Amounts
(prior to the adjustment in question) other than the Allocated Loan Amount
applicable to the Cross-collateralized Property with respect to which the Net
Proceeds were received (such fraction being referred to as the “Net Proceeds
Adjustment Fraction”), (B) if the


 


7





















 


Foreclosed
Allocated Amount exceeds the Net Proceeds (such excess being referred to as the
“Net Proceeds Deficiency”), be increased by an amount equal to the
product of (i) the Net Proceeds Deficiency and (ii) the Net Proceeds Adjustment
Fraction, or (C) if the Net Proceeds equal the Foreclosed Allocated Amount,
remain unadjusted, or (c) Loss Proceeds or partial prepayments made in
accordance with Section 15.01 hereof, the Allocated Loan Amount for the
Cross-collateralized Property with respect to which the Loss Proceeds or
partial prepayments were received shall be decreased by an amount equal to the
sum of (i) with respect to Loss Proceeds, Loss Proceeds which are applied
towards the reduction of the Principal Amount as set forth in Article III
hereof, if any, and (ii) with respect to partial prepayments, the amount of any
such partial prepayment which is applied towards the reduction of the Principal
Amount in accordance with the provisions of the Note, if any, but in no event
shall the Allocated Loan Amount for the Cross-collateralized Property with
respect to which the Loss Proceeds or partial prepayments were received be
reduced to an amount less than zero (the amount by which such Allocated Loan
Amount is reduced being referred to as the “Loss Proceeds or Prepayment
Allocated Amount”) and each other Allocated Loan Amount shall be decreased
by an amount equal to the product of (i) the excess of (A) the Loss Proceeds or
such partial prepayments over (B) the Loss Proceeds or Prepayment Allocated
Amount, and (ii) a fraction, the numerator of which is the applicable Allocated
Loan Amount (prior to the adjustment in question) and the denominator of which
is the aggregate of all of the Allocated Loan Amounts (prior to the adjustment
in question) other than the Allocated Loan Amount applicable to the
Cross-collateralized Property to which such Loss Proceeds or partial
prepayments were applied.


 


“Annual Budget” shall mean an annual budget
submitted by Borrower to Lender in accordance with the terms of Section 2.09
hereof.


 


“Appraisal” shall mean the appraisal of the
Property and all supplemental reports or updates thereto previously delivered
to Lender in connection with the Loan as set forth in the Receipt and Closing
Certificate delivered to Lender by Borrower on the Closing Date.


 


“Appraiser” shall mean the Person who
prepared the Appraisal.


 


“Approved Annual Budget” shall mean each
Annual Budget approved by Lender in accordance with the terms hereof.


 


“Approved Manager Standard” shall mean the
standard of business operations, practices and procedures customarily employed
by entities having a senior executive with at least five (5) years’ experience
in the management of full service luxury or full service upscale hotel
properties which manage not less than five (5) full service luxury or full
service upscale hotel properties having 2,000 hotel rooms in the aggregate,
including, without limitation, certain full service luxury or full service
upscale hotel properties which contain more than 250 hotel rooms.


 


“Architect” shall have the meaning set forth
in Section 3.04(b)(i) hereof.


 


“Assignment” shall mean the Assignment of
Leases and Rents and Security Deposits of even date herewith relating to the
Property given by Borrower to Lender, as the same may be modified, amended or
supplemented from time to time.


 


8





















 


“Bank” shall mean the bank, trust company,
savings and loan association or savings bank designated by Lender, in its sole
and absolute discretion, in which the Central Account shall be located.


 


“Bankruptcy Code” shall mean 11 U.S.C. §101
et seq., as amended from time to time.


 


“Basic Carrying Costs” shall mean the sum of
the following costs associated with the Property:  (a) Impositions and (b) insurance premiums.


 


“Basic Carrying Costs Escrow Account” shall
mean the Escrow Account maintained pursuant to Section 5.06 hereof.


 


“Basic Carrying Costs Monthly Installment”
shall mean Lender’s estimate of one-twelfth (1/12th) of the annual amount for
Basic Carrying Costs or with respect to insurance premiums financed in
accordance with the terms of this Security Instrument an amount equal to the
next installment of the insurance premiums then due.  “Basic Carrying Costs Monthly Installment”
shall also include, if required by Lender, a sum of money which, together with
such monthly installments, will be sufficient to make the payment of each such
Basic Carrying Cost at least thirty (30) days prior to the date initially
due.  Should such Basic Carrying Costs
not be ascertainable at the time any monthly deposit is required to be made,
the Basic Carrying Costs Monthly Installment shall be determined by Lender in
its reasonable discretion on the basis of the aggregate Basic Carrying Costs
for the prior Fiscal Year or month or the prior payment period for such
cost.  As soon as the Basic Carrying
Costs are fixed for the then current Fiscal Year, month or period, the next
ensuing Basic Carrying Costs Monthly Installment shall be adjusted to reflect
any deficiency or surplus in prior monthly payments.  If at any time during the term of the Loan
Lender determines that there will be insufficient funds in the Basic Carrying
Costs Escrow Account to make payments when they become due and payable, Lender
shall have the right to adjust the Basic Carrying Costs Monthly Installment
such that there will be sufficient funds to make such payments.


 


“Basic Carrying Costs Sub-Account” shall mean
the Sub-Account of the Central Account established pursuant to Section 5.02 into
which the Basic Carrying Costs Monthly Installments shall be deposited.


 


“Borrower” shall mean Borrower named herein
and any successor to the obligations of Borrower.


 


“Business Day” shall mean any day other than
(a) a Saturday or Sunday, or (b) a day on which banking and savings and loan
institutions in the State of New York or the State of North Carolina are
authorized or obligated by law or executive order to be closed, or at any time
during which the Loan is an asset of a Securitization, the cities, states
and/or commonwealths used in the comparable definition of “Business Day” in the
Securitization documents.


 


“Capex
Cash Trap Period” shall mean each Interest Accrual Period (x) during the
first (1st) Loan Year, until an amount equal to $5,000,000 has been deposited
into the Capex Trap Sub-Account (the “First Loan Year Capex Deposit”),
(y) during the second (2nd) Loan Year 


 


9





















 


sums shall be deposited into the Capex Trap
Sub-Account (the “Second Loan Year Capex Deposit”) such that together
with the First Loan Year Capex Deposit an aggregate $6,000,000 (without
deduction for any amounts expended from the Capex Trap Sub-Account) has been
deposited into the Capex Trap Sub-Account, and (z) during the third (3rd) Loan
Year sums shall be deposited into the Capex Trap Sub-Account (the “Third
Loan Year Capex Deposit”) such that together with the First Loan Year Capex
Deposit and the Second Loan Year Capex Deposit, an aggregate $7,000,000 (without
deduction for any amounts expended from the Capex Trap Sub-Account) has been
deposited into the Capex Trap Sub-Account. 
Subsequent to the commencement of the fourth (4th) Loan Year, there
shall be no Capex Cash Trap Period.


 


“Capex Trap Escrow Account” shall mean the
Escrow Account maintained pursuant to Section 5.15 hereof relating to the
payment of approved Replacement Expenditures.


 


“Capex Trap Sub-Account” shall mean the
Sub-Account of the Central Account established pursuant to Section 5.02 hereof
into which excess cash flow shall be deposited pursuant to Section 5.05 hereof.


 


“Capital Expenditures” shall mean for any
period, the amount expended for items capitalized under GAAP including
expenditures for building improvements or major repairs, leasing commissions
and tenant improvements.


 


“Cash Expenses” shall mean for any period,
the operating expenses for the Property as set forth in an Approved Annual
Budget to the extent that such expenses are actually incurred by Borrower minus
payments into the Basic Carrying Costs Sub-Account, the Debt Service Payment
Sub-Account, the SAOT Sub-Account and the Recurring Replacement Reserve
Sub-Account.


 


“Central Account” shall mean an Eligible
Account, maintained at the Bank, in the name of Lender or its successors or
assigns (as secured party).


 


“Class A Margin” shall have the meaning set
forth in the Note.


 


“Class A Portion” shall have the meaning set
forth in the Note.


 


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


 


“Class B Margin” shall have the meaning set
forth in the Note.


 


“Class B Portion” shall have the meaning set
forth in the Note.


 


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


 


“Closing
Date” shall mean the date of the Note.


 


“Code” shall mean the Internal Revenue Code
of 1986, as amended and as it may be further amended from time to time, any
successor statutes thereto, and applicable U.S. Department of Treasury
regulations promulgated thereunder.


 


10





















 


“Condemnation Proceeds” shall mean all of the
proceeds in respect of any Taking or purchase in lieu thereof.


 


“Contest” shall have the meaning set forth in
Section 18.32 hereof.


 


“Contractual Obligation” shall mean, as to
any Person, any provision of any security issued by such Person or of any
agreement, instrument or undertaking to which such Person is a party or by
which it or any of the property owned by it is bound.


 


“Control” means, when used with respect to
any specific Person, the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such 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.”


 


“Counterparty” shall have the meaning set
forth in Section 5.10 hereof.


 


“CPI” shall mean “The Consumer Price Index
(New Series) (Base Period 1982-84=100) (all items for all urban consumers)”
issued by the Bureau of Labor Statistics of the United States Department of
Labor (the “Bureau”).  If the CPI
ceases to use the 1982-84 average equaling 100 as the basis of calculation, or
if a change is made in the term, components or number of items contained in
said index, or if the index is altered, modified, converted or revised in any
other way, then the index shall be adjusted to the figure that would have been
arrived at had the change in the manner of computing the index in effect at the
date of this Security Instrument not been made. 
If at any time during the term of this Security Instrument the CPI shall
no longer be published by the Bureau, then any comparable index issued by the
Bureau or similar agency of the United States issuing similar indices shall be
used in lieu of the CPI.


 


“Credit Card Company” shall have the meaning
set forth in Section 5.01 hereof.


 


“Credit Card Payment Direction Letter” shall
have the meaning set forth in Section 5.01 hereof.


 


“Cross-collateralized
Borrowers” shall mean each Person which has executed the Note.


 


“Cross-collateralized
Mortgage” shall mean each mortgage, deed of trust, deed to secure debt,
security agreement, assignment of rents and fixture filing as originally
executed or as same may hereafter from time to time be supplemented, amended,
modified or extended by one or more indentures supplemental thereto granted by
a Cross-collateralized Borrower to Lender as security for the Note.


 


“Cross-collateralized
Property” shall mean each parcel or parcels of real property encumbered by
a Cross-collateralized Mortgage as identified on Exhibit F attached hereto and
made a part hereof; provided, however, at such time, if any, that a
Cross-collateralized Mortgage is released by Lender, the property which was
encumbered by such Cross-collateralized Property shall no longer constitute a
Cross-collateralized Property.


 


11





















 


“Curtailment Reserve Escrow Account” shall
mean the Escrow Account maintained pursuant to Section 5.11 hereof into which
sums shall be deposited during an O&M Operative Period.


 


“Curtailment Reserve Sub-Account” shall mean
the Sub-Account of the Central Account established pursuant to Section 5.02
hereof.


 


“Delano Hotel” shall mean that certain hotel
property located at 1685 Collins Avenue, Miami Beach, Florida.


 


“Debt” shall have the meaning set forth in
the Recitals hereto.


 


“Debt Service” shall mean the amount of
interest and principal payments due and payable in accordance with the Note
during an applicable period.


 


“Debt Service Coverage” shall mean the quotient
obtained by dividing the Adjusted Net Cash Flow by the product of (a) the then
outstanding balance of (i) the Loan plus (ii) any subordinate or mezzanine
financing, including without limitation the Mez Loan, then affecting or related
to the Property or any interest therein excluding any financings of any Person
who is not a Cross-collateralized Borrower or a borrower under the Mezzanine
Loan (determined as of the applicable date the calculation of Debt Service
Coverage is required or requested hereunder) multiplied by (b) 8.68%.


 


“Debt Service Payment Sub-Account” shall mean
the Sub-Account of the Central Account established pursuant to Section 5.02
hereof into which the Required Debt Service Payment shall be deposited.


 


“Debt Yield” means the Adjusted Net Cash Flow
divided by the sum of (a) the unpaid Principal Amount of the Loan and (b) the
outstanding principal balance of any subordinate or mezzanine financing,
including without limitation the Mez Loan, then affecting or related to the
Property or any interest therein excluding any financings of any Person who is
not a Cross-collateralized Borrower or a borrower under the Mezzanine Loan (determined
as of the date of the calculation of Debt Yield as required or requested
hereunder).


 


“Default” shall mean any Event of Default or
event which would constitute an Event of Default if all requirements in
connection therewith for the giving of notice, the lapse of time, and the
happening of any further condition, event or act, had been satisfied.


 


“Default Rate” shall mean the lesser of (a)
the highest rate allowable at law and (b) (i) five percent (5%) above the Class
A Rate with respect to the Class A Portion and (ii) five percent (5%) above the
Class B Rate with respect to the Class B Portion.


 


“Default Rate Interest” shall mean, to the
extent the Default Rate becomes applicable, interest in excess of the interest
which would have accrued on (a) the Principal Amount and (b) any accrued but
unpaid interest, if the Default Rate was not applicable.


 


12





















 


“Development Laws” shall mean all applicable
subdivision, zoning, environmental protection, wetlands protection, or land use
laws or ordinances, and any and all applicable rules and regulations of any
Governmental Authority promulgated thereunder or related thereto.


 


“Dollar” and the sign “$” shall mean lawful
money of the United States of America.


 


“Eligible Account” shall mean a segregated
account which is either (a) an account or accounts maintained with a federal or
state chartered depository institution or trust company the long term unsecured
debt obligations of which are rated by each of the Rating Agencies (or, if not
rated by Fitch, Inc. (“Fitch”), otherwise acceptable to Fitch, as
confirmed in writing that such account would not, in and of itself, result in a
downgrade, qualification or withdrawal of the then current ratings assigned to
any certificates issued in connection with a Securitization) in its highest
rating category at all times (or, in the case of the Basic Carrying Costs Escrow
Account, the long term unsecured debt obligations of which are rated at least “AA”
(or its equivalent)) by each of the Rating Agencies (or, if not rated by Fitch,
otherwise acceptable to Fitch, as confirmed in writing that such account would
not, in and of itself, result in a downgrade, qualification or withdrawal of
the then current ratings assigned to any certificates issued in connection with
a Securitization) or, if the funds in such account are to be held in such
account for less than thirty (30) days, the short term obligations of which are
rated by each of the Rating Agencies (or, if not rated by Fitch, otherwise
acceptable to Fitch, as confirmed in writing that such account would not, in
and of itself, result in a downgrade, qualification or withdrawal of the then
current ratings assigned to any certificates issued in connection with a
Securitization) in its highest rating category at all times or (b) a segregated
trust account or accounts maintained with a federal or state chartered
depository institution or trust company acting in its fiduciary capacity which,
in the case of a state chartered depository institution is subject to
regulations substantially similar to 12 C.F.R. § 9.10(b), having in either case
a combined capital and surplus of at least $100,000,000 and subject to
supervision or examination by federal and state authority, or otherwise
acceptable (as evidenced by a written confirmation from each Rating Agency that
such account would not, in and of itself, cause a downgrade, qualification or
withdrawal of the then current ratings assigned to any certificates issued in
connection with a Securitization) to each Rating Agency, which may be an
account maintained by Lender or its agents. 
Eligible Accounts may bear interest. 
The title of each Eligible Account shall indicate that the funds held
therein are held in trust for the uses and purposes set forth herein.


 


“Engineer” shall have the meaning set forth
in Section 3.04(b)(i) hereof.


 


“Engineering Escrow Account” shall mean an
Escrow Account established and maintained pursuant to Section 5.12 hereof
relating to payments for any Required Engineering Work.


 


“Environmental Problem” shall mean any of the
following:


 


(a)           the presence of any Hazardous Material on,
in, under, or above all or any portion of the Property;


 


13





















 


(b)           the release or threatened release of any
Hazardous Material from or onto the Property;


 


(c)           the violation or threatened violation of any
Environmental Statute with respect to the Property; or


 


(d)           the failure to obtain or to abide by the
terms or conditions of any permit or approval required under any Environmental
Statute with respect to the Property.


 


A condition described above
shall be an Environmental Problem regardless of whether or not any Governmental
Authority has taken any action in connection with the condition and regardless
of whether that condition was in existence on or before the date hereof.


 


“Environmental Report” shall mean the
environmental audit report for the Property and any supplements or updates thereto,
previously delivered to Lender in connection with the Loan.


 


“Environmental Statute” shall mean any
federal, state or local statute, ordinance, rule or regulation, any judicial or
administrative order (whether or not on consent) or judgment applicable to
Borrower or the Property including, without limitation, any judgment or
settlement based on common law theories, and any provisions or condition of any
permit, license or other authorization binding on Borrower relating to (a) the
protection of the environment, the safety and health of persons (including
employees) or the public welfare from actual or potential exposure (or effects
of exposure) to any actual or potential release, discharge, disposal or
emission (whether past or present) of any Hazardous Materials or (b) the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of any Hazardous Materials, including, but not limited
to, the Comprehensive Environmental Response, Compensation and Liability Act of
1980 (“CERCLA”), as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 U.S.C. §9601 et  seq., the Solid
Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of
1976, as amended by the Solid and Hazardous Waste Amendments of 1984, 42 U.S.C.
§6901 et  seq., the Federal Water Pollution Control Act, as
amended by the Clean Water Act of 1977, 33 U.S.C. §1251 et  seq.,
the Toxic Substances Control Act of 1976, 15 U.S.C. §2601 et  seq.,
the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. §1101
et  seq., the Clean Air Act of 1966, as amended, 42 U.S.C. §7401 et
seq., the National Environmental Policy Act of 1975, 42 U.S.C. §4321,
the Rivers and Harbors Act of 1899, 33 U.S.C. §401 et  seq., the
Endangered Species Act of 1973, as amended, 16 U.S.C. §1531 et  seq.,
the Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. §651 et
seq., and the Safe Drinking Water Act of 1974, as amended, 42 U.S.C.
§300(f) et  seq., and all rules, regulations and guidance
documents promulgated or published thereunder.


 


“Equipment” shall have the meaning set forth
in granting clause (d) of this Security Instrument.


 


“ERISA” shall mean the Employee Retirement
Income Security Act of 1974, as amended and as may be further amended from time
to time, and any successor statutes thereto, and the regulations promulgated
thereunder.


 


14





















 


“ERISA Affiliate” shall mean any corporation
or trade or business that is a member of any group of organizations (a)
described in Section 414(b) or (c) of the Code of which Borrower or Guarantor
is a member and (b) solely for purposes of potential liability under Section
302(c)(11) of ERISA and Section 412(c)(11) of the Code and the lien created
under Section 302(f) of ERISA and Section 412(n) of the Code, described in
Section 414(m) or (o) of the Code of which Borrower or Guarantor is a member.


 


“Escrow Account” shall mean each of the Engineering
Escrow Account, the Basic Carrying Costs Escrow Account, the SAOT Escrow
Account, the Recurring Replacement Reserve Escrow Account, the Mez Payment
Escrow Account, the Operation and Maintenance Expense Escrow Account, the
Curtailment Reserve Escrow Account and the Capex Trap Escrow Account, each of
which shall be an Eligible Account or book entry sub-account of an Eligible
Account.


 


“Event of Default” shall have the meaning set
forth in Section 13.01 hereof.


 


“Extraordinary
Expense” shall mean (a) a material extraordinary operating expense or
capital expense not set forth in the Approved Annual Budget or allotted for in
the Recurring Replacement Reserve Sub-Account and (b) the excess of Operating
Expenses over those set forth in the Approved Annual Budget for Interest
Accrual Periods prior to the Interest Accrual Period in which such
determination is being made resulting from revenues which have increased over
those set forth in the Approved Annual Budget for which, with respect to items
set forth in this clause (b) no Lender approval is required.


 


“Exit
Fee” shall have the meaning set forth in Section 15.02 hereof.


 


“First Interest Accrual Period” shall have
the meaning set forth in the Note.


 


“Fiscal Year” shall mean the twelve (12)
month period commencing on January 1 and ending on December 31 during each year
of the term of this Security Instrument, or such other fiscal year of Borrower
as Borrower may select from time to time with the prior written consent of
Lender, which consent shall not be unreasonably withheld.


 


“Fixtures” shall have the meaning set forth in
granting clause (d) of this Security Instrument.


 


“Food and Beverage Lessee/Operators” shall
have the meaning set forth on Exhibit I
attached hereto and made a part hereof.


 


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


 


“General Partner” shall mean, if Borrower or an
SPE Pledgor is a partnership, each general partner of Borrower or SPE Pledgor,
as applicable, and, if Borrower or an SPE Pledgor is a limited liability
company, each managing member of Borrower or SPE Pledgor and in each case, if
applicable, each general partner or managing member of such general partner or
managing member.  In the event that
Borrower, an SPE Pledgor or any General Partner is a


 


15





















 


single member limited liability company, the term “General
Partner” shall include such single member.


 


“Governmental Authority” shall mean, with
respect to any Person, any federal or State government or other political
subdivision thereof and any entity, including any regulatory or administrative
authority or court, exercising executive, legislative, judicial, regulatory or
administrative or quasi-administrative functions of or pertaining to
government, and any arbitration board or tribunal, in each case having
jurisdiction over such applicable Person or such Person’s property and any
stock exchange on which shares of capital stock of such Person are listed or
admitted for trading.


 


“Guaranteed Loan Borrower” shall mean Beach
Hotel Associates LLC, a Delaware limited liability company.


 


“Guaranteed Loan” shall have the meaning set
forth in the Recitals hereto.


 


“Guaranteed Note” shall have the meaning set
forth in the Recitals hereto.


 


“Guarantor” shall mean Morgans Hotel Group
LLC, a Delaware limited liability company, and each SPE Pledgor.


 


“Hazardous Material” shall mean any
flammable, explosive or radioactive materials, hazardous materials or wastes,
hazardous or toxic substances, pollutants or related materials, asbestos or any
material containing asbestos, molds, spores and fungus which may pose a risk to
human health or the environment or any other substance or material as defined
in or regulated by any Environmental Statutes.


 


“Impositions” shall mean all taxes
(including, without limitation, all real estate, ad valorem, assessments
(including, without limitation, all assessments for public improvements or
benefits, whether or not commenced or completed prior to the date hereof and whether
or not commenced or completed within the term of this Security Instrument),
ground rents, condominium common charges, excises, levies, fees (including,
without limitation, license, permit, inspection, authorization and similar
fees), and all other governmental charges, in each case whether general or
special, ordinary or extraordinary, or foreseen or unforeseen, of every
character in respect of the Property and/or any Rent (including all interest
and penalties thereon), which at any time prior to, during or in respect of the
term hereof may be assessed or imposed on or in respect of or be a lien upon
(a) Borrower (including, without limitation, all franchise, single business or
other taxes imposed on Borrower for the privilege of doing business in the
jurisdiction in which the Property or any other collateral delivered or pledged
to Lender in connection with the Loan is located) or Lender or (b) the Property
or any part thereof or any Rents therefrom or any estate, right, title or
interest therein.  Impositions shall not
include any taxes imposed on Lender’s income and franchise taxes imposed on
Lender by the law or regulation of any Governmental Authority.


 


“Improvements” shall have the meaning set
forth in granting clause (b) of this Security Instrument.


 


16





















 


“Indemnified Parties” shall have the meaning
set forth in Section 12.01 hereof.


 


“Independent” shall mean, when used with
respect to any Person, a Person who (a) is in fact independent, (b) does not
have any direct financial interest or any material indirect financial interest
in Borrower, or in any Affiliate of Borrower or any constituent partner,
shareholder, member or beneficiary of Borrower, (c) is not connected with
Borrower or any Affiliate of Borrower or any constituent partner, shareholder,
member or beneficiary of Borrower as an officer, employee, promoter,
underwriter, trustee, partner, director or person performing similar functions
and (d) is not a member of the immediate family of a Person defined in (b) or
(c) above.  Whenever it is herein
provided that any Independent Person’s opinion or certificate shall be
provided, such opinion or certificate shall state that the Person executing the
same has read this definition and is Independent within the meaning hereof.


 


“Independent
Director” shall have the meaning set forth in Section 2.02(g)(xvi) hereof.


 


“Initial
Allocated Loan Amount” shall mean the portion of the Loan Amount allocated
to each Cross-collateralized Property as set forth on Exhibit F annexed hereto
and made a part hereof.


 


“Initial Engineering Deposit” shall equal the
amount set forth on Exhibit B
attached hereto and made a part hereof.


 


“Institutional Lender” shall mean any of the
following Persons:  (a) any bank,
savings and loan association, savings institution, trust company or national
banking association, acting for its own account or in a fiduciary capacity,
(b) any charitable foundation, (c) any insurance company or pension
and/or annuity company, (d) any fraternal benefit society, (e) any
pension, retirement or profit sharing trust or fund within the meaning of
Title I of ERISA or for which any bank, trust company, national banking
association or investment adviser registered under the Investment Advisers Act of
1940, as amended, is acting as trustee or agent, (f) any investment
company or business development company, as defined in the Investment Company
Act of 1940, as amended, (g) any small business investment company
licensed under the Small Business Investment Act of 1958, as amended,
(h) any broker or dealer registered under the Securities Exchange Act of
1934, as amended, or any investment adviser registered under the Investment
Adviser Act of 1940, as amended, (i) any government, any public employees’
pension or retirement system, or any other government agency supervising the
investment of public funds, or (j) any other entity all of the equity
owners of which are Institutional Lenders; provided that each of said Persons
shall have net assets in excess of $1,000,000,000 and a net worth in excess of
$500,000,000, be in the business of making commercial mortgage loans, secured
by properties of like type, size and value as the Property and have a long term
credit rating which is not less than “BBB-” (or its equivalent) from each
Rating Agency.


 


“Insurance Proceeds” shall mean all of the
proceeds received under the insurance policies required to be maintained by
Borrower pursuant to Article III hereof.


 


“Insurance Requirements” shall mean all terms
of any insurance policy required by this Security Instrument, all requirements
of the issuer of any such policy, and all regulations and 


 


17





















 


then current standards applicable to or affecting
the Property or any use or condition thereof, which may, at any time, be
recommended by the Board of Fire Underwriters, if any, having jurisdiction over
the Property, or such other Person exercising similar functions.


 


“Interest Accrual Period” shall have the
meaning set forth in the Note.


 


“Interest Shortfall” shall mean any shortfall
in the amount of interest required to be paid with respect to the Loan Amount
on any Payment Date.


 


“Inventory” shall have the meaning as such
term is defined in the Uniform Commercial Code applicable in the State in which
the Property is located, including, without limitation, provisions in
storerooms, refrigerators, pantries and kitchens, beverages in wine cellars and
bars, other merchandise for sale, fuel, mechanical supplies, stationery and
other supplies and similar items, as defined in the Uniform System of Accounts.


 


“IPO” shall mean a bona fide initial public
offering of stock in a corporation (the “Public Company”) formed under
the laws of a state of the United States of America (a) which is listed on a national
stock exchange or quoted on the NASDAQ Stock Market, (b) the underwriter of
which is one or more nationally recognized investment banks, (c) the assets of
which include all of the Cross-collateralized Properties (unless one of the
Cross-collateralized Properties is released pursuant to the terms hereof), (d)
with respect to which (i) no one Person or group of Affiliated Persons purchases
in the initial public offering more than twenty percent (20%) of the Public Company
(whether directly or indirectly or through an Affiliate and/or family members)
and (ii) W. Edward Scheetz or David Hamamoto remain actively involved in the
management of the operations of Borrower, having the title and responsibilities
of a chief executive officer, president and/or chief financial officer and a
seat on the board of directors of the Public Company and (e) which raises not
less than $50,000,000.


 


“Late Charge” shall have the meaning set
forth in Section 13.09 hereof.


 


“Leases” shall have the meaning set forth in
granting clause (f) of this Security Instrument.


 


“Legal Requirement” shall mean as to any
Person, the certificate of incorporation, by-laws, certificate of limited
partnership, agreement of limited partnership or other organization or
governing documents of such Person, and any law, statute, order, ordinance,
judgement, decree, injunction, treaty, rule or regulation (including, without
limitation, Environmental Statutes, Development Laws and Use Requirements) or
determination of an arbitrator or a court or other Governmental Authority and
all covenants, agreements, restrictions and encumbrances contained in any
instruments, in each case applicable to or binding upon such Person or any of
its property or to which such Person or any of its property is subject.


 


“Lender” shall mean the Lender named herein
and its successors or assigns.


 


“LIBOR Margin” shall mean the Class A Margin
with respect to the Class A Portion and the Class B Margin with respect to the
Class B Portion.


 


18





















 


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


 


“Loan”
shall have the meaning set forth in the Recitals hereto.


 


“Loan
Amount” shall have the meaning set forth in the Recitals hereto.


 


“Loan Documents” shall mean this Security
Instrument, the Note, the Assignment, and any and all other agreements,
instruments, certificates or documents executed and delivered by Borrower, any
of the Cross-collateralized Borrowers or any Affiliate of Borrower in
connection with the Loan, together with any supplements, amendments,
modifications or extensions thereof.


 


“Loan Year” shall mean each 365 day period
(or 366 day period if the month of February in a leap year is included)
commencing on the first day of the month following the Closing Date (provided,
however, that the first Loan Year shall also include the period from the
Closing Date to the end of the month in which the Closing Date occurs).


 


“Loss Proceeds” shall mean, collectively, all
Insurance Proceeds and all Condemnation Proceeds.


 


“Major Contracts” shall mean all Space Leases
in excess of 2,000 square feet, and all Leases, consulting agreements, joint
venture agreements or other contracts between Borrower and a third party
operator (including joint ventures in which Borrower has an interest) relating
to food and beverage operations at the Property.


 


“Major Space Lease” shall mean any Space
Lease of a tenant or Affiliate of such tenant where such tenant or such
Affiliate leases, in the aggregate, five percent (5%) or more of the Total GLA.


 


“Management Agreement” shall have the meaning
set forth in Section 7.02(e) hereof.


 


“Manager” shall mean Morgans Hotel Group
Management LLC, a Delaware limited liability company or any other Person which
manages the Property on behalf of Borrower.


 


“Manager Certification” shall have the
meaning set forth in Section 2.09(d) hereof.


 


“Manager Control Notice” shall have the
meaning set forth in Section 7.02(e) hereof.


 


“Material Adverse Effect” shall mean any
event or condition that has a material adverse effect on (a) the Property, (b)
the business, profits, management, operations or condition (financial or
otherwise) of Borrower, (c) the enforceability, validity, perfection or
priority of the lien of any Loan Document or (d) the ability of Borrower to
perform any obligations under any Loan Document.


 


“Maturity”, when used with respect to the
Note, shall mean the Maturity Date set forth in the Note or such other date
pursuant to the Note on which the final payment of principal, and premium, if
any, on the Note becomes due and payable as therein or herein provided, whether
at Stated Maturity or by declaration of acceleration, or otherwise.


 


19





















 


“Maturity Date” shall mean the Maturity Date
set forth in the Note, as the same may be extended from time to time pursuant
to the terms of the Note.


 


“Mez Loan” shall mean certain mezzanine loans
from Wachovia Bank, National Association to MMRDH Senior Mezz Holding Company
LLC, a Delaware limited liability company, MMRDH Intermediate Mezz Holding
Company LLC, a Delaware limited liability company, and MMRDH Junior Mezz
Holding Company LLC, a Delaware limited liability company, evidenced by certain
promissory notes of even date herewith in the aggregate original principal sum
of $106,250,000.00 which are secured by first priority pledges of the direct or
indirect ownership interest of such Persons in Borrower.


 


“Mez Payment Escrow Account” shall mean the
Escrow Account maintained pursuant to Section 5.14 hereof.


 


“Mez Payment Amount” shall mean, as of any
Payment Date, the amount of principal and interest then due and payable
pursuant to the terms of the Mez Loan.


 


“Mez Payment Sub-Account” shall mean the
Sub-Account of the Central Account established pursuant to Section 5.02 hereof
into which the Mez Payment Amount shall be deposited.


 


“Multiemployer Plan” shall mean a
multiemployer plan defined as such in Section 3(37) of ERISA to which
contributions have been, or were required to have been, made by Borrower,
Guarantor or any ERISA Affiliate.


 


“Net Capital Expenditures” shall mean for any period the amount by
which Capital Expenditures during such period exceeds reimbursements for such
items during such period from the Engineering Escrow Account or any other
Account established pursuant to the Loan Documents.


 


“Net Operating Income” shall mean in each
Fiscal Year or portion thereof during the term hereof, Operating Income less
Operating Expenses.


 


“Net Proceeds” shall mean the excess of (a)(i)
the purchase price (at foreclosure or otherwise) actually received by Lender
with respect to the Property as a result of the exercise by Lender of its
rights, powers, privileges and other remedies after the occurrence of an Event
of Default, or (ii) in the event that Lender (or Lender’s nominee) is the
purchaser at foreclosure by credit bid, then the amount of such credit bid, in
either case, over (b) all costs and expenses, including, without limitation,
all attorneys’ fees and disbursements and any brokerage fees, if applicable,
incurred by Lender in connection with the exercise of such remedies, including
the sale of such Property after a foreclosure against the Property.


 


“Note” shall have the meaning set forth in
the Recitals hereto.


 


“O&M Deposit” shall have the meaning set
forth in Section 5.11 hereof.


 


20





















 


“O&M Operative Period” shall mean the
period of time commencing upon the determination by Lender that the Debt
Service Coverage (tested quarterly except during the continuance of an O&M
Operative Period, in which event the Debt Service Coverage shall be tested
monthly and shall be calculated based upon information contained in the reports
furnished to Lender pursuant to Section 2.09 hereof) is less than the Debt
Service Coverage set forth on Exhibit H
attached hereto and made a part hereof and terminating on the Payment Date next
succeeding the date upon which Lender determines that the Debt Service Coverage
for two (2) consecutive calendar quarters is equal to or greater than the Debt
Service Coverage set forth on Exhibit H.  In determining whether an O&M Operative
Period exists, the calculation of Debt Service Coverage shall be made assuming
the Principal Amount was prepaid in an amount equal to the O&M Deposit.


 


“O&M Program” shall have the meaning set
forth in Section 16.03 hereof.


 


“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 accessible through the internet website www.treas.gov/ofac/t11sdn.pdf.


 


“Officer’s Certificate” shall mean a
certificate delivered to Lender by Borrower which is signed on behalf of
Borrower by an authorized representative of Borrower which states that the
items set forth in such certificate are true, accurate and complete in all
respects.


 


“Operating Expenses” shall mean, in each
Fiscal Year or portion thereof during the term hereof, all expenses directly
attributable to the operation, repair and/or maintenance of the Property
including, without limitation, (a) Impositions, (b) insurance premiums, (c)
management fees, whether or not actually paid, equal to the greater of the
actual management fees and four percent (4%) of total revenues of the Property,
(d) costs attributable to the operation, repair and maintenance of the systems
for heating, ventilating and air conditioning the Improvements and actually
paid for by Borrower and (e) with respect to the bar premises at the Hudson
Hotel only and the food and beverage premises at the Royalton Hotel only,
consulting fees which are to be paid to third party consultants that are not
Affiliates of Borrower, any SPE Pledgor, Manager or Guarantor and are employed
by Manager, 58th Street Bar Company LLC and/or 43rd
Restaurant LLC and which are actually paid over to such consultants.  Operating Expenses shall not include
interest, principal and premium, if any, due under the Note or otherwise in
connection with the Debt, income taxes, extraordinary capital improvement
costs, any non-cash charge or expense such as depreciation or amortization or
any item of expense otherwise includable in Operating Expenses which is paid
directly by any tenant except real estate taxes paid directly to any taxing
authority by any tenant.


 


“Operating Income” shall mean, in each Fiscal
Year or portion thereof during the term hereof, all revenue derived by Borrower
arising from the Property including, without limitation, room revenues, vending
machines revenues, beverage revenues, food revenues, Borrower’s pro rata share
of net profits of Food and Beverage Lessee/Operators, and packaging revenues,
rental revenues (whether denominated as basic rent, additional rent, escalation
payments, electrical payments or otherwise) and other fees and charges payable
pursuant to Leases or otherwise in connection with the Property, and business
interruption, rent or other similar insurance proceeds.  


 


21





















 


Operating Income shall not include
(a) Insurance Proceeds (other than proceeds of rent, business interruption
or other similar insurance allocable to the applicable period) and Condemnation
Proceeds (other than Condemnation Proceeds arising from a temporary taking or
the use and occupancy of all or part of the applicable Property allocable to
the applicable period), or interest accrued on such Condemnation Proceeds, (b)
proceeds of any financing, (c) proceeds of any sale, exchange or transfer of
the Property or any part thereof or interest therein, (d) capital contributions
or loans to Borrower or an Affiliate of Borrower, (e) any item of income
otherwise includable in Operating Income but paid directly by any tenant to a
Person other than Borrower except for real estate taxes paid directly to any
taxing authority by any tenant, (f) any other material extraordinary,
non-recurring revenues which for the purposes hereof shall be deemed not to
include room revenues, (g) Rent paid by or on behalf of any lessee under a
Space Lease which is the subject of any proceeding or action relating to its
bankruptcy, reorganization or other arrangement pursuant to the Bankruptcy Code
or any similar federal or state law or which has been adjudicated a bankrupt or
insolvent unless such Space Lease has been affirmed by the trustee in such
proceeding or action, (h) Rent paid by or on behalf of any lessee under a Lease
the demised premises of which are not occupied either by such lessee or by a
sublessee thereof; (i) Rent paid by or on behalf of any lessee under a Lease in
whole or partial consideration for the termination of any Lease, or (j) sales
tax rebates from any Governmental Authority.


 


“Operation and Maintenance Expense Escrow Account”
shall mean the Escrow Account maintained pursuant to Section 5.09 hereof
relating to the payment of Operating Expenses (exclusive of Basic Carrying
Costs).


 


“Operation and Maintenance Expense Sub-Account”
shall mean the Sub-Account of the Central Account established pursuant to
Section 5.02 hereof into which sums allocated for the payment of Cash Expenses,
Net Capital Expenditures and approved Extraordinary Expenses shall be deposited.


 


“Pad Owners” shall mean any owner of any fee
interest in property contiguous to or surrounded by the Property who has
entered into or is subject to a reciprocal easement agreement or other
agreement or agreements with Borrower either (a) in connection with an existing
or potential improvement on such property or (b) relating to or affecting the
Property.


 


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


 


“Payment Guaranty” shall have the meaning set
forth in the Recitals hereto.


 


“PBGC” shall mean the Pension Benefit
Guaranty Corporation established under ERISA, or any successor thereto.


 


“Permitted Encumbrances” shall have the
meaning set forth in Section 2.05(a) hereof.


 


“Permitted Liens” shall mean (a) the
liens created by the Loan Documents, (b) liens, if any, for Impositions or
other charges not yet due and payable and not delinquent, (c) any workers’,
mechanics’ or other similar liens on the Property provided that any such lien
is bonded or discharged within thirty (30) days after Borrower first receives
notice of such lien, (d) such 


 


22





















 


other title and survey exceptions as Lender approves
in writing in Lender’s discretion (e) the liens of any Mez Loan, (f) Space
Leases entered into in accordance with the terms hereof and (g) the Lien
created by the Pledge and Security Agreement dated as of August 4, 2004 made
by, inter alia, NorthStar Hospitality LLC, a Delaware limited liability company
in favor of Allianz Risk Transfer, pursuant to which NorthStar Hospitality LLC
pledged a 49.9% membership interest in Morgans Hotel Group LLC (“MHG”).


 


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


 


“Plan” shall mean an employee benefit or
other plan established or maintained by Borrower, Guarantor or any ERISA
Affiliate during the five-year period ended prior to the date of this Security
Instrument or to which Borrower, Guarantor or any ERISA Affiliate makes, is
obligated to make or has, within the five year period ended prior to the date
of this Security Instrument, been required to make contributions (whether or
not covered by Title IV of ERISA or Section 302 of ERISA or Section 401(a) or
412 of the Code), other than a Multiemployer Plan.


 


“Premises” shall have the meaning set forth
in granting clause (a) of this Security Instrument.


 


“Principal Amount” shall mean the Loan Amount
as such amount may be reduced from time to time pursuant to the terms of this
Security Instrument, the Note or the other Loan Documents.


 


“Principal Payments” shall mean all payments
of principal made pursuant to the terms of the Note.


 


“Prohibited Person” means any Person
identified on the OFAC List or any other Person or foreign country or agency
thereof with whom a U.S. Person may not conduct business or transactions by
prohibition of Federal law or Executive Order of the President of the United
States of America.


 


“Property” shall have the meaning set forth
in the granting clauses of this Security Instrument.


 


“Property Agreements” shall mean all
agreements, grants of easements and/or rights-of-way, reciprocal easement
agreements, permits, declarations of covenants, conditions and restrictions,
disposition and development agreements, planned unit development agreements,
parking agreements, party wall agreements or other instruments affecting the
Property, including, without limitation any agreements with Pad Owners, but not
including any brokerage agreements, management agreements, service contracts,
Space Leases or the Loan Documents.


 


23





















 


“Rate Cap Agreement” shall mean that certain
interest rate protection agreement (together with the confirmation and
schedules relating thereto) with a notional amount which shall not at any time
be less than the Principal Amount and a LIBOR Rate strike price equal to four
and one-quarter percent (4.25%) entered into by Borrower in accordance with the
terms hereof or of the other Loan Documents and any similar interest rate cap
or collar agreements subsequently entered into in replacement or substitution
therefor by Borrower with respect to the Loan, including, without limitation,
the Replacement Rate Cap Agreement.


 


“Rating Agency” shall mean each of Standard
& Poor’s Ratings Services, Inc., a division of The McGraw-Hill Company,
Inc. (“Standard & Poor’s”), Fitch, Inc., and Moody’s Investors
Service, Inc. (“Moody’s”), collectively, and any successor to any of
them; provided, however, that at any time after a Securitization, “Rating
Agency” shall mean those of the foregoing rating agencies that from time to
time rate the securities issued in connection with such Securitization.


 


“Realty” shall have the meaning set forth in
Section 2.05(b) hereof.


 


“Recurring Replacement Expenditures” shall
mean Capital Expenditures performed at the Property from time to time which are
set forth in the Approved Annual Budget.


 


“Recurring Replacement Reserve Monthly
Installment” shall mean the amount per month set forth on Exhibit B attached hereto and made a part
hereof (the “Initial Recurring Installments”)  until the end of the first (1st) Loan Year
and an amount per month in each subsequent Loan Year or portion thereof
occurring prior to the Maturity Date equal to four percent (4%) of the total
revenues of the Property divided by twelve (12).


 


“Recurring Replacement Reserve Escrow Account”
shall mean the Escrow Account maintained pursuant to Section 5.08 hereof
relating to the payment of Recurring Replacement Expenditures.


 


“Recurring Replacement Reserve Sub-Account”
shall mean the Sub-Account of the Central Account established pursuant to
Section 5.02 hereof into which the Recurring Replacement Reserve Monthly
Installment shall be deposited.


 


“Release” shall have the meaning set forth in
Section 15.03 hereof.


 


“Release Price” shall mean an amount equal to
(i) one hundred fifteen percent (115%) of the Allocated Loan Amount or (ii)
with respect to the Delano Hotel only one hundred ten percent (110%) of the
Allocated Loan Amount.


 


“Rent Account” shall mean one or more
Eligible Account(s) maintained in a bank acceptable to Lender in the joint
names of Lender and Borrower.


 


“Rents” shall have the meaning set forth in
granting clause (f) of this Security Instrument.


 


“Rent Roll” shall have the meaning set forth
in Section 2.05(o) hereof.


 


24





















 


“Replacement Expenditures” shall mean Capital
Expenditures performed at the Property from time to time which are not set
forth in the Approved Annual Budget.


 


“Replacement Rate Cap Agreement” shall have
the meaning set forth in Section 5.10 hereof.


 


“Required Debt Service Coverage” shall mean a
Debt Service Coverage of not less than 1.2:1.


 


“Required Debt Service Payment” shall mean,
as of any Payment Date, (a) the amount of interest and principal then due and
payable pursuant to the Note, together with any other sums due thereunder,
including, without limitation, any prepayments required to be made or for which
notice has been given under this Security Instrument, Default Rate Interest and
premium, if any, paid in accordance therewith plus (b) pursuant to Section
5.04, reasonable out-of-pocket fees incurred by Lender in connection with its
administration and servicing of the Central Account.


 


“Required Engineering Work” shall mean the
immediate engineering and/or environmental remediation work set forth on Exhibit D attached hereto and made a part
hereof.


 


“Retention Amount” shall have the meaning set
forth in Section 3.04(b)(vii) hereof.


 


“RevPAR” shall mean the average revenues per
available room per day.


 


“RevPAR Yield Index” shall mean the
percentage amount determined by dividing the RevPAR of the Property by the
RevPAR of the Property’s Competitive Set as determined by Smith Travel Research
(“STR”) or if STR is no longer publishing, a successor reasonably
acceptable to Lender.


 


“Sale” shall have the meaning set forth in
Section 9.04 hereof.


 


“SAOT Deposit” shall mean the amount required
to be deposited into the SAOT Sub-Account pursuant to Section 5.05 hereof which
is equal to the SAOT Expenditures for the calendar month immediately preceding
the calendar month in which such deposit is made.


 


“SAOT Escrow Account” shall mean the Escrow
Account maintained pursuant to Section 5.07 hereof.


 


“SAOT Expenditures” shall mean sales, use or occupancy
or other taxes due to any Governmental Authority imposed on charges for the use
of guest rooms at the Property.


 


“SAOT Sub-Account” shall mean the Sub-Account
of the Central Account established pursuant to Section 5.02 hereof into which
the SAOT Deposit shall be deposited.


 


“Securities Act” shall mean the Securities
Act of 1933, as the same shall be amended from time to time.


 


25





















 


“Securitization” shall mean a public or
private offering of securities by Lender or any of its Affiliates or their
respective successors and assigns which are collateralized, in whole or in
part, by this Security Instrument.


 


“Security Deposit Account” shall have the
meaning set forth in Section 5.01 hereof.


 


“Security Instrument” shall mean this
Security Instrument as originally executed or as it may hereafter from time to
time be supplemented, amended, modified or extended by one or more indentures
supplemental hereto.


 


“Servicer” shall have the meaning set forth
in Section 5.04 hereof.


 


“Single Purpose Entity” shall mean a
corporation, partnership, joint venture, limited liability company, trust or
unincorporated association, which is formed or organized solely for the purpose
of holding, directly, an ownership interest in the Property or, with respect to
SPE Pledgor, holding an ownership interest in a Food and Beverage
Lessee/Operator or, with respect to General Partner, holding an ownership
interest in and managing a Person which holds an ownership interest in the
Property, does not engage in any business unrelated to the Property, does not
have any assets other than those related to its interest in the Property or any
indebtedness other than as permitted by this Security Instrument or the other
Loan Documents, has its own separate books and records and has its own
accounts, in each case which are separate and apart from the books and records
and accounts of any other Person, holds itself out as being a Person separate
and apart from any other Person and which otherwise satisfies the criteria of
the Rating Agency, as in effect on the Closing Date, for a special-purpose
bankruptcy-remote entity.


 


“Solvent” shall mean, as to any Person, that
(a) the sum of the assets of such Person, at a fair valuation, exceeds its
liabilities, including contingent liabilities, (b) such Person has sufficient
capital with which to conduct its business as presently conducted and as
proposed to be conducted and (c) such Person has not incurred debts, and does
not intend to incur debts, beyond its ability to pay such debts as they
mature.  For purposes of this definition,
“debt” means any liability on a claim, and “claim” means (a) a
right to payment, whether or not such right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured, or (b) a right to an equitable remedy
for breach of performance if such breach gives rise to a payment, whether or
not such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured, unmatured, disputed, undisputed, secured, or
unsecured.  With respect to any such
contingent liabilities, such liabilities shall be computed in accordance with
GAAP at the amount which, in light of all the facts and circumstances existing
at the time, represents the amount which can reasonably be expected to become
an actual or matured liability.


 


“Space Leases” shall mean any Lease or
sublease thereunder (including, without limitation, any Major Space Lease) or
any other agreement providing for the use and occupancy of a portion of the
Property as the same may be amended, renewed or supplemented.


 


26





















 


“SPE Pledgor” shall have the meaning set
forth on Exhibit I attached hereto
and made a part hereof.


 


“Spread Maintenance Premium” shall mean (a)
the amount of the prepayment, multiplied by (b) the LIBOR Margin multiplied by
(c) a fraction, the numerator of which is the number of full and partial months
from such prepayment date through the end of the first (1st) Loan Year and the
denominator of which is 12; provided, however, if the Loan is repaid in whole
or in part as a result of an IPO at any time prior to the Payment Date
occurring in July, 2006, the Spread Maintenance Premium with respect to the
Class A Portion of the Loan that is prepaid shall be calculated based on the
above formula, and the Spread Maintenance Premium with respect to the Class B
Portion being prepaid shall be calculated based on (a) the amount of the
prepayment relating to the Class B Portion multiplied by (b) the Class B Margin
multiplied by (c) a fraction the numerator of which is the number of full and
partial months from said prepayment date through the Payment Date occurring in January,
2006, and the denominator of which is 12.


 


“State” shall mean any of the states which
are members of the United States of America.


 


“Stated Maturity” when used with respect to
the Note or any installment of interest and/or principal payment thereunder,
shall mean the date specified in the Note as the fixed date on which a payment
of all or any portion of principal and/or interest is due and payable, as such
date may be extended from time to time pursuant to the terms of the Note.


 


“Sub-Accounts” shall have the meaning set
forth in Section 5.02 hereof.


 


“Substantial Casualty” shall have the meaning
set forth in Section 3.04(a)(iv) hereof.


 


“Taking” shall mean a condemnation or taking
pursuant to the lawful exercise of the power of eminent domain.


 


“Third Party Disbursements” shall mean to the
extent actually deposited in the Central Account, (a) that portion of Rents
collected by Borrower or Manager, on behalf of Food and Beverage
Lessee/Operators consisting of the sum of (i) operating revenues and sales
taxes (to the extent not otherwise reserved for in the SAOT Sub-Account or SAOT
Escrow Account) of such Food and Beverage Lessee/Operators plus (ii)
distributions by such Food and Beverage Lessee/Operators to its members other
than distributions to members who are Affiliates of Borrower, (b) Rents and/or
deposits with respect to gift shop, laundry and parking facilities and movie
rentals, which Borrower is contractually obligated to collect on behalf of
third parties that are not Affiliates of Borrower, SPE Pledgor, Manager or
Guarantor which are to be, and actually have been, paid to such third parties, and
(c) gratuities or service charges or other similar receipts which are to be
paid to any employees of Manager and/or the Food and Beverage Lessee/Operators
or Persons occupying similar positions for performing similar duties and which
are actually paid to such Persons.


 


“Total GLA” shall mean the total gross
leasable area of the Property, including all Space Leases.


 


27





















 


“Transfer” shall mean the conveyance,
assignment, sale, mortgaging, encumbrance, pledging, hypothecation, granting of
a security interest in, granting of options with respect to, or other
disposition of (directly or indirectly, voluntarily or involuntarily, by
operation of law or otherwise, and whether or not for consideration or of
record) all or any portion of any legal or beneficial interest (a) in all or
any portion of the Property; (b) if Borrower or, if Borrower is a partnership,
any General Partner, is a corporation, in the stock of Borrower or any General
Partner; (c) in Borrower (or any trust of which Borrower is a trustee); or (d)
if Borrower is a limited or general partnership, joint venture, limited
liability company, trust, nominee trust, tenancy in common or other
unincorporated form of business association or form of ownership interest, in
any Person having a legal or beneficial ownership in Borrower, excluding any
legal or beneficial interest in any constituent limited partner, if Borrower is
a limited partnership, or in any non-managing member, if Borrower is a limited
liability company, unless such interest would, or together with all other
direct or indirect interests in Borrower which were previously transferred,
aggregate 49% or more of the partnership or membership, as applicable, interest
in Borrower or would result in any Person who, as of the Closing Date, did not
own, directly or indirectly, 49% or more of the partnership or membership, as
applicable, interest in Borrower, owning, directly or indirectly, 49% or more
of the partnership or membership, as applicable, interest in Borrower and
excluding any legal or beneficial interest in any General Partner unless such
interest would, or together with all other direct or indirect interest in the
General Partner which were previously transferred, aggregate 49% or more of the
partnership or membership, as applicable, interest in the General Partner (or
result in a change in control of the management of the General Partner from the
individuals exercising such control immediately prior to the conveyance or
other disposition of such legal or beneficial interest) and shall also include,
without limitation to the foregoing, the following:  an installment sales agreement wherein
Borrower agrees to sell the Property or any part thereof or any interest
therein for a price to be paid in installments; an agreement by Borrower
leasing all or substantially all of the Property to one or more Persons
pursuant to a single or related transactions, or a sale, assignment or other
transfer of, or the grant of a security interest in, Borrower’s right, title
and interest in and to any Leases or any Rent; any instrument subjecting the
Property to a condominium regime or transferring ownership to a cooperative corporation;
and the dissolution or termination of Borrower or the merger or consolidation
of Borrower with any other Person. 
Notwithstanding the foregoing or anything to the contrary contained in
any other Loan Document, “Transfer” shall not include (a) any sale, transfer,
conveyance, encumbrance or assignment of any direct or indirect legal or
beneficial ownership interest in Borrower, provided, in each case, that no
Person or group of Affiliated Persons which did not, as of the Closing Date,
own 49% or more of Borrower, obtains a direct or indirect ownership interest in
Borrower of more than 49% or obtains, directly or indirectly, Control of
Borrower (other than a Person to whom Control is attributed under the
Securities Act solely by virtue of being a director of a public company and
other than, in connection with an IPO, to a Person with respect to which Edward
Scheetz or David Hamamoto have the title and responsibilities of a chief
executive officer, president and/or chief financial officer and a seat on the
board of directors of the public company formed in connection with the IPO so
long as Edward Scheetz or David Hamamoto remain actively involved in the
management of the operations of Borrower) unless such Person or group of
Affiliated Persons (the “Sub Owners”) are owned by a Person or group of
Affiliated Persons (the “Parent Owner”), which owned 49% or more of the
direct and/or indirect legal or beneficial 


 


28





















 


ownership interest in Borrower prior to such
transfer and either (A) Borrower had previously delivered an opinion of counsel
which discussed the substantive non-consolidation of such Parent Owner in form
and substance and prepared by counsel reasonably acceptable to Lender or (B)
Sub-Owner owns such interest in Borrower through ownership of a Person or group
of Affiliated Persons with respect to which such a substantive
non-consolidation opinion was previously delivered to Lender or (b) subsequent
to an IPO, transfers of publicly traded stock on a national stock exchange or
on the NASDAQ Stock Market in the normal course of business and not in
connection with a tender offer or a sale of the public Person resulting from
the IPO or substantially all of the assets of such Person.


 


“Trustee”
shall mean the Person or Persons identified in this Security Instrument as the
trustee hereunder and its or their successors and assigns.


 


“UCC” shall mean the Uniform Commercial Code
as in effect from time to time in the State in which the Realty is located.


 


“Uniform System of Accounts” shall mean the
Uniform System of Accounts for the Lodging Industry, 9th Revised Edition,
Educational Institute of the American Hotel and Motel Association and Hotel
Association of New York City (1996), as from time to time amended.


 


“Unscheduled Payments” shall mean (a) all
Loss Proceeds that Borrower has elected or is required to apply to the
repayment of the Debt pursuant to this Security Instrument, the Note or any
other Loan Documents, (b) any funds representing a voluntary or involuntary
principal prepayment other than scheduled Principal Payments and (c) any
Net Proceeds.


 


“Use Requirements” shall mean any and all
building codes, permits, certificates of occupancy or compliance, laws,
regulations, or ordinances (including, without limitation, health, pollution,
fire protection, medical and day-care facilities, waste product and sewage
disposal regulations), restrictions of record, easements, reciprocal easements,
declarations or other agreements affecting the use of the Property or any part
thereof.


 


“Welfare Plan” shall mean an employee welfare
benefit plan as defined in Section 3(1) of ERISA established or maintained by
Borrower, Guarantor or any ERISA Affiliate or that covers any current or former
employee of Borrower, Guarantor or any ERISA Affiliate.


 


“Work” shall have the meaning set forth in
Section 3.04(a)(i) hereof.


 


ARTICLE II:  REPRESENTATIONS,
WARRANTIES 

AND COVENANTS OF BORROWER


 


Section 2.01. 
Payment of Debt.  Borrower
will pay the Debt at the time and in the manner provided in the Note and the
other Loan Documents, all in lawful money of the United States of America in
immediately available funds.


 


Section 2.02. 
Representations, Warranties and Covenants of Borrower.  Borrower represents and warrants to and
covenants with Lender:


 


29





















 


(a)           Organization and Authority. 
Borrower (i) is a limited liability company, general partnership,
limited partnership or corporation, as the case may be, duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
formation, (ii) has all requisite power and authority and all necessary
licenses and permits to own and operate the Property and to carry on its
business as now conducted and as presently proposed to be conducted and (iii)
is duly qualified, authorized to do business and in good standing in the
jurisdiction where the Property is located and in each other jurisdiction where
the conduct of its business or the nature of its activities makes such qualification
necessary.  If Borrower is a limited
liability company, limited partnership or general partnership, each general
partner or managing member, as applicable, of Borrower which is a corporation
is duly organized, validly existing, and in good standing under the laws of the
jurisdiction of its incorporation.


 


(b)           Power.  Borrower and, if applicable,
each General Partner has full power and authority to execute, deliver and
perform, as applicable, the Loan Documents to which it is a party, to receive the
borrowings thereunder, to execute and deliver the Note and to grant to Lender a
first priority, perfected and continuing lien on and security interest in the
Property, subject only to the Permitted Encumbrances.


 


(c)           Authorization of Borrowing.  The
execution, delivery and performance of the Loan Documents to which Borrower is
a party, the making of the borrowings thereunder, the execution and delivery of
the Note, the grant of the liens on the Property pursuant to the Loan Documents
to which Borrower is a party and the consummation of the Loan are within the
powers of Borrower and have been duly authorized by Borrower and, if
applicable, the General Partners, by all requisite action (and Borrower hereby
represents that no approval or action of any member, limited partner or
shareholder, as applicable, of Borrower, which has not been received or taken,
is required to authorize any of the Loan Documents to which Borrower is a
party) and will constitute the legal, valid and binding obligation of Borrower,
enforceable against Borrower in accordance with their terms, except as
enforcement may be stayed or limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors’ rights generally and by general
principles of equity (whether considered in proceedings at law or in equity)
and will not (i) violate any provision of its partnership agreement or
partnership certificate or certificate of incorporation or by-laws, or
operating agreement, certificate of formation or articles of organization, as
applicable, or, to its knowledge, any law, judgment, order, rule or regulation
of any court, arbitration panel or other Governmental Authority, domestic or
foreign, or other Person affecting or binding upon Borrower or the Property, or
(ii) violate any provision of any indenture, agreement, mortgage, deed of
trust, contract or other instrument to which Borrower or, if applicable, any
General Partner is a party or by which any of their respective property, assets
or revenues are bound, or be in conflict with, result in an acceleration of any
obligation or a breach of or constitute (with notice or lapse of time or both)
a default or require any payment or prepayment under, any such indenture,
agreement, mortgage, deed of trust, contract or other instrument, or (iii)
result in the creation or imposition of any lien, except those in favor of
Lender as provided in the Loan Documents to which it is a party.


 


(d)           Consent.  Neither Borrower nor, if
applicable, any General Partner, is required to obtain any consent, approval or
authorization from, or to file any declaration or statement with, any
Governmental Authority or other agency in connection with or as a condition to
the 


 


30





















 


execution,
delivery or performance of this Security Instrument, the Note or the other Loan
Documents which has not been so obtained or filed.


 


(e)           Interest Rate.  To
Borrower’s knowledge, the rate of interest paid under the Note and the method
and manner of the calculation thereof do not violate any usury or other law or
applicable Legal Requirement.


 


(f)            Other Agreements. 
Borrower is not a party to nor is otherwise bound by any agreements or
instruments which, individually or in the aggregate, are reasonably likely to
have a Material Adverse Effect.  Neither
Borrower nor, if applicable, any General Partner, is in violation of its
organizational documents or other restriction or any agreement or instrument by
which it is bound, or any judgment, decree, writ, injunction, order or award of
any arbitrator, court or Governmental Authority, or any Legal Requirement, in
each case, applicable to Borrower or the Property, except for such violations
that would not, individually or in the aggregate, have a Material Adverse
Effect.


 


(g)           Maintenance of Existence.  (i) Borrower
is familiar with all of the criteria of the Rating Agency required to qualify
as a special-purpose bankruptcy-remote entity and Borrower, SPE Pledgor and, if
applicable, each General Partner at all times since their formation have been
duly formed and existing and shall preserve and keep in full force and effect
their existence as a Single Purpose Entity.


 


(ii)           Borrower, SPE Pledgor and, if applicable,
each General Partner, at all times since their organization have complied, and
will continue to comply, with the provisions of its certificate and agreement
of partnership or certificate of incorporation and by-laws or articles of
organization, certificate of formation and operating agreement, as applicable,
and the laws of its jurisdiction of organization relating to partnerships,
corporations or limited liability companies, as applicable.


 


(iii)          Borrower, SPE Pledgor and, if applicable,
each General Partner have done or caused to be done and will do all things
necessary to observe organizational formalities and preserve their existence
and Borrower, SPE Pledgor and, if applicable, each General Partner will not
amend, modify or otherwise change the certificate and agreement of partnership
or certificate of incorporation and by-laws or articles of organization,
certificate of formation and operating agreement, as applicable, or other
organizational documents of Borrower, SPE Pledgor and, if applicable, each
General Partner except for immaterial amendments which do not modify the Single
Purpose Entity provisions.


 


(iv)          Borrower, SPE Pledgor and, if applicable,
each General Partner, have at all times accurately maintained, and will
continue to accurately maintain, their respective financial statements,
accounting records and other partnership, company or corporate documents
separate from those of any other Person and Borrower and SPE Pledgor will file
its own tax returns or, if Borrower, SPE Pledgor and/or, if applicable, General
Partner is part of a consolidated group for purposes of filing tax returns,
Borrower, SPE Pledgor and General Partner, as applicable will be shown as
separate members of such group.  Borrower,
SPE Pledgor and, if applicable, each General Partner have not at any time since
their formation commingled, 


 


31





















 


and will not commingle,
their respective assets with those of any other Person other than the other
Cross-collateralized Borrowers and will maintain their assets in such a manner
such that it will not be costly or difficult to segregate, ascertain or
identify their individual assets from those of any other Person.  Borrower, SPE Pledgor and, if applicable,
each General Partner will not permit any Affiliate independent access to their
bank accounts.  Borrower, SPE Pledgor and,
if applicable, each General Partner have at all times since their formation
accurately maintained and utilized, and will continue to accurately maintain
and utilize, their own separate bank accounts, payroll and separate books of
account, stationery, invoices and checks.


 


(v)           Borrower, SPE Pledgor and, if applicable,
each General Partner, have at all times paid, and will continue to pay, their
own liabilities from their own separate assets and shall each allocate and
charge fairly and reasonably any overhead which Borrower, SPE Pledgor and, if
applicable, any General Partner, shares with any other Person, including,
without limitation, for office space and services performed by any employee of
another Person.


 


(vi)          Borrower, SPE Pledgor and, if applicable,
each General Partner, have at all times identified themselves, and will
continue to identify themselves, in all dealings with the public, under their
own names and as separate and distinct entities and shall correct any known
misunderstanding regarding their status as separate and distinct entities.  Borrower, SPE Pledgor and, if applicable,
each General Partner, have not at any time identified themselves, and will not
identify themselves, as being a division of any other Person.


 


(vii)         Borrower, SPE Pledgor and, if applicable,
each General Partner, have been at all times, and will continue to be,
adequately capitalized in light of the nature of their respective businesses.


 


(viii)        Borrower, SPE Pledgor and, if applicable,
each General Partner, (A) have not owned, do not own and will not own any
assets or property other than, with respect to Borrower, the Property and any
incidental personal property necessary for the ownership, management or
operation of the Property, with respect to the SPE Pledgor, the ownership of an
interest in a Food and Beverage Lessee/Operator and, with respect to General
Partner, if applicable, its interest in Borrower, (B) have not engaged and will
not engage in any business other than the ownership, management and operation
of the Property or with respect to the SPE Pledgor, the ownership of an
interest in a Food and Beverage Lessee/Operator, or with respect to General
Partner, if applicable, its interest in Borrower, (C) have not incurred and
will not incur any debt, secured or unsecured, direct or contingent (including
guaranteeing any obligation), other than (w) the Loan, (x) unsecured trade and
operational debt which (1) is not evidenced by a note, (2) is incurred in the
ordinary course of the operation of the Property, (3) does not, together with
any equipment financing, incurred pursuant to clause (y) hereof, exceed in the
aggregate one percent (1%) of the Loan Amount or, with respect to the SPE
Pledgor, $100,000, and (4) is, unless being contested in accordance with the
terms of this Security Instrument, paid prior to the earlier to occur of the sixtieth
(60th) day after the date incurred and the date when due, (y) equipment
financing relating to equipment used in connection with the operation of the
Property which (1) is incurred in the ordinary course of the operation of the
Property, (2) does not, together with any unsecured trade and operational debt
incurred pursuant to clause (x) hereof, exceed one percent (1%) of the Loan
Amount or, with respect to the SPE Pledgor, $100,000, (3) 


 


32





















 


which is secured only by
the financed equipment, and (4) is, unless being contested in accordance with
the terms of this Security Instrument, paid prior to the earlier to occur of
the sixtieth (60th) day after the date incurred and the date when due and (z)
with respect to the General Partner, the Mez Loan, (D) have not pledged and
will not pledge their assets for the benefit of any other Person, other than,
with respect to the Mez Loan, the pledge by each General Partner of its direct
or indirect interest in Borrower and the pledges by the SPE Pledgors and (E)
have not made and will not make any loans or advances to any Person (including
any Affiliate).


 


(ix)           None of Borrower, SPE Pledgor nor, if
applicable, any General Partner will change its name or principal place of
business unless thirty (30) days prior written notice thereof is provided to
Lender.


 


(x)            None of Borrower, SPE Pledgor nor, if
applicable, any General Partner has, and neither of such Persons will have, any
subsidiaries other than with respect to Borrower, General Partner and, with
respect to SPE Pledgor, as disclosed in writing to Lender.


 


(xi)           Borrower and SPE Pledgor will preserve
and maintain its existence as a Delaware limited liability company and all
material rights, privileges, tradenames, if any, and franchises.


 


(xii)          None of Borrower, SPE Pledgor nor, if
applicable, any General Partner, will merge or consolidate with, or sell all or
substantially all of its respective assets to any Person, or liquidate, wind up
or dissolve itself (or suffer any liquidation, winding up or dissolution).  None of Borrower, SPE Pledgor nor, if
applicable, any General Partner will acquire any business or assets from, or
capital stock or other ownership interest of, or be a party to any acquisition
of, any Person.


 


(xiii)         Borrower, SPE Pledgor and, if applicable,
each General Partner, has not at any time since their formation assumed,
guaranteed or held themselves out to be responsible for, and will not assume,
guarantee or hold themselves out to be responsible for the liabilities or the
decisions or actions respecting the daily business affairs of their partners,
shareholders or members or any predecessor company, corporation or partnership,
each as applicable, any Affiliates, or any other Persons other than (i) in
connection with the Loan and (ii) obligations relating to the
Cross-collateralized Properties which have been fully satisfied with proceeds
of the Loan.  Neither Borrower nor SPE
Pledgor has at any time since its formation acquired, and will not acquire,
obligations or securities of its partners or shareholders, members or any
predecessor company, corporation or partnership, each as applicable, or any
Affiliates.  Borrower, SPE Pledgor and,
if applicable, each General Partner, have not at any time since their formation
made, and will not make, loans to its partners, members or shareholders or any
predecessor company, corporation or partnership, each as applicable, or any
Affiliates of any of such Persons. 
Borrower, SPE Pledgor and, if applicable, each General Partner, have no
known contingent liabilities nor do they have any material financial
liabilities under any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which such Person is a party or by which it is
otherwise bound other than under the Loan Documents.


 


33





















 


(xiv)        Neither Borrower nor SPE Pledgor has at
any time since its formation entered into and are not a party to, and, will not
enter into or be a party to, any transaction with its Affiliates, members,
partners or shareholders, as applicable, or any Affiliates thereof except in
the ordinary course of business of Borrower or SPE Pledgor, as applicable, on
terms which are no less favorable to Borrower or SPE Pledgor, as applicable, than
would be obtained in a comparable arm’s length transaction with an unrelated
third party.


 


(xv)         If Borrower or SPE Pledgor is a limited
partnership or a limited liability company, the General Partner shall be a
corporation or limited liability company whose sole asset is its ownership interests
in Borrower and SPE Pledgor, as applicable, and the General Partner will at all
times comply, and will cause Borrower or SPE Pledgor to comply, with each of
the representations, warranties, and covenants contained in this Section
2.02(g) as if such representation, warranty or covenant was made directly by
such General Partner.


 


(xvi)        Borrower and SPE Pledgor shall at all
times cause there to be at least two (2) duly appointed members, with respect
to Borrower, and at least one (1) duly appointed member, with respect to SPE
Pledgor, of the board of directors or board of managers or other governing
board or body, as applicable (each an “Independent Director”), of, if
Borrower or SPE Pledgor is a corporation, Borrower and SPE Pledgor, as
applicable, and, if Borrower or SPE Pledgor is a limited partnership or limited
liability company, of the General Partner, reasonably satisfactory to Lender
who shall not have been at the time of such individual’s appointment, and may
not be or have been at any time (A) a shareholder or SPE Pledgor, officer,
director, attorney, counsel, partner, member or employee of Borrower or any of
the foregoing Persons or Affiliates thereof, (B) a customer or creditor of, or
supplier or service provider to, Borrower or SPE Pledgor or any of its
shareholders, partners, members or their Affiliates, (C) a member of the
immediate family of any Person referred to in (A) or (B) above or (D) a Person Controlling,
Controlled by or under common Control with any Person referred to in (A)
through (C) above.  A natural person who
otherwise satisfies the foregoing definition except for being the Independent
Director of a Single Purpose Entity Affiliated with Borrower, SPE Pledgor or
General Partner shall not be disqualified from serving as an Independent
Director if such individual is at the time of initial appointment, or at any
time while serving as the Independent Director, an Independent Director of a
Single Purpose Entity Affiliated with Borrower or SPE Pledgor or General
Partner if such individual is an Independent Director provided by a
nationally-recognized company that provides professional independent directors.


 


(xvii)       Borrower, SPE Pledgor and, if applicable,
each General Partner, shall not cause or permit the board of directors or board
of managers or other governing board or body, as applicable, of Borrower, SPE
Pledgor or, if applicable, each General Partner, to take any action which,
under the terms of any certificate of incorporation, by-laws, certificate of
formation, operating agreement or articles of organization with respect to any
common stock, requires a vote of the board of directors of Borrower or SPE Pledgor,
or, if applicable, the General Partner, unless at the time of such action there
shall be at least two (2) members, with respect to Borrower, and at least one
(1) member, with respect to SPE Pledgor, who is or are Independent Director(s).


 


34





















 


(xviii)      Borrower, SPE Pledgor and, if applicable,
each General Partner shall pay the salaries of their own employees and maintain
a sufficient number of employees in light of their contemplated business
operations.


 


(xix)         Borrower and SPE Pledgor shall, and shall
cause their Affiliates to, conduct their business so that the assumptions made
with respect to Borrower and SPE Pledgor in that certain opinion letter
relating to substantive non-consolidation dated the date hereof (the “Insolvency
Opinion”) delivered in connection with the Loan shall be true and correct
in all respects.  Notwithstanding the
foregoing, holders of direct or indirect equity interests in Borrower may
deliver to Lender so called “bottom up” guarantees which do not result in a
Material Adverse Effect or result in a change in any obligation of Borrower or
Guarantor to Lender subsequent to the earlier to occur of (A) a Securitization
and (B) an IPO, provided (x) subsequent to a Securitization, Borrower shall
deliver to Lender a letter from each Rating Agency confirming that any rating
issued by the Rating Agency in connection with a Securitization will not, as a
result of the delivery of such guaranty, be downgraded from the then current
ratings thereof, qualified or withdrawn, and (y) Borrower shall deliver to
Lender an update of the Insolvency Opinion addressing the guaranty and confirming
the conclusions thereof which shall be in form and substance satisfactory to
Lender.


 


Notwithstanding anything to
the contrary contained in this Section 2.02(g), provided Borrower and SPE
Pledgor are each a Delaware single member limited liability company which
satisfies the single purpose bankruptcy remote entity requirements of each
Rating Agency for a single member limited liability company, the foregoing
provisions of this Section 2.02(g) shall not apply to the General Partner.


 


(h)           No Defaults.  No Default or Event of Default
has occurred and is continuing or would occur as a result of the consummation
of the transactions contemplated by the Loan Documents.  Borrower is not in default in the payment or
performance of any of its Contractual Obligations in any respect.


 


(i)            Consents and Approvals. 
Borrower and, if applicable, each General Partner, have obtained or made
all necessary (i) consents, approvals and authorizations, and registrations and
filings of or with all Governmental Authorities and (ii) consents,
approvals, waivers and notifications of partners, stockholders, members,
creditors, lessors and other nongovernmental Persons, in each case, which are
required to be obtained or made by Borrower or, if applicable, the General
Partner, in connection with the execution and delivery of, and the performance
by Borrower of its obligations under, the Loan Documents.


 


(j)            Investment Company Act Status, etc. 
Borrower is not (i) an “investment company,” or a company “controlled”
by an “investment company,” as such terms are defined in the Investment Company
Act of 1940, as amended, (ii) a “holding company” or a “subsidiary company” of
a “holding company” or an “affiliate” of either a “holding company” or a “subsidiary
company” within the meaning of the Public Utility Holding Company Act of 1935,
as amended, or (iii) subject to any other federal or state law or regulation
which purports to restrict or regulate its ability to borrow money.


 


35





















 


(k)           Compliance with Law. 
Borrower is in compliance in all material respects with all Legal
Requirements to which it or the Property is subject, including, without
limitation, all Environmental Statutes, the Occupational Safety and Health Act
of 1970, the Americans with Disabilities Act and ERISA.  No portion of the Property has been or will be
purchased, improved, fixtured, equipped or furnished with proceeds of any
illegal activity and, to the best of Borrower’s knowledge, no illegal
activities are being conducted at or from the Property.


 


(l)            Financial Information.  All
financial data that has been delivered by Borrower to Lender (i) is true,
complete and correct in all material respects, (ii) accurately represents the
financial condition and results of operations of the Persons covered thereby as
of the date on which the same shall have been furnished, and (iii) in the case
of audited financial statements, has been prepared in accordance with GAAP and
the Uniform System of Accounts (or such other accounting basis as is reasonably
acceptable to Lender) throughout the periods covered thereby.  As of the date hereof, none of Borrower, SPE
Pledgor nor, if applicable, any General Partner, has any contingent liability,
liability for taxes or other unusual or forward commitment not reflected in
such financial statements delivered to Lender. 
Since the date of the last financial statements delivered by Borrower to
Lender except as otherwise disclosed in such financial statements or notes
thereto, there has been no change in the assets, liabilities or financial
position of Borrower SPE Pledgor nor, if applicable, any General Partner, or in
the results of operations of Borrower which would have a Material Adverse
Effect.  None of Borrower, SPE Pledgor
nor, if applicable, any General Partner, has incurred any obligation or
liability, contingent or otherwise not reflected in such financial statements
which would have a Material Adverse Effect.


 


(m)          Transaction Brokerage Fees. 
Borrower has not dealt with any financial advisors, brokers,
underwriters, placement agents, agents or finders in connection with the
transactions contemplated by this Security Instrument except for the Carlton
Group.  Borrower hereby agrees to
indemnify and hold Lender harmless for, from and against any and all claims,
liabilities, costs and expenses of any kind in any way relating to or arising
from (i) a claim by any Person including without limitation the Carlton Group
and any of their Affiliates that such Person acted on behalf of Borrower in
connection with the transactions contemplated herein or (ii) any breach of the
foregoing representation.  The provisions
of this subsection (m) shall survive the repayment of the Debt.


 


(n)           Federal Reserve Regulations.  No
part of the proceeds of the Loan will be used for the purpose of “purchasing”
or “carrying” any “margin stock” within the meaning of Regulations T, U or X of
the Board of Governors of the Federal Reserve System or for any other purpose
which would be inconsistent with such Regulations T, U or X or any other
Regulations of such Board of Governors, or for any purposes prohibited by Legal
Requirements or by the terms and conditions of the Loan Documents.


 


(o)           Pending Litigation. 
There are no actions, suits or proceedings pending or, to the best
knowledge of Borrower, threatened against or affecting Borrower or the Property
in any court or before any Governmental Authority which if adversely determined
either individually or collectively has or is reasonably likely to have a
Material Adverse Effect.


 


36


















 


(p)           Solvency; No Bankruptcy.  Each
of Borrower, SPE Pledgor and, if applicable, the General Partner, (i) is and
has at all times been Solvent and will remain Solvent immediately upon the
consummation of the transactions contemplated by the Loan Documents and (ii) is
free from bankruptcy, reorganization or arrangement proceedings or a general
assignment for the benefit of creditors and is not contemplating the filing of
a petition under any state or federal bankruptcy or insolvency laws or the
liquidation of all or a major portion of such Person’s assets or property and
Borrower has no knowledge of any Person contemplating the filing of any such
petition against it or, if applicable, the General Partner.  None of the transactions contemplated hereby
will be or have been made with an intent to hinder, delay or defraud any
present or future creditors of Borrower or SPE Pledgor and Borrower has
received reasonably equivalent value in exchange for its obligations under the
Loan Documents.  Borrower’s assets do not,
and immediately upon consummation of the transaction contemplated in the Loan
Documents will not, constitute unreasonably small capital to carry out its
business as presently conducted or as proposed to be conducted.  Borrower does not intend to, nor believes
that it will, incur debts and liabilities beyond its ability to pay such debts
as they may mature.


 


(q)           Use of Proceeds.  The
proceeds of the Loan shall be applied by Borrower to, inter  alia,
(i) satisfy certain loans presently encumbering all or a part of the Property
and (ii) pay certain transaction costs incurred by Borrower in connection with
the Loan.  No portion of the proceeds of
the Loan will be used for family, personal, agricultural or household use.


 


(r)            Tax Filings.  Borrower, SPE Pledgor and, if
applicable, each General Partner, have filed all federal, state and local tax
returns required to be filed and have paid or made adequate provision for the
payment of all federal, state and local taxes, charges and assessments payable
by Borrower, SPE Pledgor and, if applicable, the General Partners.  Borrower, SPE Pledgor and, if applicable, the
General Partners, believe that their respective tax returns properly reflect
the income and taxes of Borrower, SPE Pledgor and said General Partner, if any,
for the periods covered thereby, subject only to reasonable adjustments
required by the Internal Revenue Service or other applicable tax authority upon
audit.


 


(s)           Not Foreign Person. 
Borrower is not a “foreign person” within the meaning of §1445(f)(3) of
the Code.


 


(t)            ERISA.  (i) The
assets of Borrower and Guarantor are not and will not become treated as “plan
assets”, whether by operation of law or under regulations promulgated under
ERISA.  Each Plan and Welfare Plan, and,
to the knowledge of Borrower, each Multiemployer Plan, is in compliance in all
material respects with, and has been administered in all material respects in
compliance with, its terms and the applicable provisions of ERISA, the Code and
any other applicable Legal Requirement, and no event or condition has occurred
and is continuing as to which Borrower would be under an obligation to furnish
a report to Lender under clause (ii)(A) of this Section.  Other than an application for a favorable determination
letter with respect to a Plan, there are no pending issues or claims before the
Internal Revenue Service, the United States Department of Labor or any court of
competent jurisdiction related to any Plan or Welfare Plan under which
Borrower, Guarantor or any ERISA Affiliate, directly or indirectly (through an
indemnification agreement or otherwise), could be subject to any material risk
of liability under Section 409 or 502(i) of ERISA or Section 4975 of the
Code.  No Welfare Plan, other than a 


 


37





















 


Multiemployer
Plan, provides or will provide benefits, including, without limitation, death
or medical benefits (whether or not insured) with respect to any current or
former employee of Borrower, Guarantor or any ERISA Affiliate beyond his or her
retirement or other termination of service other than (A) coverage mandated by
applicable law, (B) death or disability benefits that have been fully provided
for by fully paid up insurance or (C) severance benefits.


 


(ii)           Borrower will furnish to Lender as soon
as possible, and in any event within ten (10) days after Borrower knows or has
reason to believe that any of the events or conditions specified below with
respect to any Plan, Welfare Plan or Multiemployer Plan has occurred or exists,
an Officer’s Certificate setting forth details respecting such event or
condition and the action, if any, that Borrower or its ERISA Affiliate proposes
to take with respect thereto (and a copy of any report or notice required to be
filed with or given to the PBGC (or any other relevant Governmental Authority))
by Borrower or an ERISA Affiliate with respect to such event or condition, if
such report or notice is required to be filed with the PBGC or any other
relevant Governmental Authority:


 


(A)          any reportable event, as defined in Section
4043 of ERISA and the regulations issued thereunder, with respect to a Plan, as
to which PBGC has not by regulation waived the requirement of Section 4043(a)
of ERISA that it be notified within thirty (30) days of the occurrence of such
event (provided that a failure to meet the minimum funding standard of Section
412 of the Code and of Section 302 of ERISA, including, without limitation, the
failure to make on or before its due date a required installment under Section
412(m) of the Code and of Section 302(e) of ERISA, shall be a reportable event
regardless of the issuance of any waivers in accordance with Section 412(d) of
the Code), and any request for a waiver under Section 412(d) of the Code for
any Plan;


 


(B)           the distribution under Section 4041 of ERISA
of a notice of intent to terminate any Plan or any action taken by Borrower or
an ERISA Affiliate to terminate any Plan;


 


(C)           the institution by PBGC of proceedings under
Section 4042 of ERISA for the termination of, or the appointment of a trustee
to administer, any Plan, or the receipt by Borrower or any ERISA Affiliate of a
notice from a Multiemployer Plan that such action has been taken by PBGC with
respect to such Multiemployer Plan;


 


(D)          the complete or partial withdrawal from a
Multiemployer Plan (or other employee benefit plan) by Borrower or any ERISA
Affiliate that results in liability under Section 4201 or 4204 of ERISA
(including the obligation to satisfy secondary liability as a result of a
purchaser default) or the receipt by Borrower or any ERISA Affiliate of notice
from a Multiemployer Plan that it is in reorganization or insolvency pursuant
to Section 4241 or 4245 of ERISA or that it intends to terminate or has
terminated under Section 4041A of ERISA;


 


38





















 


(E)           the institution of a proceeding by a
fiduciary of any Multiemployer Plan against Borrower or any ERISA Affiliate to
enforce Section 515 of ERISA, which proceeding is not dismissed within thirty
(30) days;


 


(F)           the adoption of an amendment to any Plan
that, pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA, would
result in the loss of tax-exempt status of the trust of which such Plan is a
part if Borrower or an ERISA Affiliate fails to timely provide security to the
Plan in accordance with the provisions of said Sections; or


 


(F)           the imposition of a lien or a security
interest in connection with a Plan.


 


(iii)          No liability under Title IV of ERISA has
been incurred by Borrower, Guarantor or any ERISA Affiliate that has not been
satisfied in full, and no condition exists that presents a material risk to
Borrower, Guarantor or any ERISA Affiliate of incurring any liability under
such Title, other than liability for premiums due the PBGC, which
payments have been or will be made when due. 
To the extent this representation applies to Sections 4064, 4069 or 4204
of Title IV of ERISA, it is made not only with respect to the ERISA Plans but
also with respect to any employee benefit plan, program, agreement or
arrangement subject to Title IV of ERISA to which Borrower, Guarantor or any
ERISA Affiliate made, or was required to make, contributions during the past
six years.


 


(iv)          Borrower shall not knowingly engage in or
permit any transaction in connection with which Borrower, Guarantor or any
ERISA Affiliate could be reasonably subject to either a material civil penalty
or material tax assessed pursuant to Section 502(i) or 502(l) of ERISA or
Section 4975 of the Code; Borrower shall not permit any Welfare Plan, other
than a Multiemployer Plan, to provide benefits, including without limitation,
medical benefits (whether or not insured), with respect to any current or
former employee of Borrower, Guarantor or any ERISA Affiliate beyond his or her
retirement or other termination of service other than (A) coverage
mandated by applicable law, (B) death or disability benefits that have been
fully provided for by paid up insurance or otherwise or (C) severance benefits,
permit the assets of Borrower or Guarantor to become “plan assets”, whether by
operation of law or under regulations promulgated under ERISA; and Borrower and
Guarantor shall not adopt, amend (except as may be required by applicable law)
or increase the amount of any benefit or amount payable under, or permit any
ERISA Affiliate to adopt, amend (except as may be required by applicable law)
or increase the amount of any benefit or amount payable under, any employee
benefit plan (including, without limitation, any employee welfare benefit plan
that is not a Multiemployer Plan) or other plan, policy or arrangement, except
for normal increases in the ordinary course of business consistent with past
practice that, in the aggregate, do not result in a material increase in
benefits expense to Borrower, Guarantor or any ERISA Affiliate.


 


39





















 


(u)           Labor Matters.  No
organized work stoppage or labor strike is pending or threatened by employees
or other laborers at the Property and none of Borrower, SPE Pledgor nor Manager
(i) is involved in or threatened with any material labor dispute, grievance or
litigation relating to labor matters involving any employees and other laborers
at the Property, including, without limitation, violation of any federal, state
or local labor, safety or employment laws (domestic or foreign) and/or charges
of unfair labor practices or discrimination complaints; (ii) has engaged in any
unfair labor practices within the meaning of the National Labor Relations Act
or the Railway Labor Act; or (iii) except as otherwise disclosed in writing to
Lender, is a party to, or bound by, any collective bargaining agreement or
union contract with respect to employees and other laborers at the Property and
no such agreement or contract is currently being negotiated by Borrower, SPE
Pledgor, Manager or any of their Affiliates.


 


(v)           Borrower’s Legal Status. 
Borrower’s exact legal name that is indicated on the signature page
hereto, organizational identification number and place of business or, if more
than one, its chief executive office, as well as Borrower’s mailing address, if
different, which were identified by Borrower to Lender and contained in this
Security Instrument, are true, accurate and complete.  Borrower (i) will not change its name, its
place of business or, if more than one place of business, its chief executive
office, or its mailing address or organizational identification number if it
has one without giving Lender at least thirty (30) days prior written notice of
such change, (ii) if Borrower does not have an organizational identification
number and later obtains one, Borrower shall promptly notify Lender of such
organizational identification number and (iii) Borrower will not change its
type of organization, jurisdiction of organization or other legal structure.


 


(w)          Compliance with Anti-Terrorism, Embargo and
Anti-Money Laundering Laws.  (i) None of Borrower, SPE Pledgor, General
Partner, any Guarantor, or any Person who owns any equity interest in or
Controls Borrower, SPE Pledgor, General Partner or any Guarantor currently is
identified on the OFAC List or otherwise qualifies as a Prohibited Person, and
Borrower and SPE Pledgor have implemented procedures, approved by General
Partner, to ensure that no Person who now or hereafter owns an equity interest
in Borrower, SPE Pledgor or General Partner is a Prohibited Person or
Controlled by a Prohibited Person, (ii) no proceeds of the Loan will be used to
fund any operations in, finance any investments or activities in or make any
payments to, Prohibited Persons, and (iii) none of Borrower, SPE Pledgor,
General Partner, or any Guarantor are in violation of any Legal Requirements
relating to anti-money laundering or anti-terrorism, including, without
limitation, Legal Requirements related to transacting business with Prohibited
Persons or the requirements of the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001, U.S. Public Law 107-56, and the related regulations issued thereunder, including
temporary regulations, all as amended from time to time.  No tenant under a Space Lease at the Property
currently is identified on the OFAC List or otherwise qualifies as a Prohibited
Person, and, to the best of Borrower’s knowledge, no tenant at the Property is
owned or Controlled by a Prohibited Person. 
Borrower has determined that Manager has implemented procedures,
approved by Borrower, to ensure that no tenant under a Space Lease at the
Property is a Prohibited Person or owned or Controlled by a Prohibited Person.


 


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Section 2.03. 
Further Acts, etc. 
Borrower will, at the cost of Borrower, and without expense to Lender,
do, execute, acknowledge and deliver all and every such further acts, deeds,
conveyances, mortgages or deeds of trust, as applicable, assignments, notices
of assignments, transfers and assurances as Lender or Trustee shall, from time
to time, reasonably require for the better assuring, conveying, assigning,
transferring, and confirming unto Lender and Trustee the property and rights
hereby mortgaged, given, granted, bargained, sold, alienated, enfeoffed,
conveyed, confirmed, pledged, assigned and hypothecated, or which Borrower may
be or may hereafter become bound to convey or assign to Lender and Trustee, or
for carrying out or facilitating the performance of the terms of this Security
Instrument or for filing, registering or recording this Security Instrument
and, on demand, will execute and deliver and hereby authorizes Lender to
execute in the name of Borrower or without the signature of Borrower to the
extent Lender may lawfully do so, one or more financing statements, chattel
mortgages or comparable security instruments to evidence more effectively the
lien hereof upon the Property.  Borrower
hereby authorizes Lender and Trustee, severally, to file any financing
statements, and amendments to financing statements, in any jurisdictions and
with any filing offices as Lender or Trustee, severally, may determine, in its
sole discretion, are necessary or advisable to perfect the security interest
granted to Trustee hereunder.  Such
financing statements may describe the collateral in the same manner as
described in this document or may contain an indication or description of
collateral that describes such property in any other manner Lender or Trustee
so chooses, including, without limitation, describing such property as “all
assets, whether now owned or hereafter acquired” or “all personal property,
whether now owned or hereafter acquire”. 
Borrower grants to Lender an irrevocable power of attorney coupled with
an interest for the purpose of protecting, perfecting, preserving and realizing
upon the interests granted pursuant to this Security Instrument and to effect
the intent hereof, all as fully and effectually as Borrower might or could do;
and Borrower hereby ratifies all that Lender shall lawfully do or cause to be
done by virtue hereof.  Upon receipt of
an affidavit of an officer of Lender as to the loss, theft, destruction or
mutilation of the Note or any other Loan Document which is not of public
record, and, in the case of any such mutilation, upon surrender and
cancellation of such Note or other applicable Loan Document, Borrower will
issue, in lieu thereof, a replacement Note or other applicable Loan Document,
dated the date of such lost, stolen, destroyed or mutilated Note or other Loan
Document in the same principal amount thereof and otherwise of like tenor.


 


Section 2.04. 
Recording of Security Instrument, etc.  Borrower forthwith upon the execution and
delivery of this Security Instrument and thereafter, from time to time, will
cause this Security Instrument, and any security instrument creating a lien or
security interest or evidencing the lien hereof upon the Property and each
instrument of further assurance to be filed, registered or recorded in such
manner and in such places as may be required by any present or future law in
order to publish notice of and fully protect the lien or security interest
hereof upon, and the interest of Lender in, the Property.  Borrower will pay all filing, registration or
recording fees, and all expenses incident to the preparation, execution and
acknowledgment of this Security Instrument, any mortgage or deed of trust, as
applicable, supplemental hereto, any security instrument with respect to the
Property and any instrument of further assurance, and all federal, state,
county and municipal, taxes, duties, imposts, assessments and charges arising
out of or in connection with the execution and delivery of this Security
Instrument, any mortgage or deed of 


 


41





















 


trust,
as applicable, supplemental hereto, any security instrument with respect to the
Property or any instrument of further assurance, except where prohibited by law
to do so, in which event Lender may declare the Debt to be immediately due and
payable.  Borrower shall hold harmless
and indemnify Lender and Trustee, and their successors and assigns, against any
liability incurred as a result of the imposition of any tax on the making and
recording of this Security Instrument.


 


Section 2.05. 
Representations, Warranties and Covenants Relating to the Property.  Borrower represents and warrants to and
covenants with Lender with respect to the Property as follows:


 


(a)           Lien Priority.  This
Security Instrument is a valid and enforceable first lien on the Property, free
and clear of all encumbrances and liens having priority over the lien of this
Security Instrument, except for the items set forth as exceptions to,
subordinate matters in, or otherwise disclosed in the title insurance policy
insuring the lien of this Security Instrument, none of which, individually or
in the aggregate, materially interfere with the benefits of the security
intended to be provided by this Security Instrument, materially affect the
value or marketability of the Property, impair the use or operation of the
Property for the use currently being made thereof or impair Borrower’s ability
to pay its obligations in a timely manner (such items being the “Permitted
Encumbrances”).


 


(b)           Title.  Borrower has, subject only to
the Permitted Encumbrances, good, insurable and marketable fee simple title to
the Premises, Improvements and Fixtures (collectively, the “Realty”) and
to all easements and rights benefiting the Realty and has the right, power and
authority to mortgage, encumber, give, grant, bargain, sell, alien, enfeoff,
convey, confirm, pledge, assign, and hypothecate the Property.  Borrower will preserve its interest in and
title to the Property and will forever warrant and defend the same to Lender
against any and all claims made by, through or under Borrower and will forever
warrant and defend the validity and priority of the lien and security interest
created herein against the claims of all Persons whomsoever claiming by,
through or under Borrower.  The foregoing
warranty of title shall survive the foreclosure of this Security Instrument and
shall inure to the benefit of and be enforceable by Lender in the event Lender
acquires title to the Property pursuant to any foreclosure.  In addition, there are no outstanding options
or rights of first refusal to purchase the Property or Borrower’s ownership
thereof.


 


(c)           Taxes and Impositions.  All
taxes and other Impositions and governmental assessments due and payable in
respect of, and affecting, the Property have been paid.  Borrower has paid all Impositions which
constitute special governmental assessments in full, except for those
assessments which are permitted by applicable Legal Requirements to be paid in
installments, in which case all installments which are due and payable have
been paid in full.  There are no pending,
or to Borrower’s best knowledge, proposed special or other assessments for
public improvements or otherwise affecting the Property, nor are there any
contemplated improvements to the Property that may result in such special or
other assessments.


 


(d)           Casualty; Flood Zone.  The
Realty is in good repair and free and clear of any damage, destruction or
casualty (whether or not covered by insurance) that would materially 


 


42





















 


affect
the value of the Realty or the use for which the Realty was intended, there
exists no structural or other material defects or damages in or to the Property
and Borrower has not received any written notice from any insurance company or
bonding company of any material defect or inadequacies in the Property, or any
part thereof, which would materially and adversely affect the insurability of the
same or cause the imposition of extraordinary premiums or charges thereon or of
any termination or threatened termination of any policy of insurance or
bond.  No portion of the Premises is
located in an “area of special flood hazard,” as that term is defined in the
regulations of the Federal Insurance Administration, Department of Housing and
Urban Development, under the National Flood Insurance Act of 1968, as amended
(24 CFR § 1909.1), other than as disclosed in the surveys of the Property
delivered to Lender by Borrower in connection with the origination of the Loan,
or Borrower has obtained the flood insurance required by Section 3.01(a)(vi)
hereof. The Premises either does not lie in a 100 year flood plain that has
been identified by the Secretary of Housing and Urban Development or any other
Governmental Authority or, if it does, Borrower has obtained the flood
insurance required by Section 3.01(a)(vi) hereof.


 


(e)           Completion; Encroachment.  All
Improvements necessary for the efficient use and operation of the Premises have
been completed and, other than as disclosed in the surveys of the Property
delivered to Lender by Borrower in connection with the origination of the Loan,
none of said Improvements lie outside the boundaries and building restriction lines
of the Premises.  Except as set forth in
the title insurance policy insuring the lien of this Security Instrument, no
improvements on adjoining properties encroach upon the Premises.


 


(f)            Separate Lot.  The
Premises are taxed separately without regard to any other real estate and
constitute a legally subdivided lot under all applicable Legal Requirements
(or, if not subdivided, no subdivision or platting of the Premises is required
under applicable Legal Requirements), and for all purposes may be mortgaged,
encumbered, conveyed or otherwise dealt with as an independent parcel.  The Property does not benefit from any tax
abatement or exemption.


 


(g)           Use.  The existence of all
Improvements, the present use and operation thereof and the access of the Premises
and the Improvements to all of the utilities and other items referred to in
paragraph (k) below are in compliance in all material respects with all Leases
affecting the Property and all applicable Legal Requirements, including,
without limitation, Environmental Statutes, Development Laws and Use
Requirements.  Borrower has not received
any notice from any Governmental Authority alleging any uncured violation
relating to the Property of any applicable Legal Requirements.


 


(h)           Licenses and Permits.  Borrower
currently holds and will continue to hold all certificates of occupancy,
licenses, registrations, permits, consents, franchises and approvals of any
Governmental Authority or any other Person which are material for the lawful
occupancy and operation of the Realty or which are material to the ownership or
operation of the Property or the conduct of Borrower’s business.  All such certificates of occupancy, licenses,
registrations, permits, consents, franchises and approvals are current and in
full force and effect.


 


(i)            Intentionally Omitted.


 


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(j)            Property Proceedings. 
There are no actions, suits or proceedings pending or threatened in any
court or before any Governmental Authority or arbitration board or tribunal (i)
relating to (A) the zoning of the Premises or any part thereof,
(B) any certificates of occupancy, licenses, registrations, permits,
consents or approvals issued with respect to the Property or any part thereof,
(C) the condemnation of the Property or any part thereof, or (D) the
condemnation or relocation of any roadways abutting the Premises required for
access or the denial or limitation of access to the Premises or any part
thereof from any point of access to the Premises, (ii) asserting that
(A) any such zoning, certificates of occupancy, licenses, registrations,
permits, consents and/or approvals do not permit the operation of any material
portion of the Realty as presently being conducted, (B) any material
improvements located on the Property or any part thereof cannot be located
thereon or operated with their intended use or (C) the operation of the
Property or any part thereof is in violation in any material respect of any
Environmental Statutes, Development Laws or other Legal Requirements or Space
Leases or Property Agreements or (iii) which might (A) affect the validity or
priority of any Loan Document or (B) have a Material Adverse Effect.  Borrower is not aware of any facts or
circumstances which may give rise to any actions, suits or proceedings
described in the preceding sentence.


 


(k)           Utilities.  The Premises has all necessary
legal access to water, gas and electrical supply, storm and sanitary sewerage
facilities, other required public utilities (with respect to each of the aforementioned
items, by means of either a direct connection to the source of such utilities
or through connections available on publicly dedicated roadways directly
abutting the Premises or through permanent insurable easements benefiting the
Premises), fire and police protection, parking, and means of direct access
between the Premises and public highways over recognized curb cuts (or such
access to public highways is through private roadways which may be used for
ingress and egress pursuant to permanent insurable easements).


 


(l)            Mechanics’ Liens.  The
Property is free and clear of any mechanics’ liens or liens in the nature
thereof, and no rights are outstanding that under law could give rise to any
such liens, any of which liens are or may be prior to, or equal with, the lien
of this Security Instrument, except those which are insured against by the
title insurance policy insuring the lien of this Security Instrument.


 


(m)          Intentionally Omitted.


 


(n)           Insurance.  The Property is insured in
accordance with the requirements set forth in Article III hereof.


 


(o)           Space Leases.


 


(i)            Borrower has delivered a true, correct
and complete schedule of all Space Leases as of the date hereof, which
accurately and completely sets forth in all material respects, for each such
Space Lease, the following (collectively, the “Rent Roll”):  the name and address of the tenant with the
name, title and telephone number of the contact person of such tenant; the
lease expiration date, extension and renewal provisions; the base rent and
percentage rent payable; all additional rent and pass-through obligations; and
the security deposit held thereunder and the location of such deposit.


 


44





















 


(ii)           Each Space Lease constitutes the legal,
valid and binding obligation of Borrower and, to the knowledge of Borrower, is
enforceable against the tenant thereof. 
No default exists, or with the passing of time or the giving of notice
would exist, (A) under any Major Space Lease or (B) under any other Space
Leases which would, in the aggregate, have a Material Adverse Effect.


 


(iii)          No tenant under any Space Lease has, as
of the date hereof, paid Rent more than thirty (30) days in advance, and the
Rents under such Space Leases have not been waived, released, or otherwise
discharged or compromised.


 


(iv)          All work to be performed by Borrower
under the Space Leases has been substantially performed, all contributions to
be made by Borrower to the tenants thereunder have been made except for any
held-back amounts, and all other conditions precedent to each such tenant’s
obligations thereunder have been satisfied.


 


(v)           Except as previously disclosed to Lender
in writing, there are no options to terminate any Space Lease.


 


(vi)          Each tenant under a Major Space Lease has
entered into occupancy of the demised premises to the extent required under the
terms of its Major Space Lease, and each such tenant is open and conducting
business with the public in the demised premises.  To the best knowledge of Borrower, after due
inquiry, each tenant under a Lease other than a Major Space Lease has entered
into occupancy of its demised premises under its Lease to the extent required
under the terms of its Lease and each such tenant is open and conducting
business with the public in the demised premises.


 


(vii)         Borrower has delivered to Lender true,
correct and complete copies of all Space Leases described in the Rent Roll.


 


(viii)        Each Space Lease is in full force and
effect and (except as disclosed on the Rent Roll) has not been assigned,
modified, supplemented or amended in any way.


 


(ix)           To Borrower’s best knowledge, no tenant
under a Space Lease has filed any bankruptcy, reorganization or arrangement
proceedings or made a general assignment for the benefit of creditors.


 


(x)            No Space Lease provides any party with
the right to obtain a lien or encumbrance upon the Property superior to the
lien of this Security Instrument.


 


(p)           Property Agreements.


 


(i)            Borrower has delivered to Lender true,
correct and complete copies of all Property Agreements.


 


(ii)           No Property Agreement provides any party
with the right to obtain a lien or encumbrance upon the Property superior to
the lien of this Security Instrument.


 


45





















 


(iii)          No default exists or with the passing of
time or the giving of notice or both would exist under any Property Agreement
which would, individually or in the aggregate, have a Material Adverse Effect.


 


(iv)          Borrower has not received or given any
written communication which alleges that a default exists or, with the giving
of notice or the lapse of time, or both, would exist under the provisions of
any Property Agreement.


 


(v)           No condition exists whereby Borrower or
any future owner of the Property may be required to purchase any other parcel
of land which is subject to any Property Agreement or which gives any Person a
right to purchase, or right of first refusal with respect to, the Property.


 


(vi)          To the best knowledge of Borrower, no
offset or any right of offset exists respecting continued contributions to be
made by any party to any Property Agreement except as expressly set forth
therein. Except as previously disclosed to Lender in writing, no material
exclusions or restrictions on the utilization, leasing or improvement of the
Property (including non-compete agreements) exists in any Property Agreement.


 


(vii)         All “pre-opening” requirements contained
in all Property Agreements (including, but not limited to, all off-site and on-site
construction requirements), if any, have been fulfilled, and, to the best of
Borrower’s knowledge, no condition now exists whereby any party to any such
Property Agreement could refuse to honor its obligations thereunder.


 


(viii)        All work, if any, to be performed by
Borrower under each of the Property Agreements has been substantially
performed, all contributions to be made by Borrower to any party to such
Property Agreements have been made, and all other conditions to such party’s
obligations thereunder have been satisfied.


 


(q)           Personal Property. 
Borrower has delivered to Lender a true, correct and complete schedule
of all material personal property, if any, owned by Borrower and located upon
the Property or used in connection with the use or operation of the Realty and
Borrower represents that it has good and marketable title to all such material personal
property, free and clear of any liens, except for liens created under the Loan
Documents and liens which describe the equipment and other personal property
owned by tenants.


 


(r)            Leasing Brokerage and Management Fees. 
Except as disclosed pursuant to the Management Agreements, there are no
brokerage fees or commissions payable by Borrower with respect to the leasing
of space at the Property and there are no management fees payable by Borrower
with respect to the management of the Property.


 


(s)           Security Deposits.  All
security deposits with respect to the Property, if any, on the date hereof have
been transferred to the Security Deposit Account on the date hereof, and
Borrower is in compliance with all Legal Requirements relating to such security
deposits as to which failure to comply might, individually or in the aggregate,
have a Material Adverse Effect.


 


46





















 


(t)            Appraisal.  Borrower has no knowledge that
any of the facts or assumptions on which the Appraisal was based are false or
incomplete in any material respect and has no information that would reasonably
suggest that the fair market value determined in the Appraisal does not reflect
the actual fair market value of the Property.


 


(u)           Representations Generally.  The
representations and warranties contained in this Security Instrument, and the
review and inquiry made on behalf of Borrower therefor, have all been made by
Persons having the requisite expertise and knowledge to provide such
representations and warranties.  No
representation, warranty or statement of fact made by or on behalf of Borrower
in this Security Instrument or in any certificate, document or schedule
furnished to Lender pursuant hereto, contains any untrue statement of a
material fact or omits to state any material fact necessary to make statements
contained therein or herein not misleading (which may be to Borrower’s best
knowledge where so provided herein). 
There are no facts presently known to Borrower which have not been
disclosed to Lender which would, individually or in the aggregate, have a
Material Adverse Effect nor as far as Borrower can foresee might, individually
or in the aggregate, have a Material Adverse Effect.


 


(v)           Liquor License.  All
licenses, permits, approvals and consents which are required for the sale and
service of alcoholic beverages on the Premises have been obtained from the
applicable Governmental Authorities.


 


(w)          Credit Card Companies.  The
only Credit Card Companies are Chase Merchant Services and American Express.


 


Section 2.06. 
Removal of Lien.  (a) Borrower shall, at its expense,
maintain this Security Instrument as a first lien on the Property and shall
keep the Property free and clear of all liens and encumbrances of any kind and
nature other than the Permitted Encumbrances. 
Borrower shall, within ten (10) days following the filing thereof,
promptly discharge of record, by bond or otherwise, any such liens and,
promptly upon request by Lender, shall deliver to Lender evidence reasonably
satisfactory to Lender of the discharge thereof.


 


(b)           Without limitation to the provisions of
Section 2.06(a) hereof, Borrower shall (i) unless being contested in good faith
by appropriate proceedings in accordance with Section 2.06(c) hereof, pay, from
time to time when the same shall become due, all claims and demands of
mechanics, materialmen, laborers, and others which, if unpaid, might result in,
or permit the creation of, a lien on the Property or any part thereof, (ii)
cause to be removed of record (by payment or posting of bond or settlement or
otherwise) any mechanics’, materialmens’, laborers’ or other lien on the
Property, or any part thereof, or on the revenues, rents, issues, income or
profit arising therefrom, and (iii) in general, do or cause to be done, without
expense to Lender, everything reasonably necessary to preserve in full the lien
of this Security Instrument.  If Borrower
fails to comply with the requirements of this Section 2.06(b), then, upon five
(5) Business Days’ prior notice to Borrower, Lender may, but shall not be
obligated to, pay any such lien, and Borrower shall, within five (5) Business
Days after Lender’s demand therefor, reimburse Lender for all sums so expended,
together with interest thereon at the Default Rate from the date advanced, all
of which shall be deemed part of the Debt. 
Nothing contained herein shall be deemed a consent or request of Lender,
express or implied, by inference or otherwise, to 


 


47





















 


the
performance of any alteration, repair or other work by any contractor,
subcontractor or laborer or the furnishing of any materials by any materialmen
in connection therewith.


 


(c)           Notwithstanding the foregoing, Borrower may
contest any lien (other than a lien relating to non-payment of Impositions, the
contest of which shall be governed by Section 4.04 hereof) of the type set
forth in subparagraph (b)(ii) of this Section 2.06 provided that, following
prior notice to Lender (i) Borrower is contesting the validity of such lien
with due diligence and in good faith and by appropriate proceedings, without
cost or expense to Lender or any of its agents, employees, officers, or
directors, (ii) Borrower shall preclude the collection of, or other realization
upon, any contested amount from the Property or any revenues from or interest
in the Property, (iii) neither the Property nor any part thereof nor interest
therein, shall be in any danger of being sold, forfeited or lost by reason of
such contest by Borrower, (iv) such contest by Borrower shall not affect the
ownership, use or occupancy of the Property, (v) such contest by Borrower shall
not subject Lender, Trustee or Borrower to the risk of civil or criminal
liability (other than the civil liability of Borrower for the amount of the
lien in question), (vi) such lien is subordinate to the lien of this Security
Instrument, (vii) Borrower has not consented to such lien, (viii) Borrower has
given Lender prompt notice of the filing of such lien and the bonding thereof
by Borrower and, upon request by Lender from time to time, notice of the status
of such contest by Borrower and/or confirmation of the continuing satisfaction
of the conditions set forth in this Section 2.06(c), (ix) Borrower shall
promptly pay the obligation secured by such lien upon a final determination of
Borrower’s liability therefor, and (x) Borrower shall deliver to Lender cash, a
bond or other security acceptable to Lender equal to 125% of the contested
amount pursuant to collateral arrangements reasonably satisfactory to Lender.


 


Section 2.07. 
Cost of Defending and Upholding this Security Instrument Lien.  If any action or proceeding is commenced to
which Lender or Trustee is made a party relating to the Loan Documents and/or
the Property or Lender’s or Trustee’s interest therein or in which it becomes
necessary to defend or uphold the lien of this Security Instrument or any other
Loan Document, Borrower shall, on demand, reimburse Lender and/or Trustee, as
applicable, for all expenses (including, without limitation, reasonable
attorneys’ fees and disbursements) incurred by Lender and/or Trustee, as
applicable, in connection therewith, and such sum, together with interest
thereon at the Default Rate from and after such demand until fully paid, shall
constitute a part of the Debt.


 


Section 2.08. 
Use of the Property. 
Borrower will use, or cause to be used, the Property for such use as is
permitted pursuant to applicable Legal Requirements including, without
limitation, under the certificate of occupancy applicable to the Property, and
which is required by the Loan Documents. 
Borrower shall not suffer or permit the Property or any portion thereof
to be used by the public, any tenant, or any Person not subject to a Lease, in
a manner as is reasonably likely to impair Borrower’s title to the Property, or
in such manner as may give rise to a claim or claims of adverse usage or
adverse possession by the public, or of implied dedication of the Property or
any part thereof.


 


Section 2.09. 
Financial Reports.  (a) Borrower will keep and maintain or
will cause to be kept and maintained on a Fiscal Year basis, in accordance with
GAAP, the Uniform System of Accounts (or such other accounting basis reasonably
acceptable to Lender) consistently applied, 


 


48





















 


proper
and accurate books, tax returns, records and accounts reflecting (i) all
of the financial affairs of Borrower, Guarantor and (ii) all items of income
and expense in connection with the operation of the Property or in connection
with any services, equipment or furnishings provided in connection with the
operation thereof, whether such income or expense may be realized by Borrower
or by any other Person whatsoever, excepting lessees unrelated to and
unaffiliated with Borrower who have leased from Borrower portions of the
Premises for the purpose of occupying the same. 
Lender shall have the right from time to time at all times during normal
business hours upon reasonable notice to examine such books, tax returns,
records and accounts at the office of Borrower or other Person maintaining such
books, tax returns, records and accounts and to make such copies or extracts
thereof as Lender shall desire.  After
the occurrence of an Event of Default, Borrower shall pay any costs and
expenses incurred by Lender to examine Borrower’s, Guarantor’s accounting
records with respect to the Property, as Lender shall determine to be necessary
or appropriate in the protection of Lender’s interest.


 


(b)           Borrower will furnish Lender (i) annually,
within one hundred twenty (120) days following the end of each Fiscal Year of
Borrower and (ii) on a quarterly basis, within forty-five (45) days following
the end of each fiscal quarter of Borrower, with a complete copy of Borrower’s
financial statement consistently applied covering (i) all of the financial
affairs of Borrower and (ii) the operation of the Property for such Fiscal Year
or fiscal quarters, as applicable, and containing a statement of revenues and
expenses, a statement of assets and liabilities and a statement of Borrower’s
equity.  Each annual financial statement
shall be audited by a nationally recognized Independent certified public
accountant that is acceptable to Lender in accordance with GAAP, the Uniform
System of Accounts (or such other accounting basis reasonably acceptable to
Lender).  Together with the financial
statements required to be furnished pursuant to this Section 2.09(b), Borrower
shall furnish to Lender an Officer’s Certificate certifying as of the date
thereof (1) that the financial statements accurately represent the results of
operations and financial condition of Borrower and the Property all in
accordance with GAAP, the Uniform System of Accounts (or such other accounting basis
reasonably acceptable to Lender) consistently applied, and (2) whether
there exists a Default under the Note or any other Loan Document executed and
delivered by Borrower, and if such event or circumstance exists, the nature
thereof, the period of time it has existed and the action then being taken to
remedy such event or circumstance.


 


(c)           During the continuance of an O&M
Operative Period and when requested by Lender, Borrower will furnish Lender
monthly, within twenty (20) days following the end of each month, with a true,
complete and correct cash flow statement with respect to the Property in the
form attached hereto as Exhibit C
and made a part hereof, showing (i) all cash receipts of any kind whatsoever
and all cash payments and disbursements and (ii) year-to-date summaries of
such cash receipts, payments and disbursements, together with a certification
of Manager stating that such cash flow statement is true, complete and correct
and a list of all litigation and proceedings affecting Borrower or the Property
in which the amount involved is $250,000 or more, if not covered by insurance
(or $1,000,000 or more whether or not covered by insurance).


 


(d)           During the continuance of an O&M
Operative Period and when requested by Lender, Borrower will furnish Lender
monthly, within twenty (20) days following the end of each month, with a
certification of Manager stating that all sums released from the Operation and 


 


49





















 


Maintenance
Expense Escrow Account to Borrower have been used to pay Operating Expenses or
will be used within thirty (30) days of the date released to Borrower to pay
Operating Expenses pursuant to Section 5.09 hereof (any such certification or
any certification furnished by a Manager pursuant to clause (c) above, a “Manager
Certification”).


 


(e)           Borrower will furnish Lender annually, within
twenty (20) days following the end of each year and within twenty (20) days
following receipt of such request therefor, with a true, complete and correct
rent roll for the Property, including a list of which tenants are in default
under their respective Leases, dated as of the date of Lender’s request, identifying
the items set forth in the Rent Roll and each tenant that, to Borrower’s
knowledge, has filed a bankruptcy, insolvency, or reorganization proceeding
since delivery of the last such rent roll, and the arrearages, if any, for each
tenant, if any, and such rent roll shall be accompanied by an Officer’s
Certificate, dated as of the date of the delivery of such rent roll, certifying
that such rent roll is true, correct and complete in all material respects as
of its date.


 


(f)            Borrower shall furnish to Lender, within
thirty (30) days after Lender’s request therefor, with such further detailed
information with respect to the operation of the Property and the financial
affairs of Borrower as may be reasonably requested by Lender.


 


(g)           Borrower shall cause Manager to furnish to
Lender, within one hundred twenty (120) days following the end of each Fiscal
Year of Borrower and upon request of Lender, a schedule of tenant security
deposits showing any activity in the Security Deposit Account for such month,
together with a certification of Manager as to the balance in such Security
Deposit Account and that such tenant security deposits are being held in
accordance with all Legal Requirements.


 


(h)           Borrower will furnish Lender annually, within
ninety (90) days after the end of each Fiscal Year, with a report setting forth
(i) the Net Operating Income for such Fiscal Year, (ii) the average
occupancy rate of the Property during such Fiscal Year, (iii) the Capital Expenditures
incurred at the Property during such Fiscal Year and the aggregate Recurring
Replacement Expenditures made in connection therewith, and (iv) the balance
contained in each of the Escrow Accounts as of the end of such Fiscal Year
(which balance Lender shall provide upon Borrower’s written request therefor).


 


(i)            Borrower shall cause Manager to keep and
maintain on a Fiscal Year basis, in accordance with GAAP and the Uniform System
of Accounts (or such other accounting basis reasonably acceptable to Lender)
consistently applied, proper and accurate books, records and accounts on an
accrual basis reflecting (i) all of the financial results of operation and
financial conditions of Manager and (ii) all items of income and expense in
connection with the operation of the Property or in connection with any
services, equipment or furnishings provided in connection with the operation
thereof, whether such income or expense may be realized by Manager or by any
other Person whatsoever.  Lender shall
have the right from time to time at all times during normal business hours upon
reasonable notice to examine such books, records and accounts at the office of
Manager or other Person maintaining such books, records and accounts and to
make such copies or extracts thereof as Lender shall desire.  After the occurrence of an Event of Default,
Borrower shall pay any costs and expenses incurred by Lender to examine 


 


50





















 


Manager’s
accounting records with respect to the Property, as Lender shall determine to
be necessary or appropriate in the protection of Lender’s interest.


 


(j)            Borrower will furnish Lender monthly, within
thirty (30) days following the end of each month, an occupancy summary for the
Property setting forth the occupancy rates, average daily room rates, RevPAR
Yield Index, RevPAR and room revenues for each month of the current calendar
year, as well as year-to-date averages, and such other information as may
customarily be reflected thereon or reasonably requested by Lender, together
with all STR Reports received by Borrower during the preceding month.


 


(k)           Borrower shall and shall cause Guarantor to
furnish to Lender annually, within thirty (30) days of filing its respective
tax return, a copy of such tax return and within ninety (90) days after the end
of each Fiscal Year or in lieu thereof deliver annual financial statements of
Guarantor prepared in accordance with GAAP which are audited by a nationally
recognized Independent certified public accountant that is reasonably acceptable
to Lender.


 


(l)            Borrower shall submit to Lender for Lender’s
written approval an Annual Budget not later than fifteen (15) days prior to the
commencement of each Fiscal Year, in form reasonably satisfactory to Lender
setting forth in reasonable detail budgeted monthly operating income and
monthly operating capital and other expenses for the Property.  Each Annual Budget shall contain, among other
things, management fees, third party service fees, and other expenses as
Borrower may reasonably determine. 
Lender shall have the right to approve such Annual Budget which approval
shall not be unreasonably withheld, and in the event that Lender objects to the
proposed Annual Budget submitted by Borrower, Lender shall advise Borrower of
such objections within fifteen (15) days after receipt thereof (and deliver to
Borrower a reasonably detailed description of such objections) and Borrower
shall, within ten (10) days after receipt of notice of any such objections,
revise such Annual Budget and resubmit the same to Lender.  Lender shall advise Borrower of any
objections to such revised Annual Budget within ten (10) days after receipt
thereof (and deliver to Borrower a reasonably detailed description of such
objections) and Borrower shall revise the same in accordance with the process
described herein until Lender approves an Annual Budget, provided, however,
that if Lender shall not advise Borrower of its objections to any proposed
Annual Budget within the applicable time period set forth in this Section, then
such proposed Annual Budget shall be deemed approved by Lender.  Until such time that Lender approves a
proposed Annual Budget, the most recently Approved Annual Budget shall apply;
provided that, such Approved Annual Budget shall be adjusted to reflect actual
increases in Basic Carrying Costs and utilities expenses and to delete any
non-recurring expenses.  In the event
that Borrower must incur an Extraordinary Expense, then Borrower shall promptly
deliver to Lender a reasonably detailed explanation of such proposed
Extraordinary Expense for Lender’s approval, which approval may be granted or
denied in Lender’s sole and absolute discretion.


 


(m)          In the event that Borrower fails to deliver
any of the financial statements, reports or other information required to be
delivered to Lender pursuant to this Section 2.09 on or prior to their due
dates, if any such failure shall continue for ten (10) days following notice
thereof from Lender, Borrower shall pay to Lender on each Payment Date for each
month or portion thereof that any such financial statements, reports or other
information remains undelivered, an 


 


51





















 


administrative
fee in the amount of Two Thousand Five Hundred Dollars ($2,500) in the
aggregate for all failures occurring in any applicable month.  Borrower agrees that such administrative fee
(i) is a fair and reasonable fee necessary to compensate Lender for its
additional administrative costs and increased costs relating to Borrower’s
failure to deliver the aforementioned statements, reports or other items as and
when required hereunder and (ii) is not a penalty.


 


Section 2.10. 
Litigation.  Borrower will
give prompt written notice to Lender of any litigation or governmental
proceedings pending or threatened (in writing) against Borrower which are
reasonably likely to have a Material Adverse Effect.


 


Section 2.11. 
Updates of Representations. 
Borrower shall deliver to Lender within ten (10) days of the request of
Lender an Officer’s Certificate updating all of the representations and
warranties contained in this Security Instrument and the other Loan Documents
and certifying that all of the representations and warranties contained in this
Security Instrument and the other Loan Documents, as updated pursuant to such
Officer’s Certificate, are true, accurate and complete as of the date of such
Officer’s Certificate.  Notwithstanding
the foregoing, provided that no Event of Default has occurred and is
continuing, Borrower shall not be required to deliver the foregoing Officer’s
Certificate more than three (3) times during the term of the Loan.


 


Section 2.12. 
Major Contracts.  Borrower
shall not enter into any new Major Contracts or amend any existing Major
Contracts without, in each instance, first obtaining Lender’s prior consent, which
consent shall not be unreasonably withheld. 
Notwithstanding the foregoing, Lender hereby approves Jeffrey Chodorow
or any entity Controlled by Jeffrey Chodorow as a restaurant and bar operator
for the bars and restaurants situated at the Premises, but reserves the right
to approve any economic terms of any new Major Contracts with Jeffrey Chodorow
or any entity Controlled by Jeffrey Chodorow unless such new Major Contracts
are on terms which are substantially the same or more favorable to the Property
than the terms of the applicable Major Contracts in effect prior to the
amendment or renewal thereof, in which case such new Major Contracts shall be
deemed approved by Lender.


 


ARTICLE III:  INSURANCE
AND CASUALTY RESTORATION


 


Section 3.01. 
Insurance Coverage. 
Borrower shall, at its expense, maintain the following insurance
coverages with respect to the Property during the term of this Security
Instrument:


 


(a)           (i) Insurance against loss or damage by fire,
casualty and other hazards included in an “all-risk” coverage endorsement or
its equivalent, with such endorsements as Lender may from time to time
reasonably require and which are customarily required by Institutional Lenders
of similar properties similarly situated, including, without limitation, if the
Property constitutes a legal non-conforming use, an ordinance of law coverage
endorsement which contains “Demolition Cost”, “Loss Due to Operation of Law”
and “Increased Cost of Construction” coverages, covering the Property in an
amount not less than the greater of (A) 100% of the insurable replacement value
of the Property (exclusive of the Premises and footings and foundations) and
(B) such other amount as is necessary to prevent any reduction in such policy
by reason of and to prevent Borrower, Lender or any other insured thereunder
from being 


 


52





















 


deemed
to be a co-insurer.  Not less frequently
than once every three (3) years, Borrower, at its option, shall either (A) have
the Appraisal updated or obtain a new appraisal of the Property, (B) have a
valuation of the Property made by or for its insurance carrier conducted by an
appraiser experienced in valuing properties of similar type to that of the
Property which are in the geographical area in which the Property is located or
(C) provide such other evidence as will, in Lender’s sole judgment, enable
Lender to determine whether there shall have been an increase in the insurable
value of the Property and Borrower shall deliver such updated Appraisal, new
appraisal, insurance valuation or other evidence acceptable to Lender, as the
case may be, and, if such updated Appraisal, new appraisal, insurance
valuation, or other evidence acceptable to Lender reflects an increase in the
insurable value of the Property, the amount of insurance required hereunder
shall be increased accordingly and Borrower shall deliver evidence satisfactory
to Lender that such policy has been so increased.


 


(ii)           Commercial general liability insurance
against claims for personal and bodily injury and/or death to one or more
persons or property damage, occurring on, in or about the Property (including the
adjoining streets, sidewalks and passageways therein) in such amounts as Lender
may from time to time reasonably require (but in no event shall Lender’s
requirements be increased more frequently than once during each twelve (12)
month period) and which are customarily required by Institutional Lenders for
similar properties similarly situated, but not less than $1,000,000 per
occurrence and $2,000,000 general aggregate on a per location basis and, in
addition thereto, not less than $75,000,000 excess and/or umbrella liability
insurance shall be maintained for any and all claims.


 


(iii)          Business interruption, rent loss or other
similar insurance with an unlimited indemnity period (A) with loss payable to
Lender, (B) covering all risks required to be covered by the insurance provided
for in Section 3.01(a)(i) hereof and (C) in an amount not less than 100% of the
projected total revenues derived from the Property for the succeeding
twenty-four (24) month period based on an occupancy rate taking into account historical
and projected occupancy.  The amount of
such insurance shall be determined upon the execution of this Security
Instrument, and not more frequently than once each calendar year thereafter
based on Borrower’s reasonable estimate of projected fixed or base rent plus
percentage rent, from the Property for the next succeeding twenty-four (24)
months.  In the event the Property shall
be damaged or destroyed, Borrower shall and hereby does assign to Lender all
payment of claims under the policies of such insurance, and all amounts payable
thereunder, and all net amounts, shall be collected by Lender under such
policies and shall be applied in accordance with this Security Instrument;
provided, however, that nothing herein contained shall be deemed to relieve
Borrower of its obligations to timely pay all amounts due under the Loan
Documents.


 


(iv)          War risk insurance when such insurance is
obtainable from the United States of America or any agency or instrumentality
thereof at reasonable rates (for the maximum amount of insurance obtainable)
and if requested by Lender, and such insurance is then customarily required by
Institutional Lenders of similar properties similarly situated.  As of the Closing Date, no insurance of the
type set forth in this Section 3.01(a)(iv) is required.


 


(v)           Insurance against loss or damages from
(A) leakage of sprinkler systems and (B) explosion of steam boilers, air
conditioning equipment, pressure vessels or similar apparatus now 


 


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or hereafter installed at
the Property, in such amounts as Lender may from time to time reasonably
require and which are then customarily required by Institutional Lenders of
similar properties similarly situated.


 


(vi)          Flood insurance in an amount equal to the
full insurable value of the Property or the maximum amount available, whichever
is less, if the Improvements are located in an area designated by the Secretary
of Housing and Urban Development as being “an area of special flood hazard”
under the National Flood Insurance Program (i.e., having a one percent
or greater chance of flooding), and if flood insurance is available under the
National Flood Insurance Act.


 


(vii)         Worker’s compensation insurance or other
similar insurance which may be required by Governmental Authorities or Legal
Requirements.


 


(viii)        Intentionally omitted.


 


(ix)           Insurance against damage resulting from
acts of terrorism, or an insurance policy without an exclusion for damages
resulting from terrorism, on terms consistent with the commercial property
insurance policy required under subsections (i), (ii) and (iii) above;
provided, however, Borrower shall not be required to carry more than the amount
of insurance required pursuant to this Section 3.01(a)(ix) as is available for
an annual premium of 150% of the total annual premium of all insurance required
pursuant to this Section 3.01(a) during the last policy year that such
terrorism insurance was included within the “all risk” property insurance
policy obtained pursuant to Section 3.01(a)(i).


 


(x)            Such other insurance as may from time to
time be required by Lender and which is then customarily required by
Institutional Lenders for similar properties similarly situated, against other
insurable hazards, including, but not limited to, malicious mischief,
vandalism, loss resulting from mold, spores or fungus on or about the Premises
(which Lender acknowledges, as of the Closing Date is not required hereunder), sinkhole
and mine subsidence, acts of terrorism, windstorm and/or earthquake, due regard
to be given to the size and type of the Premises, Improvements, Fixtures and
Equipment and their location, construction and use.  Additionally, Borrower shall carry such
insurance coverage as Lender may from time to time require if the failure to
carry such insurance may result in a downgrade, qualification or withdrawal of
any class of securities issued in connection with a Securitization or, if the
Loan is not yet part of a Securitization, would result in an increase in the
subordination levels of any class of securities anticipated to be issued in
connection with a proposed Securitization.


 


(xi)           If Borrower, any of its Affiliates or
Manager holds a liquor license for the Premises, liquor liability insurance in
the amount of no less than $10,000,000.


 


(xii)          Automobile liability insurance covering
owned, hired and not owned vehicles in an amount of not less than $1,000,000
per accident.


 


(b)           Borrower shall cause any Manager of the
Property to maintain fidelity insurance in an amount equal to or greater than
the annual Operating Income of the Property for the six (6) 


 


54





















 


month
period immediately preceding the date on which the premium for such insurance
is due and payable or such lesser amount as Lender shall approve.


 


Section 3.02. 
Policy Terms. 
(a) All insurance required by this Article III shall be in the
form (other than with respect to Sections 3.01(a)(vi) and (vii) above when
insurance in those two sub-sections is placed with a governmental agency or
instrumentality on such agency’s forms) and amount and with deductibles as,
from time to time, shall be reasonably acceptable to Lender, under valid and
enforceable policies issued by financially responsible insurers authorized to
do business in the State where the Property is located, with a general
policyholder’s service rating of not less than A and a financial rating of not
less than XIII as rated in the most currently available Best’s Insurance
Reports (or the equivalent, if such rating system shall hereafter be altered or
replaced) and shall have a claims paying ability rating and/or financial
strength rating, as applicable, of not less than “A” (or its equivalent), or
such lower claims paying ability rating and/or financial strength rating, as
applicable, as Lender shall, in its reasonable discretion (taking into account
then current Rating Agency guidelines), consent to, from a Rating Agency (one
of which after a Securitization in which Standard & Poor’s rates any
securities issued in connection with such Securitization, shall be Standard
& Poor’s) or by a syndicate of insurers through which at least 90% of the
coverage is with carriers having claims-paying ability or financial strength
ratings of “A” (or its equivalent) from the Ratings Agencies, provided that all
members of the syndicate shall have claims-paying ability ratings and/or
financial strength ratings, as applicable, of not less than “A-” (or its
equivalent) from the Ratings Agencies.  Notwithstanding
the foregoing, Lender approves (i) Continental Casualty Company, (ii) RSUI
Indemnity Company, and (iii) Fidelity National Insurance Company as insurers,
provided that throughout the term of the Loan the claims paying ability rating
and/or financial strength rating, as applicable, from each Rating Agency for
such insurers shall be no less than “A-” (or its equivalent).  Originals or certified copies of all
insurance policies shall be delivered to and held by Lender.  All such policies (except policies for worker’s
compensation) shall name Lender, its successors and/or assigns as an additional
named insured, with respect to the insurance required pursuant to Section
3.01(a)(iii) above, shall provide for loss payable to Lender, its successors
and/or assigns and shall contain (or have attached):  (i) standard “non-contributory mortgagee”
endorsement or its equivalent relating, inter  alia, to recovery
by Lender notwithstanding the negligent or willful acts or omissions of
Borrower; (ii) a waiver of subrogation endorsement as to Lender; (iii) an
endorsement indicating that neither Lender nor Borrower shall be or be deemed
to be a co-insurer with respect to any casualty risk insured by such policies
and shall provide for a deductible per loss of an amount not more than the
lesser of (x) that which is customarily maintained by owners of similar
properties similarly situated and (y) $100,000 or, with respect to the
deductible under any insurance against losses resulting from windstorms, 3.5%
of the values at risk or, with respect to the deductible under any insurance
against losses resulting from earthquake, 5% of the values at risk, and (iv) a
provision that such policies shall not be canceled, terminated, denied renewal
or amended, including, without limitation, any amendment reducing the scope or
limits of coverage, without at least thirty (30) days’ prior written notice to
Lender in each instance.  Not less than
thirty (30) days prior to the expiration dates of the insurance policies
obtained pursuant to this Security Instrument, originals or certified copies of
renewals of such policies (or certificates evidencing such renewals) bearing
notations evidencing the payment of premiums or accompanied by other reasonable
evidence of such payment (which 


 


55





















 


premiums
shall not be paid by Borrower through or by any financing arrangement which
would entitle an insurer to terminate a policy; provided, however, premiums for
the insurance required pursuant to Section 3.01(a)(i) may be paid quarterly in
advance or as otherwise reasonably acceptable to Lender, it being acknowledged
that paying the premium for such policies by financing the same, paying twenty
percent (20%) of the total annual premium (inclusive of finance charges) at the
time of the applicable policy renewal and paying the remaining eighty percent
(80%) of the total annual premium (inclusive of finance charges) in nine (9)
equal monthly installments is acceptable to Lender) shall be delivered by
Borrower to Lender.  Borrower shall not
carry separate insurance, concurrent in kind or form or contributing in the
event of loss, with any insurance required under this Article III.


 


(b)           If Borrower fails to maintain and deliver to
Lender the original policies or certificates of insurance required by this Security
Instrument, or if there are insufficient funds in the Basic Carrying Costs Escrow
Account to pay the premiums for same, Lender may, at its option, procure such
insurance, and Borrower shall pay, or as the case may be, reimburse Lender for,
all premiums thereon promptly, upon demand by Lender, with interest thereon at
the Default Rate from the date paid by Lender to the date of repayment and such
sum shall constitute a part of the Debt.


 


(c)           Borrower shall notify Lender of the renewal
premium of each insurance policy and Lender shall be entitled to pay such
amount on behalf of Borrower from the Basic Carrying Costs Escrow Account in
accordance with the financing schedule of the payments for such premiums, if
any, or, if an Event of Default has occurred and is continuing, in full or such
other manner as Lender may elect.  With
respect to insurance policies which require periodic payments (i.e., monthly or
quarterly) of premiums, Lender shall be entitled to pay such amounts ten (10)
days (or such lesser number of days as Lender shall determine) prior to the
respective due dates of such installments.


 


(d)           The insurance required by this Security
Instrument may, at the option of Borrower, be effected by blanket and/or
umbrella policies issued to Borrower covering the Property provided that, in
each case, the policies otherwise comply with the provisions of this Security
Instrument and allocate to the Property, from time to time (but in no event
less than once a year), the coverage specified by this Security Instrument,
without possibility of reduction or coinsurance by reason of damage to any
other property (real or personal) named therein.  If the insurance required by this Security
Instrument shall be effected by any such blanket or umbrella policies, Borrower
shall furnish to Lender (i) original policies or certified copies thereof, or
an original certificate of insurance together with reasonable access to the
original of such policy to review such policy’s coverage of the Property, with
schedules attached thereto showing the amount of the insurance provided under
such policies applicable to the Property and (ii) an Officer’s Certificate
setting forth (A) the number of properties covered by such policy, (B) the
location by city (if available, otherwise, county) and state of the properties,
(C) the average square footage of the properties, (D) a brief description of
the typical construction type included in the blanket policy and (E) such other
information as Lender may reasonably request.


 


Section 3.03. 
Assignment of Policies.  (a) Borrower hereby assigns to Lender
the proceeds of all insurance (other than worker’s compensation and liability
insurance) obtained 


 


56





















 


pursuant
to this Security Instrument, all of which proceeds shall be payable to Lender
as collateral and further security for the payment of the Debt and the
performance of the Cross-collateralized Borrowers’ obligations hereunder and
under the other Loan Documents, and Borrower hereby authorizes and directs the
issuer of any such insurance to make payment of such proceeds directly to
Lender.  Except as otherwise expressly
provided in Section 3.04 or elsewhere in this Article III, Lender shall have
the option, in its discretion, and without regard to the adequacy of its
security, to apply all or any part of the proceeds it may receive pursuant to
this Article in such manner as Lender may elect to any one or more of the
following:  (i) the payment of the Debt,
whether or not then due, in accordance with the provisions of the Note, (ii)
the repair or restoration of the Property, (iii) the cure of any Default or
(iv) the reimbursement of the costs and expenses of Lender incurred pursuant to
the terms hereof in connection with the recovery of the Insurance Proceeds.  Subject to Section 15.03(a), nothing herein
contained shall be deemed to excuse Borrower from repairing or maintaining the
Property as provided in this Security Instrument or restoring all damage or
destruction to the Property, regardless of the sufficiency of the Insurance
Proceeds, and the application or release by Lender of any Insurance Proceeds
shall not cure or waive any Default or notice of Default.


 


(b)           In the event of the foreclosure of this
Security Instrument or any other transfer of title or assignment of all or any
part of the Property in extinguishment, in whole or in part, of the Debt, all
right, title and interest of Borrower in and to all policies of insurance
required by this Security Instrument shall inure to the benefit of the successor
in interest to Borrower or the purchaser of the Property.  If, prior to the receipt by Lender of any
proceeds, the Property or any portion thereof shall have been sold on
foreclosure of this Security Instrument or by deed in lieu thereof or otherwise,
or any claim under such insurance policy arising during the term of this
Security Instrument is not paid until after the extinguishment of the Debt, and
Lender shall not have received the entire amount of the Debt outstanding at the
time of such extinguishment, whether or not a deficiency judgment on this
Security Instrument shall have been sought or recovered or denied, then, the
proceeds of any such insurance to the extent of the amount of the Debt not so
received, shall be paid to and be the property of Lender, together with
interest thereon at the Default Rate, and the reasonable attorney’s fees, costs
and disbursements incurred by Lender in connection with the collection of the
proceeds which shall be paid to Lender and Borrower hereby assigns, transfers
and sets over to Lender all of Borrower’s right, title and interest in and to
such proceeds.  Notwithstanding any
provisions of this Security Instrument to the contrary, Lender shall not be
deemed to be a trustee or other fiduciary with respect to its receipt of any
such proceeds, which may be commingled with any other monies of Lender;
provided, however, that Lender shall use such proceeds for the purposes and in
the manner permitted by this Security Instrument.  Any proceeds deposited with Lender shall be
held by Lender in an interest-bearing account, but Lender makes no
representation or warranty as to the rate or amount of interest, if any, which
may accrue on such deposit and shall have no liability in connection therewith.  Interest accrued, if any, on the proceeds
shall be deemed to constitute a part of the proceeds for purposes of this
Security Instrument.  The provisions of
this Section 3.03(b) shall survive the termination of this Security Instrument
by foreclosure, deed in lieu thereof or otherwise as a consequence of the
exercise of the rights and remedies of Lender hereunder after a Default.


 


57





















 


Section 3.04. 
Casualty Restoration.  (a) (i) In the event of any damage to
or destruction of the Property, Borrower shall give prompt written notice to
Lender (which notice shall set forth Borrower’s good faith estimate of the cost
of repairing or restoring such damage or destruction, or if Borrower cannot
reasonably estimate the anticipated cost of restoration, Borrower shall
nonetheless give Lender prompt notice of the occurrence of such damage or
destruction, and will diligently proceed to obtain estimates to enable Borrower
to quantify the anticipated cost and time required for such restoration, whereupon
Borrower shall promptly notify Lender of such good faith estimate) and,
provided that restoration does not violate any Legal Requirements, Borrower
shall promptly commence and diligently prosecute to completion the repair,
restoration or rebuilding of the Property so damaged or destroyed to a
condition such that the Property shall be at least equal in value to that
immediately prior to the damage to the extent practicable, in full compliance
with all Legal Requirements and the provisions of all Leases, and in accordance
with Section 3.04(b) below.  Such repair,
restoration or rebuilding of the Property, including, without limitation,
preparation of plans and specifications in connection therewith, are sometimes
hereinafter collectively referred to as the “Work”.


 


(ii)           Borrower shall not adjust, compromise or
settle any claim for Insurance Proceeds without the prior written consent of
Lender, which shall not be unreasonably withheld or delayed and Lender shall
have the right, at Borrower’s sole cost and expense, to participate in any
settlement or adjustment of Insurance Proceeds; provided, however, that, except
during the continuance of an Event of Default, Lender’s consent shall not be
required with respect to the adjustment, compromising or settlement of any
claim for Insurance Proceeds in an amount less than $250,000.


 


(iii)          Subject to Section 3.04(a)(iv), Lender
shall apply any Insurance Proceeds which it may receive towards the Work in
accordance with Section 3.04(b) and the other applicable sections of this
Article III.


 


(iv)          If (A) a Default shall have occurred, (B)
Lender is not reasonably satisfied that the Debt Service Coverage, after
substantial completion of the Work, will be at least equal to the Required Debt
Service Coverage, (C) more than thirty percent (30%) of the reasonably
estimated fair market value of the Property is damaged or destroyed, (D) any
Leases physically affected by such destruction shall not continue in full force
and effect, (E) Lender is not reasonably satisfied that the Work can be
completed six (6) months prior to Maturity or (F) Lender is not reasonably
satisfied that the Work can be completed within twelve (12) months of the
damage to or destruction of the Property (each, a “Substantial Casualty”),
Lender shall have the option, in its sole discretion to apply any Insurance
Proceeds it may receive pursuant to this Security Instrument (less any cost to
Lender of recovering and paying out such proceeds incurred pursuant to the
terms hereof and not otherwise reimbursed to Lender, including, without
limitation, reasonable attorneys’ fees and expenses) to the payment of the
Debt, without any prepayment fee or charge of any kind other than the Exit Fee,
or to allow such proceeds to be used for the Work pursuant to the terms and
subject to the conditions of Section 3.04(b) hereof and the other applicable
sections of this Article III.


 


(v)           In the event that Lender elects or is
obligated hereunder to allow Insurance Proceeds to be used for the Work, any
excess proceeds remaining after completion of such Work 


 


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shall be applied to the
payment of the Debt without any prepayment fee or charge of any kind other than
the Exit Fee.


 


(b)           If any Condemnation Proceeds in accordance
with Section 6.01(a), or any Insurance Proceeds in accordance with Section
3.04(a), are to be applied to the repair, restoration or rebuilding of the
Property, then such Condemnation Proceeds or Insurance Proceeds shall be
deposited into a segregated interest-bearing bank account at the Bank, which
shall be an Eligible Account, held by Lender and shall be paid out from time to
time to Borrower as the Work progresses (less any cost to Lender of recovering
and paying out such proceeds, including, without limitation, reasonable
attorneys’ fees and costs allocable to inspecting the Work and the plans and
specifications therefor) subject to Section 5.13 hereof and to all of the
following conditions:


 


(i)            An Independent architect or engineer
selected by Borrower and reasonably acceptable to Lender (an “Architect”
or “Engineer”) or a Person otherwise reasonably acceptable to Lender,
shall have delivered to Lender a certificate estimating the cost of completing
the Work, and, if the amount set forth therein is more than the sum of the
amount of Insurance Proceeds then being held by Lender in connection with a
casualty and amounts agreed to be paid as part of a final settlement under the
insurance policy upon or before completion of the Work, Borrower shall have
delivered to Lender (A) cash collateral in an amount equal to such excess, (B)
an unconditional, irrevocable, clean sight draft letter of credit, in form,
substance and issued by a bank reasonably acceptable to Lender, in the amount
of such excess and draws on such letter of credit shall be made by Lender to
make payments pursuant to this Article III following exhaustion of the
Insurance Proceeds or Condemnation Proceeds, as applicable, therefor or (C) a
completion bond in form, substance and issued by a surety company reasonably
acceptable to Lender.


 


(ii)           If the cost of the Work relating to any
Cross-collateralized Property is reasonably estimated by an Architect or
Engineer in a certification reasonably acceptable to Lender to be equal to or
exceed five percent (5%) of the Allocated Loan Amount of the applicable
Cross-collateralized Property, such Work shall be performed under the
supervision of an Architect or Engineer, it being understood that the plans and
specifications with respect thereto shall provide for Work so that, upon
completion thereof, the Property shall be at least equal in replacement value
and general utility to the Property prior to the damage or destruction.


 


(iii)          Each request for payment shall be made on
not less than ten (10) days’ prior notice to Lender and shall be accompanied by
a certificate of an Architect or Engineer, or, if the Work is not required to
be supervised by an Architect or Engineer, by an Officer’s Certificate stating
(A) that payment is for Work completed in compliance with the plans and
specifications, if required under clause (ii) above, (B) that the sum requested
is required to reimburse Borrower for payments by Borrower to date, or is due
to the contractors, subcontractors, materialmen, laborers, engineers,
architects or other Persons rendering services or materials for the Work
(giving a brief description of such services and materials), and that when
added to all sums previously paid out by Lender does not exceed the value of
the Work done to the date of such certificate, (C) if the sum requested is to
cover payment relating to repair and restoration of personal property required
or relating to the Property, that title to the personal property items 


 


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covered by the request for
payment is vested in Borrower (unless Borrower is lessee of such personal
property), and (D) that the Insurance Proceeds and other amounts deposited by
Borrower held by Lender after such payment is more than the estimated remaining
cost to complete such Work; provided, however, that if such certificate is
given by an Architect or Engineer, such Architect or Engineer shall certify as
to clause (A) above, and such Officer’s Certificate shall certify as to the
remaining clauses above, and provided, further, that Lender shall not be
obligated to disburse such funds if Lender determines, in Lender’s reasonable
discretion, that Borrower shall not be in compliance with this Section
3.04(b).  Additionally, each request for
payment shall contain a statement signed by Borrower stating that the requested
payment is for Work completed to date.


 


(iv)          Each request for payment shall be
accompanied by waivers of lien, in customary form and substance, covering that
part of the Work for which payment or reimbursement is being requested and, if
required by Lender, a search prepared by a title company or licensed
abstractor, or by other evidence reasonably satisfactory to Lender that there
has not been filed with respect to the Property any mechanic’s or other lien or
instrument for retention of title relating to any part of the Work not
discharged of record.  Additionally, as
to any personal property covered by the request for payment, Lender shall be
furnished with evidence of Borrower having incurred a payment obligation therefor
and such further evidence reasonably satisfactory to assure Lender that UCC
filings therefor provide a valid first lien on the personal property.


 


(v)           Lender shall have the right to inspect
the Work at all reasonable times upon reasonable prior notice and may condition
any disbursement of Insurance Proceeds upon satisfactory compliance by Borrower
with the provisions hereof.  Neither the
approval by Lender of any required plans and specifications for the Work nor
the inspection by Lender of the Work shall make Lender responsible for the
preparation of such plans and specifications, or the compliance of such plans
and specifications of the Work, with any applicable law, regulation, ordinance,
covenant or agreement.


 


(vi)          Insurance Proceeds shall not be disbursed
more frequently than once every thirty (30) days.


 


(vii)         Until such time as the Work has been
substantially completed, Lender shall not be obligated to disburse up to ten
percent (10%) of the cost of the Work (the “Retention Amount”) to
Borrower.  Upon substantial completion of
the Work, Borrower shall send notice thereof to Lender and, subject to the
conditions of Section 3.04(b)(i)-(iv), Lender shall disburse one-half of the
Retention Amount to Borrower; provided, however, that the remaining one-half of
the Retention Amount shall be disbursed to Borrower when Lender shall have
received copies of any and all certificates of occupancy or other certificates,
licenses and permits required for the ownership, occupancy and operation of the
Property in accordance with all Legal Requirements.  Borrower hereby covenants to diligently seek
to obtain any such certificates, licenses and permits.


 


(viii)        Upon failure on the part of Borrower
promptly after a casualty or Taking to commence the Work or to proceed
diligently and continuously to completion of the Work, which failure shall
continue after notice for thirty (30) days, Lender may apply any Insurance
Proceeds 


 


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or Condemnation Proceeds
it then or thereafter holds to the payment of the Debt in accordance with the
provisions of the Note; provided, however, that Lender shall be entitled to
apply at any time all or any portion of the Insurance Proceeds or Condemnation
Proceeds it then holds to the extent necessary to cure any Event of Default.


 


(c)           If Borrower (i) within one hundred twenty (120)
days after the occurrence of any damage to the Property or any portion thereof
(or such shorter period as may be required under any Major Space Lease) shall
fail to submit to Lender for approval plans and specifications for the Work
(approved by the Architect and by all Governmental Authorities whose approval
is required), (ii) after any such plans and specifications are approved by all
Governmental Authorities, the Architect and Lender, shall fail to promptly
commence such Work after a casualty or Taking or (iii) shall fail to diligently
prosecute such Work to completion, then, in addition to all other rights
available hereunder, at law or in equity, Lender, or any receiver of the
Property or any portion thereof, upon five (5) days’ prior notice to Borrower
(except in the event of emergency in which case no notice shall be required),
may (but shall have no obligation to) perform or cause to be performed such
Work, and may take such other steps as it reasonably deems advisable.  Borrower hereby waives, for Borrower, any
claim, other than for gross negligence or willful misconduct, against Lender
and any receiver arising out of any act or omission of Lender or such receiver
pursuant hereto, and Lender may apply all or any portion of the Insurance
Proceeds (without the need to fulfill any other requirements of this Section
3.04) to reimburse Lender and such receiver, for all costs not reimbursed to
Lender or such receiver upon demand together with interest thereon at the
Default Rate from the date such amounts are advanced until the same are paid to
Lender or the receiver.


 


(d)           Borrower hereby irrevocably appoints Lender
as its attorney-in-fact, coupled with an interest, to collect and receive any
Insurance Proceeds paid with respect to any portion of the Property or the
insurance policies required to be maintained hereunder, and to endorse any
checks, drafts or other instruments representing any Insurance Proceeds whether
payable by reason of loss thereunder or otherwise.


 


Section 3.05. 
Compliance with Insurance Requirements.  Borrower promptly shall comply with, and
shall cause the Property to comply with, all Insurance Requirements, even if
such compliance requires structural changes or improvements or would result in
interference with the use or enjoyment of the Property or any portion thereof
provided Borrower shall have a right to contest in good faith and with
diligence such Insurance Requirements provided (a) no Event of Default shall
exist during such contest and such contest shall not subject the Property or
any portion thereof to any lien or affect the priority of the lien of this
Security Instrument, (b) failure to comply with such Insurance Requirements
will not subject Lender, Trustee or any of their agents, employees, officers or
directors to any civil or criminal liability, (c) such contest will not cause
any reduction in insurance coverage, (d) such contest shall not affect the
ownership, use or occupancy of the Property, (e) the Property or any part
thereof or any interest therein shall not be in any danger of being sold,
forfeited or lost by reason of such contest by Borrower, (f) Borrower has given
Lender prompt notice of such contest and, upon request by Lender from time to
time, notice of the status of such contest by Borrower and/or information of
the continuing satisfaction of the conditions set forth in clauses (a) through
(e) of this Section 3.05, (g) upon a final determination of such contest,
Borrower shall promptly comply with the 


 


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requirements
thereof, and (h) prior to and during such contest, Borrower shall furnish to
Lender security satisfactory to Lender, in its reasonable discretion, against
loss or injury by reason of such contest or the non-compliance with such
Insurance Requirement (and if such security is cash, Lender shall deposit the
same in an interest-bearing account and interest accrued thereon, if any, shall
be deemed to constitute a part of such security for purposes of this Security
Instrument, but Lender (i) makes no representation or warranty as to the rate
or amount of interest, if any, which may accrue thereon and shall have no
liability in connection therewith and (ii) shall not be deemed to be a trustee
or fiduciary with respect to its receipt of any such security and any such
security may be commingled with other monies of Lender).  If Borrower shall use the Property or any
portion thereof in any manner which could permit the insurer to cancel any
insurance required to be provided hereunder, Borrower immediately shall obtain
a substitute policy which shall satisfy the requirements of this Security
Instrument and which shall be effective on or prior to the date on which any
such other insurance policy shall be canceled. 
Borrower shall not by any action or omission invalidate any insurance
policy required to be carried hereunder unless such policy is replaced as
aforesaid, or materially increase the premiums on any such policy above the
normal premium charged for such policy. 
Borrower shall cooperate with Lender in obtaining for Lender the
benefits of any Insurance Proceeds lawfully or equitably payable to Lender in
connection with the transaction contemplated hereby.


 


Section 3.06. 
Event of Default During Restoration.  Notwithstanding anything to the contrary
contained in this Security Instrument including, without limitation, the
provisions of this Article III, if, at the time of any casualty affecting the
Property or any part thereof, or at any time during any Work, or at any time
that Lender is holding or is entitled to receive any Insurance Proceeds
pursuant to this Security Instrument, a Default exists and is continuing
(whether or not it constitutes an Event of Default), Lender shall then have no
obligation to make such proceeds available for Work and Lender shall have the
right and option, to be exercised in its sole and absolute discretion and
election, with respect to the Insurance Proceeds, either to retain and apply
such proceeds in reimbursement for the actual costs, fees and expenses incurred
by Lender in accordance with the terms hereof in connection with the adjustment
of the loss and any balance toward payment of the Debt in such priority and
proportions as Lender, in its sole discretion, shall deem proper, or towards
the Work, upon such terms and conditions as Lender shall determine, or to cure an
Event of Default, or to any one or more of the foregoing as Lender, in its sole
and absolute discretion, may determine. 
If Lender shall receive and retain such Insurance Proceeds, the lien of
this Security Instrument shall be reduced only by the amount thereof received,
after reimbursement to Lender of expenses of collection, and actually applied
by Lender in reduction of the principal sum payable under the Note in
accordance with the Note.


 


Section 3.07. 
Application of Proceeds to Debt Reduction.  (a) No damage to the Property, or any
part thereof, by fire or other casualty whatsoever, whether such damage be
partial or total, shall relieve Borrower from its liability to pay in full the
Debt and to perform its obligations under this Security Instrument and the
other Loan Documents.


 


(b)           If any Insurance Proceeds are applied to
reduce the Debt, Lender shall apply the same in accordance with the provisions
of the Note.


 


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ARTICLE IV:  IMPOSITIONS


 


Section 4.01. 
Payment of Impositions, Utilities and Taxes, etc.  (a) Borrower shall
pay or cause to be paid all Impositions and remit or cause to be remitted all SAOT
Expenditures at least five (5) days prior to the date upon which any fine,
penalty, interest or cost for nonpayment is imposed, and furnish to Lender,
upon request, receipted bills of the appropriate taxing authority or other
documentation reasonably satisfactory to Lender evidencing the payment
thereof.  If Borrower shall fail to pay
any Imposition or remit any SAOT Expenditures in accordance with this Section
and is not contesting or causing a contesting of such Imposition in accordance
with Section 4.04 hereof, or if there are insufficient funds in the Basic
Carrying Costs Escrow Account to pay any Imposition, Lender shall have the
right, but shall not be obligated, to pay that Imposition or remit that SAOT
Expenditure, as applicable, and Borrower shall repay to Lender, on demand, any
amount paid by Lender, with interest thereon at the Default Rate from the date
of the advance thereof to the date of repayment, and such amount shall
constitute a portion of the Debt secured by this Security Instrument and the
other Cross-collateralized Mortgages.


 


(b)           Borrower shall, prior to the date upon which
any fine, penalty, interest or cost for the nonpayment is imposed, pay or cause
to be paid all charges for electricity, power, gas, water and other services
and utilities in connection with the Property, and shall, upon request, deliver
to Lender receipts or other documentation reasonably satisfactory to Lender
evidencing payment thereof.  If Borrower
shall fail to pay any amount required to be paid by Borrower pursuant to this
Section 4.01 and is not contesting such charges in accordance with Section 4.04
hereof, Lender shall have the right, but shall not be obligated, to pay that
amount, and Borrower will repay to Lender, on demand, any amount paid by Lender
with interest thereon at the Default Rate from the date of the advance thereof
to the date of repayment, and such amount shall constitute a portion of the
Debt secured by this Security Instrument and the other Cross-collateralized Mortgages.


 


(c)           Borrower shall pay all taxes, charges,
filing, registration and recording fees, excises and levies imposed upon Lender
by reason of or in connection with its ownership of any Loan Document or any
other instrument related thereto, or resulting from the execution, delivery and
recording of, or the lien created by, or the obligation evidenced by, any of
them, other than income, franchise and other similar taxes imposed on Lender
and shall pay all corporate stamp taxes, if any, and other taxes, required to
be paid on the Loan Documents other than taxes imposed on Lender’s income and
franchise taxes imposed on Lender by the law or regulations of any Governmental
Authority.  If Borrower shall fail to
make any such payment within ten (10) days after written notice thereof from
Lender, Lender shall have the right, but shall not be obligated, to pay the
amount due, and Borrower shall reimburse Lender therefor, on demand, with
interest thereon at the Default Rate from the date of the advance thereof to the
date of repayment, and such amount shall constitute a portion of the Debt
secured by this Security Instrument and the other Cross-collateralized
Mortgages.


 


Section 4.02. 
Deduction from Value.  In
the event of the passage after the date of this Security Instrument of any
Legal Requirement deducting from the value of the Property for the purpose of
taxation, any lien thereon or changing in any way the Legal Requirements now in
force for the taxation of this Security Instrument, the other Cross-collateralized
Mortgages and/or 


 


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the
Debt for federal, state or local purposes, or the manner of the operation of
any such taxes so as to adversely affect the interest of Lender, or imposing
any tax or other charge on any Loan Document, then Borrower will pay such tax,
with interest and penalties thereon, if any, within the statutory period.  In the event the payment of such tax or
interest and penalties by Borrower would be unlawful, or taxable to Lender or
unenforceable or provide the basis for a defense of usury, then in any such
event, Lender shall have the option, by written notice of not less than thirty
(30) days, to declare the Debt immediately due and payable, with no prepayment
fee or charge of any kind.


 


Section 4.03. 
No Joint Assessment. 
Borrower shall not consent to or initiate the joint assessment of the
Premises or the Improvements (a) with any other real property constituting a
separate tax lot and Borrower represents and covenants that the Premises and
the Improvements are and shall remain a separate tax lot or (b) with any
portion of the Property which may be deemed to constitute personal property, or
any other procedure whereby the lien of any taxes which may be levied against
such personal property shall be assessed or levied or charged to the Property
as a single lien.


 


Section 4.04. 
Right to Contest.  Borrower
shall have the right, after prior notice to Lender, at its sole expense, to
contest by appropriate legal proceedings diligently conducted in good faith,
without cost or expense to Lender or any of its agents, employees, officers or
directors, the validity, amount or application of any Imposition or any charge
described in Section 4.01(b), provided that (a) no Event of Default shall exist
during such proceedings and such contest shall not (unless Borrower shall
comply with clause (d) of this Section 4.04) subject the Property or any
portion thereof to any lien or affect the priority of the lien of this Security
Instrument, (b) failure to pay such Imposition or charge will not subject
Lender, Trustee or any of their agents, employees, officers or directors to any
civil or criminal liability, (c) the contest suspends enforcement of the
Imposition or charge (unless Borrower first pays the Imposition or charge), (d)
prior to and during such contest, Borrower shall furnish to Lender security
satisfactory to Lender, in its reasonable discretion, against loss or injury by
reason of such contest or the non-payment of such Imposition or charge (and if such
security is cash, Lender may deposit the same in an interest-bearing account
and interest accrued thereon, if any, shall be deemed to constitute a part of
such security for purposes of this Security Instrument, but Lender (i) makes no
representation or warranty as to the rate or amount of interest, if any, which
may accrue thereon and shall have no liability in connection therewith other
than with respect to Lender’s gross negligence or willful misconduct and (ii)
shall not be deemed to be a trustee or fiduciary with respect to its receipt of
any such security and any such security may be commingled with other monies of
Lender), (e) such contest shall not affect the ownership, use or occupancy of
the Property, (f) the Property or any part thereof or any interest therein
shall not be in any danger of being sold, forfeited or lost by reason of such
contest by Borrower, (g) Borrower has given Lender notice of the commencement
of such contest and upon request by Lender, from time to time, notice of the
status of such contest by Borrower and/or confirmation of the continuing
satisfaction of clauses (a) through (f) of this Section 4.04, and (h) upon a
final determination of such contest, Borrower shall promptly comply with the
requirements thereof.  Upon completion of
any contest, Borrower shall immediately pay the amount due, if any, and deliver
to Lender proof of the completion of the contest and payment of the amount due,
if any, following which Lender shall return the security, if any, deposited
with Lender pursuant to 


 


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clause
(d) of this Section 4.04.  Borrower shall
not pay any Imposition in installments unless permitted by applicable Legal
Requirements or the applicable Governmental Authority, and shall, upon the
request of Lender, deliver copies of all notices and bills relating to any
Imposition or other charge covered by this Article IV to Lender.


 


Section 4.05. 
No Credits on Account of the Debt.  Borrower will not claim or demand or be
entitled to any credit or credits on account of the Debt for any part of the
Impositions assessed against the Property or any part thereof and no deduction
shall otherwise be made or claimed from the taxable value of the Property, or
any part thereof, by reason of this Security Instrument or the Debt.  In the event such claim, credit or deduction
shall be required by Legal Requirements, Lender shall have the option, by
written notice of not less than thirty (30) days, to declare the Debt
immediately due and payable, and Borrower hereby agrees to pay such amounts not
later than thirty (30) days after such notice.


 


Section 4.06. 
Documentary Stamps.  If, at
any time, the United States of America, any State or Commonwealth thereof or
any subdivision of any such State shall require revenue or other stamps to be
affixed to the Note, this Security Instrument or any other Loan Document, or
impose any other tax or charges on the same, Borrower will pay the same, with
interest and penalties thereon, if any.


 


ARTICLE V:  CENTRAL
CASH MANAGEMENT


 


Section 5.01. 
Cash Flow.  Borrower hereby
acknowledges and agrees that (a) the Rents (which for the purposes of this
Section 5.01 shall not include security deposits from tenants under Leases held
by Borrower and not applied towards Rent) derived from the Property, (b) Loss
Proceeds and (c) all proceeds of the Rate Cap Agreement shall be utilized (a)
to fund the Basic Carrying Costs Sub-Account, (b) to pay all amounts to become
due and payable under the Note by funding the Debt Service Payment Sub-Account,
(c) to fund the Recurring Replacement Reserve Sub-Account, (d) to fund the SAOT
Sub-Account, (e) to fund the Mez Payment Sub-Account, (f) to fund the Operation
and Maintenance Expense Sub-Account to the extent required and (g) to fund the
Curtailment Reserve Sub-Account. 
Borrower shall cause Manager to collect all security deposits from
tenants under valid Leases, which shall be held by Manager, as agent for
Borrower, in accordance with applicable law and in a segregated demand deposit
bank account at such commercial or savings bank or banks as may be reasonably
satisfactory to Lender (the “Security Deposit Account”).  Borrower shall notify Lender of any security
deposits held as letters of credit and, upon Lender’s request, such letters of
credit shall be promptly delivered to Lender. 
Borrower shall have no right to withdraw funds from the Security Deposit
Account; provided that, prior to the occurrence of an Event of Default,
Borrower may withdraw funds from the Security Deposit Account to refund or
apply security deposits as required by the Leases or by applicable Legal
Requirements.  After the occurrence of an
Event of Default, all withdrawals from the Security Deposit Account must be
approved by Lender.  All rental payments
made by tenants and other payments constituting Rent, other than direct
payments by credit cards which shall be paid directly into the Rent Account,
shall be delivered to Manager.  Manager
shall collect all of such Rent and shall deposit such funds, within one (1)
Business Day after receipt thereof in the Rent Account, the name and address of
the bank in which such account is located and the account number of which to be
identified in writing by Manager to 


 


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Lender.  Borrower shall cause Manager to give to the
bank in which the Rent Account is located an irrevocable written instruction,
in form and substance reasonably acceptable to Lender, that all funds deposited
in such account shall be automatically transferred through automated clearing
house funds (“ACH”) or by Federal wire to the Central Account prior to
5:00 p.m. (New York City time) on a daily basis.  On the Closing Date, Borrower shall deliver
to Lender a copy of the irrevocable notice which Borrower delivered to the bank
in which the Rent Account is located pursuant to the provisions of this Section
5.01, the receipt of which is acknowledged in writing by such bank.  Additionally, Borrower shall, or shall cause
Manager to send to each respective credit card company or credit card clearing
bank with which Borrower or Manager has entered into merchant’s agreements
(each, a “Credit Card Company”) a direction letter in the form of Exhibit G annexed hereto and made a part
hereof (the “Credit Card Payment Direction Letter”) directing such
Credit Card Company to make all payments due in connection with goods or
services furnished at or in connection with the Property by Federal wire or
through ACH directly to the Rent Account. 
Without the prior written consent of Lender, neither Borrower nor
Manager shall (i) terminate, amend, revoke or modify any Credit Card Payment
Direction Letter in any manner or (ii) direct or cause any Credit Card Company
to pay any amount in any manner other than as specifically provided in the related
Credit Card Payment Direction Letter. 
Lender may elect to change the financial institution in which the
Central Account shall be maintained; however, Lender shall give Borrower
and the bank in which the Rent Account is located not fewer than five (5) Business
Days’ prior notice of such change. 
Neither Borrower nor Manager shall change such bank or the Rent Account
without the prior written consent of Lender. 
All fees and charges of the bank(s) in which the Rent Account and the
Central Account are located shall be paid by Borrower.


 


Section 5.02. 
Establishment of Accounts.  Lender has established the Escrow Accounts and
the Central Account in the name of Lender as secured party and Borrower has
established the Rent Account in the joint names of Lender, as secured party,
and Borrower.  The Rent Account, the
Central Account and the Escrow Accounts shall be under the sole dominion and
control of Lender and funds held therein shall not constitute trust funds.  Borrower hereby irrevocably directs and
authorizes Lender to withdraw funds from the Rent Account, the Central Account
and the Escrow Accounts, all in accordance with the terms and conditions of
this Security Instrument.  Borrower shall
have no right of withdrawal in respect of the Rent Account, the Central Account
or the Escrow Accounts.  Each transfer of
funds to be made hereunder shall be made only to the extent that funds are on
deposit in the Rent Account or the Central Account or the affected Sub-Account
or Escrow Account, and Lender shall have no responsibility to make additional
funds available in the event that funds on deposit are insufficient.  The Central Account shall contain the Basic
Carrying Costs Sub-Account, the Debt Service Payment Sub-Account, the Recurring
Replacement Reserve Sub-Account, the SAOT Sub-Account, the Mez Payment
Sub-Account, the Capex Trap Sub-Account, the Operation and Maintenance Expense
Sub-Account and the Curtailment Reserve Sub-Account, each of which accounts
shall be Eligible Accounts or book-entry sub-accounts of an Eligible Account (each
a “Sub-Account” and collectively, the “Sub-Accounts”) to which
certain funds shall be allocated and from which disbursements shall be made
pursuant to the terms of this Security Instrument.  Sums held in the Escrow Accounts may be
commingled with other monies held by Lender.


 


Section 5.03. 
Intentionally Omitted.


 


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Section 5.04. 
Servicing Fees.  At the
option of Lender, the Loan may be serviced by a servicer (the “Servicer”)
selected by Lender and Lender may delegate all or any portion of its
responsibilities under this Security Instrument to the Servicer.  Provided that no Default has occurred and is
continuing, Borrower shall have no obligation to reimburse Lender for servicing
fees incurred in connection with the ordinary, routine servicing of the Loan;
provided, however, that Borrower shall reimburse Lender for (a) any and all out
of pocket costs and expenses incurred after the occurrence of a Default (but
not including special servicing fees unless Lender forecloses on the lien of
this Security Instrument or exercises any power of sale granted hereunder) and (b)
as otherwise provided for in this Security Instrument.


 


Section 5.05. 
Monthly Funding of Sub-Accounts and Escrow Accounts.  (a) On or before each Payment Date during the
term of the Loan, commencing on the first (1st) Payment Date occurring after
the month in which the Loan is initially funded, Borrower shall pay or cause to
be paid to the Central Account the Basic Carrying Costs Monthly Installment,
the Required Debt Service Payment, the SAOT Deposit, the Recurring Replacement
Reserve Monthly Installment, the Mez Payment Amount and all sums required to be
deposited in the Operation and Maintenance Expense Sub-Account and the
Curtailment Reserve Sub-Account pursuant to clauses (i) through (x) of this
Section 5.05(a) and all funds transferred or deposited into the Central Account
shall be allocated among the Sub-Accounts as follows and in the following
priority:


 


(i)            first, to the SAOT Sub-Account until an
amount equal to the SAOT Deposit for the Payment Date occurring for such Interest
Accrual Period has been allocated to the SAOT Sub-Account;


 


(ii)           second, to the Basic Carrying Costs
Sub-Account, until an amount equal to the Basic Carrying Costs Monthly
Installment for such Interest Accrual Period has been allocated to the Basic
Carrying Costs Sub-Account;


 


(iii)          third, to the Debt Service Payment
Sub-Account, until an amount equal to the Required Debt Service Payment for the
Payment Date occurring for such Interest Accrual Period has been allocated to
the Debt Service Payment Sub-Account, it being acknowledged that any sums
deposited into the Central Account for such Interest Accrual Period by the
Cross-collateralized Borrowers which are allocated to the Debt Service Payment
Sub-Account for such Interest Accrual Period shall be credited towards sums
required to be deposited therein by Borrower;


 


(iv)          fourth, to the Operation and Maintenance
Expense Sub-Account in an amount equal to the Cash Expenses, other than
management fees in excess of four percent (4%) of total revenues of the
Property, for such Interest Accrual Period pursuant to the related Approved
Annual Budget;


 


(v)           fifth, to the Operation and Maintenance
Expense Sub-Account in an amount equal to the amount, if any, of the Net
Capital Expenditures for such Interest Accrual Period pursuant to the related
Approved Annual Budget;


 


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(vi)          sixth, to the Operation and Maintenance
Expense Sub-Account until an amount equal to the amount, if any, of the
Extraordinary Expenses approved by Lender for such Interest Accrual Period;


 


(vii)         seventh, to the Recurring Replacement
Reserve Sub-Account, until an amount equal to the Recurring Replacement Reserve
Monthly Installment for such Interest Accrual Period has been allocated to the
Recurring Replacement Reserve Sub-Account;


 


(viii)        eighth, but only if a Default is not then
continuing, to the Mez Payment Sub-Account until an amount equal to the Mez
Payment Amount has been allocated to the Mez Payment Sub-Account;


 


(ix)           ninth, but only during an Capex Cash Trap
Period, the balance, if any, to the Capex Trap Sub-Account; and


 


(x)            tenth, but only during an O&M
Operative Period, the balance, if any, to the Curtailment Reserve Sub-Account.


 


Provided that no Event of Default has occurred and
is continuing, Lender agrees that in each Interest Accrual Period any amounts
deposited into or remaining in the Central Account after the Sub-Accounts have
been funded in accordance with clauses (i) through (x) above with respect to such
Interest Accrual Period and any periods prior thereto, shall be disbursed by
Lender to Borrower or, if the Mez Loan is outstanding, to the holder of the Mez
Loan which is most senior in payment priority, on the Payment Date applicable
to such Interest Accrual Period.  The
balance of the funds distributed to Borrower after payment of all Operating
Expenses by or on behalf of Borrower may be retained by Borrower.  After the occurrence, and during the
continuance, of an Event of Default, no such excess funds held in the Central
Account shall be distributed to, or withdrawn by, Borrower, and Lender shall
have the right to apply all or any portion of the funds held in the Central
Account or any Sub-Account or any Escrow Account (excluding the SAOT
Sub-Account) to the Debt in Lender’s sole discretion.


 


(b)           On each Payment Date, or with respect to sums
in the Operation and Maintenance Sub-Account and SAOT Sub-Account, on Wednesday
of each week unless such day is not a Business Day, in which case on the first
Business Day thereafter, (i) sums held in the Basic Carrying Costs Sub-Account
shall be transferred to the Basic Carrying Costs Escrow Account, (ii) sums held
in the Debt Service Payment Sub-Account, together with any amounts deposited
into the Central Account that are either (x) Loss Proceeds that Lender has
elected to apply to reduce the Debt in accordance with the terms of Article III
hereof or (y) excess Loss Proceeds remaining after the completion of any
restoration required hereunder, shall be transferred to Lender to be applied
towards the Required Debt Service Payment, (iii) sums held in the SAOT
Sub-Account shall be transferred to the SAOT Escrow Account, (iv) sums held in
the Recurring Replacement Reserve Sub-Account shall be transferred to the
Recurring Replacement Escrow Account, (v) sums, if any, held in the Mez Payment
Sub-Account shall be transferred to the Mez Payment Escrow Account, (vi) sums
held in the Operation and Maintenance Expense Sub-Account shall be transferred
to the Operation and Maintenance Expense Escrow Account and 


 


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(vii)
sums held in the Curtailment Reserve Sub-Account shall be transferred to the Curtailment
Reserve Escrow Account.


 


Section 5.06. 
Payment of Basic Carrying Costs. 
Borrower hereby agrees to pay all Basic Carrying Costs (without regard
to the amount of money in the Basic Carrying Costs Sub-Account or the Basic
Carrying Costs Escrow Account).  At least
ten (10) Business Days prior to the due date of any Basic Carrying Costs, and
not more frequently than once each month, Borrower may notify Lender in writing
and request that Lender pay such Basic Carrying Costs on behalf of Borrower on or
prior to the due date thereof, and, provided that no Event of Default has
occurred and that there are sufficient funds available in the Basic Carrying
Costs Escrow Account, Lender shall make such payments out of the Basic Carrying
Costs Escrow Account before same shall be delinquent.  Together with each such request, Borrower
shall furnish Lender with bills and all other documents necessary, as
reasonably determined by Lender, for the payment of the Basic Carrying Costs
which are the subject of such request. Borrower’s obligation to pay (or cause
Lender to pay) Basic Carrying Costs pursuant to this Security Instrument shall
include, to the extent permitted by applicable law, Impositions resulting from
future changes in law which impose upon Lender an obligation to pay any
property taxes or other Impositions or which otherwise adversely affect Lender’s
interests.  Notwithstanding the
foregoing, in the event that Lender receives a tax bill directly from a
Governmental Authority relating to any Impositions, Lender shall pay all sums
due thereunder prior to the date such Impositions would accrue late charges or
interest thereon or within ten (10) Business Days of the receipt of such tax
bill, whichever is later.  In making any
payment of Impositions, Lender may rely on any bill, statement or estimate
obtained from the applicable Governmental Authority without inquiry into the
accuracy of such bill, statement or estimate or into the validity of any
Imposition or claim with respect thereto.


 


Provided that no Event of Default shall have
occurred, all funds deposited into the Basic Carrying Costs Escrow Account
shall be held by Lender pursuant to the provisions of this Security Instrument
and shall be applied in payment of Basic Carrying Costs in accordance with the terms
hereof.  Should an Event of Default
occur, the sums on deposit in the Basic Carrying Costs Sub-Account and the Basic
Carrying Costs Escrow Account may be applied by Lender in payment of any Basic
Carrying Costs or may be applied to the payment of the Debt or any other
charges affecting all or any portion of the Cross-collateralized Properties as
Lender in its sole discretion may determine; provided, however,
that no such application shall be deemed to have been made by operation of law
or otherwise until actually made by Lender as herein provided.


 


Section 5.07. 
SAOT Escrow Account. 
Borrower agrees to pay all SAOT Expenditures (without regard to the
amount of money then available in the SAOT Sub-Account or the SAOT Escrow
Account).  Lender will, at Lender’s
option, either, (a) apply funds in the SAOT Escrow Account to payments of
SAOT Expenditures required to be made by Borrower to the appropriate
Governmental Authorities, provided that Borrower has promptly supplied Lender
with notices of all SAOT Expenditures due or has certified to Lender that such
funds are required to make payments of SAOT Expenditures required to be made by
Borrower, (b) reimburse Borrower for such amounts upon presentation of
evidence of payment by Borrower of such SAOT Expenditures or (c) release to
Borrower funds in the SAOT Escrow Account for payment of SAOT Expenditures
required to be made by Borrower to the appropriate Governmental 


 


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Authorities,
provided that Borrower has promptly supplied Lender with notices of all SAOT
Expenditures due or has certified to Lender that such funds will be used to
make payments of SAOT Expenditures required to be made by Borrower.


 


Provided that no Event of Default shall have
occurred, all funds deposited into the SAOT Escrow Account shall be held by
Lender pursuant to the provisions of this Security Instrument and shall be
disbursed to Borrower for payment of SAOT Expenditures.  Should an Event of Default occur, the sums on
deposit in the SAOT Sub-Account and the SAOT Escrow Account may be applied by
Lender in payment of any SAOT Expenditures.


 


Section 5.08. 
Recurring Replacement Reserve Escrow Account.  Borrower hereby agrees to pay all Recurring
Replacement Expenditures with respect to the Property (without regard to the
amount of money then available in the Recurring Replacement Reserve Sub-Account
or the Recurring Replacement Reserve Escrow Account).  Provided that Lender has received written
notice from Borrower and not more frequently than once each month, and further
provided that no Event of Default has occurred, that there are sufficient funds
available in the Recurring Replacement Reserve Escrow Account and Borrower
shall have theretofore furnished Lender with lien waivers, copies of bills,
invoices and other reasonable documentation as may be required by Lender to
establish that the Recurring Replacement Expenditures which are the subject of
such request represent amounts due for completed or partially completed capital
work and improvements performed at the Property, Lender shall make such
payments out of the Recurring Replacement Reserve Escrow Account or shall
reimburse Borrower out of the Recurring Replacement Reserve Escrow Account if
Borrower delivers to Lender evidence satisfactory to Lender evidencing prior
payment for the Recurring Replacement Expenditures which are the subject of the
draw request or an Officer’s Certificate certifying that the funds will be used
to pay for the Recurring Replacement Expenditures which are the subject of the
draw request together with evidence reasonably satisfactory to Lender
evidencing payment in full for all Recurring Replacement Expenditures which
were the subject of prior draw requests with respect to which Borrower did not
deliver such proof.


 


Provided
that no Event of Default shall have occurred, all funds deposited into the
Recurring Replacement Reserve Escrow Account shall be held by Lender pursuant
to the provisions of this Security Instrument and shall be applied in payment
of Recurring Replacement Expenditures. 
Should an Event of Default occur, the sums on deposit in the Recurring
Replacement Reserve Sub-Account and the Recurring Replacement Reserve Escrow
Account may be applied by Lender in payment of any Recurring Replacement
Expenditures or may be applied to the payment of the Debt or any other charges
affecting all or any portion of the Cross-collateralized Properties, as Lender
in its sole discretion may determine; provided, however, that no
such application shall be deemed to have been made by operation of law or
otherwise until actually made by Lender as herein provided.


 


Section 5.09. 
Operation and Maintenance Expense Escrow Account.  Borrower hereby agrees to pay all Operating
Expenses with respect to the Property (without regard to the amount of money
then available in the Operation and Maintenance Expense Sub-Account or the
Operation and Maintenance Expense Escrow Account).  All funds allocated to the Operation and
Maintenance Expense Escrow Account shall be held by Lender pursuant to the
provisions of this 


 


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Security
Instrument.  Provided no O&M
Operative Period has occurred and is continuing, either (a) Lender shall
disburse to Borrower from the Operation and Maintenance Expense Escrow Account
on each Payment Date an amount equal to (i) the Operating Expenses set forth in
the Approved Annual Budget for such month provided for in the Approved Annual
Budget plus (ii) the Third Party Disbursements which have been substantiated in
a manner reasonably acceptable to Lender and (iii) any Extraordinary Expenses
for which sums have been deposited into the Operation and Maintenance Expense
Escrow Account pursuant to Section 5.05 hereof ((i), (ii) and (iii) are
hereinafter referred to as an “Operating Expense Disbursement”) or (b)
if requested by Borrower and if sufficient funds have been collected in the
Central Account to make the payments required under clauses (i) - (iv) of Section
5.05(a) hereof on the next succeeding Payment Date, Borrower shall be entitled
to request disbursements from the Operation and Maintenance Expense Escrow
Account on a weekly basis, for payment of the Operating Expense Disbursement
incurred or to be incurred during the then-current Interest Accrual Period or during
any prior Interest Accrual Period. 
During the continuance of an O&M Operative Period, Lender shall
disburse funds held in the Operation and Maintenance Expense Escrow Account to
Borrower on a weekly basis, within ten (10) days after delivery by Borrower to
Lender of a request therefor, in increments of at least $1,000, provided (a)
such disbursement is for the Operating Expense Disbursement; and (b) such
disbursement is accompanied by (i) an Officer’s Certificate provided monthly
certifying (A) that such funds will be used to pay Operating Expenses set forth
in the Approved Annual Budget and a description thereof, (B) that all
outstanding trade payables (other than those to be paid from the requested
disbursement or those permitted pursuant to Section 2.02(g)(viii)(C) hereof)
have been paid in full, (C) that the same has not been the subject of a
previous disbursement, and (D) that all previous disbursements have been or
will be used to pay the previously identified Operating Expenses set forth in the
Approved Annual Budget, and (B) reasonably detailed documentation satisfactory
to Lender as to the amount, necessity and purpose therefor.  Should an Event of Default occur and be
continuing, the sums on deposit in the Operation and Maintenance Expense Sub-Account
or the Operation and Maintenance Expense Escrow Account may be applied by
Lender in payment of any Operating Expenses for the Cross-collateralized
Properties or may be applied to the payment of the Debt or any other charges
affecting all or any portion of the Property as Lender, in its sole discretion,
may determine; provided, however, that no such application shall
be deemed to have been made by operation of law or otherwise until actually
made by Lender as herein provided. 
During any O&M Operative Period, the management fee payable to
Manager shall be limited to 4% per annum of the total revenues of the Property
and shall not include the 2.5% Allocable Chain Expense (as defined in the
Management Agreement).  Failure to pay
such 2.5% Allocable Chain Expense shall not be a default under the Management
Agreement.


 


Section 5.10. 
Rate Cap Agreement.  Borrower
shall at all times during the term of the Loan maintain the Rate Cap Agreement
at all times during the term of the Loan which shall be in form and substance
and issued by a bank reasonably acceptable to Lender, and shall pay all fees,
charges and expenses incurred in connection therewith.  Borrower shall comply with all of its
obligations under the terms of the Rate Cap Agreement.  All amounts paid by the issuer of the Rate
Cap Agreement (the “Counterparty”) to Borrower or Lender shall be
deposited immediately into the Central Account. 
Borrower shall take all actions reasonably requested by Lender to
enforce Lender’s rights under the Rate Cap Agreement in the event of a default
by the


 


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Counterparty.  In the event that (a) the long-term
unsecured debt obligations of the Counterparty are downgraded by the Rating
Agency below “A+” or its equivalent or (b) the Counterparty shall default
in any of its obligations under the Rate Cap Agreement, Borrower shall, at the
request of Lender, promptly but in all events within thirty (30) days, replace
the Rate Cap Agreement with an agreement having identical payment terms and
maturity as the Rate Cap Agreement and which is otherwise in form and substance
substantially similar to the Rate Cap Agreement and otherwise acceptable to
Lender with a cap provider, the long-term unsecured debt of which is rated at
least “AA-” (or its equivalent) by each Rating Agency, or which will allow each
Rating Agency to reaffirm their then current ratings of all rated certificates
issued in connection with the Securitization. 
In the event that Borrower fails to maintain the Rate Cap Agreement as
provided in this Section 5.10, Lender may purchase the Rate Cap Agreement and
the cost incurred by Lender in connection therewith shall be paid by Borrower
to Lender with interest thereon at the Default Rate from the date such cost is
incurred until such cost is paid by Borrower to Lender.  On or prior to the Payment Date in June,
2007, Borrower shall deliver to Lender a replacement Rate Cap Agreement with a
term expiring not earlier than the Maturity Date and otherwise in form and
substance acceptable to Lender which is issued by a Counterparty having a
long-term unsecured debt rating of “AA-” (or its equivalent) or better from the
Rating Agency (the “Replacement Rate Cap Agreement”).


 


Section 5.11. 
Curtailment Reserve Escrow Account.  Funds deposited into the Curtailment Reserve Escrow
Account shall be held by Lender in the Curtailment Reserve Escrow Account as
additional security for the Loan until the Loan has been paid in full.  At such time as the Debt Service Coverage
exceeds the Debt Service Coverage set forth on Exhibit H for two (2) consecutive calendar quarters, Lender
shall, upon written request from Borrower, release all sums contained in the
Curtailment Reserve Escrow Account to Borrower. 
Borrower may, at its option, deposit into the Curtailment Reserve Escrow
Account a sum equal to that which, if hypothetically applied to the prepayment
of the Loan, would cause the Debt Service Coverage to exceed the Debt Service
Coverage set forth on Exhibit H
(an “O&M Deposit”) in which case following such O&M Deposit, an
O&M Period shall cease to exist and Borrower shall not be required to make
any further O&M Deposits with respect to the applicable O&M
Period.  Subsequent to the first (1st) anniversary
of the Closing Date, provided no Event of Default exists, Borrower may, by
giving to Lender not less than ten (10) days prior written notice, elect to
apply sums in the Curtailment Reserve Escrow Account, in minimum increments of
$100,000, towards the Principal Amount. 
Any such prepayments shall be applied on the Payment Date after such
notice is given.  Notwithstanding the
foregoing, Lender shall, provided no Default has occurred and is continuing, at
the request of Borrower, disburse a portion of the sums on deposit in the
Curtailment Reserve Escrow Account in an amount equal to the total sums on
deposit in the Curtailment Reserve Escrow Account multiplied by a fraction, the
numerator of which is the amount of the Mez Loan (or if there is more than one
mezzanine loan, the applicable mezzanine loan) and the denominator of which is
the Principal Amount plus the unpaid principal amount of the Mez Loan which
would have otherwise been applied towards the prepayment of the Principal
Amount to the holder of the Mez Loan (or if there is more than one mezzanine
loan which constitutes the Mez Loan, to each such holder), provided that such
holder has agreed in writing with Lender to apply such disbursed sum to the
prepayment of the principal amount of the Mez Loan.  Should an Event of Default occur, the sums on
deposit in the Curtailment Reserve Sub-Account 


 


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and
the Curtailment Reserve Escrow Account may be applied by Lender to the payment
of the Debt or other charges affecting all or any portion of the Cross-collateralized
Properties, as Lender, in its sole discretion, may determine; provided,
however, that no such application shall be deemed to have been made by
operation of law or otherwise until actually made by Lender as herein provided.


 


Section 5.12.  Performance of Engineering Work.  (a) Borrower shall
promptly commence and diligently thereafter pursue to completion (without
regard to the amount of money then available in the Engineering Escrow Account)
the Required Engineering Work prior to the nine (9) month anniversary of the
Closing Date.  After Borrower completes
an item of Required Engineering Work, Borrower may submit to Lender an invoice
therefor with lien waivers and a statement from the Engineer, reasonably acceptable
to Lender, indicating that the portion of the Required Engineering Work in
question has been completed in compliance with all Legal Requirements, and
Lender shall, within ten (10) days thereafter, although in no event more
frequently than once each month, reimburse such amount to Borrower from the
Engineering Escrow Account; provided, however, that Borrower
shall not be reimbursed more than the amount set forth on Exhibit D hereto as the amount allocated to
the portion of the Required Engineering Work for which reimbursement is sought.


 


(b)           From and after the date all of the Required
Engineering Work is completed, Borrower may submit a written request, which
request shall be delivered together with final lien waivers and a statement
from the Engineer, as the case may be, reasonably acceptable to Lender,
indicating that all of the Required Engineering Work has been completed in
compliance with all Legal Requirements, and Lender shall, within ten (10) days
thereafter, disburse any balance of the Engineering Escrow Account to Borrower.  Should an Event of Default occur, the sums on
deposit in the Engineering Escrow Account may be applied by Lender in payment
of any Required Engineering Work or may be applied to the payment of the Debt
or any other charges affecting all or any portion of the Cross-collateralized
Properties, as Lender in its sole discretion may determine; provided, however,
that no such application shall be deemed to have been made by operation of law
or otherwise until actually made by Lender as herein provided.


 


Section 5.13. 
Loss Proceeds.  In the
event of a casualty to the Property, unless Lender elects, or is required
pursuant to Article III hereof to make all of the Insurance Proceeds available
to Borrower for restoration, Lender and Borrower shall cause all such Insurance
Proceeds to be paid by the insurer directly to the Central Account, whereupon
Lender shall, after deducting Lender’s costs of recovering and paying out such
Insurance Proceeds, including without limitation, reasonable attorneys’ fees,
apply the same to reduce the Debt in accordance with the terms of the Note; provided,
however, that if Lender elects, or is deemed to have elected, to make
the Insurance Proceeds available for restoration, all Insurance Proceeds in
respect of rent loss, business interruption or similar coverage shall be
maintained in the Central Account, to be applied by Lender in the same manner
as Rent received with respect to the operation of the Property; provided,
further, however, that in the event that the Insurance Proceeds
with respect to such rent loss, business interruption or similar insurance
policy are paid in a lump sum in advance, Lender shall hold such Insurance
Proceeds in a segregated interest-bearing escrow account, which shall be an
Eligible Account, shall estimate, in Lender’s reasonable discretion, the number
of months required for Borrower to restore the damage caused


 


73


















 


by the casualty, shall divide the aggregate rent loss, business
interruption or similar Insurance Proceeds by such number of months, and shall
disburse from such bank account into the Central Account each month during the
performance of such restoration such monthly installment of said Insurance
Proceeds.  In the event that Insurance
Proceeds are to be applied toward restoration, Lender shall hold such funds in
a segregated bank account at the Bank, which shall be an Eligible Account, and
shall disburse same in accordance with the provisions of Section 3.04
hereof.  Unless Lender elects, or is
required pursuant to Section 6.01 hereof to make all of the Condemnation
Proceeds available to Borrower for restoration, Lender and Borrower shall cause
all such Condemnation Proceeds to be paid to the Central Account, whereupon
Lender shall, after deducting Lender’s costs of recovering and paying out such
Condemnation Proceeds, including without limitation, reasonable attorneys’
fees, apply same to reduce the Debt in accordance with the terms of the Note; provided,
however, that any Condemnation Proceeds received in connection with a
temporary Taking shall be maintained in the Central Account, to be applied by
Lender in the same manner as Rent received with respect to the operation of the
Property; provided, further, however, that in the event
that the Condemnation Proceeds of any such temporary Taking are paid in a lump
sum in advance, Lender shall hold such Condemnation Proceeds in a segregated
interest-bearing bank account, which shall be an Eligible Account, shall
estimate, in Lender’s reasonable discretion, the number of months that the
Property shall be affected by such temporary Taking, shall divide the aggregate
Condemnation Proceeds in connection with such temporary Taking by such number
of months, and shall disburse from such bank account into the Central Account
each month during the pendency of such temporary Taking such monthly
installment of said Condemnation Proceeds. 
In the event that Condemnation Proceeds are to be applied toward
restoration, Lender shall hold such funds in a segregated bank account at the
Bank, which shall be an Eligible Account, and shall disburse same in accordance
with the provisions of Section 3.04 hereof.  If any Loss Proceeds are received by
Borrower, such Loss Proceeds shall be received in trust for Lender, shall be
segregated from other funds of Borrower, and shall be forthwith paid into the
Central Account, or paid to Lender to hold in a segregated bank account at the
Bank, in each case to be applied or disbursed in accordance with the
foregoing.  Any Loss Proceeds made
available to Borrower for restoration in accordance herewith, to the extent not
used by Borrower in connection with, or to the extent they exceed the cost of,
such restoration, shall be deposited into the Central Account, whereupon Lender
shall apply the same to reduce the Debt in accordance with the terms of the
Note.


 


Section 5.14.  Mez Payment Escrow Account.  Provided that no Default has occurred and is
continuing, on each Payment Date during which the Mez Loan is outstanding,
Lender shall transfer to the holder of the Mez Loan, as identified in writing
by a joint direction executed by Borrower and the holder of the Mez Loan, an
amount equal to the Mez Payment Amount (which sum shall be deemed distributions
from Borrower to the borrower under the Mez Loan).  Should an Event of Default occur, the sums on
deposit in the Mez Payment Escrow Account may be applied by Lender to the
payment of the Debt or any other charges affecting all or any portion of the
Cross-collateralized Properties, as Lender in its sole discretion may
determine; provided, however, that no such application shall be
deemed to have been made by operation of law or otherwise until actually made
by Lender as herein provided.


 


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Section 5.15.  Capex Trap Escrow Account.  Lender shall reimburse Borrower for
Replacement Expenditures which were not set forth in the Approved Annual Budget
with respect to which Borrower wishes to withdraw sums from the Capex Trap
Escrow Account, not more frequently than once each month, provided that Lender
has approved such Replacement Expenditures, no Event of Default has occurred,
that there are sufficient funds available in the Capex Trap Escrow Account and
Borrower shall have theretofore furnished Lender with lien waivers, copies of
bills, invoices and other reasonable documentation as may be required by Lender
to establish that the Replacement Expenditures which are the subject of such
request represent amounts due for completed or partially completed capital work
and improvements performed at the Property, in which case Lender shall make
such payments out of the Capex Trap Escrow Account.  In the event that all sums in the Engineering
Escrow Account have been utilized for the Required Engineering Work and no sums
remain on deposit in the Engineering Escrow Account, Lender shall, upon receipt
of written request of Borrower, transfer up to the $500,000 from the Capex Trap
Escrow Account to the Engineering Escrow Account.  In order to request such a reimbursement for
Replacement Expenditures not set forth in the Approved Annual Budget, Borrower
shall submit to Lender for Lender’s written approval a reimbursement request for
such Replacement Expenditures not later than fifteen (15) days prior to the
date for which such reimbursement is requested, in form reasonably satisfactory
to Lender setting forth in reasonable detail the basis for Borrower’s request
and a detailed description of the completed or partially completed capital work
and improvements performed at the Property and the basis for Borrower’s
characterization of such expenses as Replacement Expenditures.  Lender shall have the right to approve such
request, which approval shall not be unreasonably withheld, and in the event
that Lender objects to the proposed request submitted by Borrower, Lender shall
advise Borrower of such objections within fifteen (15) days after receipt
thereof (and deliver to Borrower a reasonably detailed description of such
objections) and Borrower may, within ten (10) days after receipt of notice
of any such objections revise such request and resubmit the same to Lender
whereupon Lender agrees to review such new submission.


 


Provided that
no Event of Default shall have occurred, all funds deposited into the Capex
Trap Escrow Account shall be held by Lender pursuant to the provisions of this
Security Instrument and shall be applied in payment of Replacement
Expenditures.  Should an Event of Default
occur, the sums on deposit in the Capex Trap Sub-Account and the Capex Trap
Escrow Account may be applied by Lender in payment of any Replacement
Expenditures or may be applied to the payment of the Debt or any other charges
affecting all or any portion of the Cross-collateralized Properties, as Lender
in its sole discretion may determine; provided, however, that no
such application shall be deemed to have been made by operation of law or
otherwise until actually made by Lender as herein provided.


 


ARTICLE VI:  CONDEMNATION


 


Section 6.01.  Condemnation.  (a)  Borrower shall notify Lender
promptly of the commencement or threat of any Taking of the Property or any
portion thereof.  Lender is hereby
irrevocably appointed as Borrower’s attorney-in-fact, coupled with an interest,
with exclusive power to collect, receive and retain the proceeds of any such
Taking as to which Borrower is or may be entitled and to make any compromise or
settlement in connection with such proceedings (subject to Borrower’s reasonable
approval, except after the occurrence of an Event of Default,


 


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in which event Borrower’s approval shall not be required), subject to
the provisions of this Security Instrument; provided, however, that
Borrower may participate in any such proceedings (without regard to the extent
of the Taking) and Borrower shall be authorized and entitled to compromise or
settle any such proceeding with respect to Condemnation Proceeds in an amount
less than five percent (5%) of the Allocated Loan Amount.  Borrower shall execute and deliver to Lender
any and all instruments reasonably required in connection with any such
proceeding promptly after request therefor by Lender.  Except as set forth above, Borrower shall not
adjust, compromise, settle or enter into any agreement with respect to such
proceedings without the prior consent of Lender.  All Condemnation Proceeds are hereby assigned
to and shall be paid to Lender to be applied in accordance with the terms
hereof.  With respect to Condemnation
Proceeds in an amount in excess of five percent (5%) of the Allocated Loan
Amount, Borrower hereby authorizes Lender to compromise, settle, collect and
receive such Condemnation Proceeds, and to give proper receipts and acquittance
therefor.  Subject to the provisions of
this Article VI, Lender may apply such Condemnation Proceeds (less any
cost to Lender of recovering and paying out such proceeds, including, without
limitation, reasonable attorneys’ fees and disbursements and costs allocable to
inspecting any repair, restoration or rebuilding work and the plans and
specifications therefor) toward the payment of the Debt or to allow such
proceeds to be used for the Work.


 


(b)           “Substantial
Taking” shall mean (i) a Taking of such portion of the Property that
would, in Lender’s reasonable discretion, leave remaining a balance of the
Property which would not under then current economic conditions, applicable
Development Laws and other applicable Legal Requirements, permit the restoration
of the Property so as to constitute a complete, rentable facility of the same
type as existed prior to the Taking, having adequate ingress and egress to the
Property, capable of producing a projected Net Operating Income (as reasonably
determined by Lender) yielding a projected Debt Service Coverage therefrom for
the next two (2) years of not less than the Required Debt Service Coverage
or (ii) a Taking which Lender is not reasonably satisfied could be
repaired within twelve (12) months and at least six (6) months prior to
the Maturity Date or (iii) a Taking of fifteen percent (15%) or more of
the Premises.


 


(c)           In the
case of a Substantial Taking, Condemnation Proceeds shall be payable to Lender
in reduction of the Debt but without any prepayment fee or charge of any kind
and, if Borrower elects to apply any Condemnation Proceeds it may receive
pursuant to this Security Instrument to the payment of the Debt, Borrower may
prepay the balance of the Debt without any prepayment fee or charge of any
kind.


 


(d)           In the
event of a Taking which is less than a Substantial Taking, Borrower at its sole
cost and expense (whether or not the award shall have been received or shall be
sufficient for restoration) shall proceed diligently to restore, or cause the
restoration of, the remaining Improvements not so taken, to maintain a
complete, rentable, self-contained fully operational facility of the same sort
as existed prior to the Taking in as good a condition as is reasonably
possible.  In the event of such a Taking,
Lender shall receive the Condemnation Proceeds and shall pay over the same:


 


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(i)            first, provided no Default shall have occurred and be
continuing, to Borrower to the extent of any portion of the award as may be
necessary to pay the reasonable cost of restoration of the Improvements
remaining, and


 


(ii)           second, to Lender, in reduction of the Debt without any
prepayment premium or charge of any kind.


 


If one or more Takings in the aggregate create a Substantial Taking,
then, in such event, the sections of this Article VI above applicable to
Substantial Takings shall apply.


 


(e)           In the
event Lender is obligated to or elects to make Condemnation Proceeds available
for the restoration or rebuilding of the Property, such proceeds shall be
disbursed in the manner and subject to the conditions set forth in Section 3.04(b) hereof.  If, in accordance with this Article VI,
any Condemnation Proceeds are used to reduce the Debt, they shall be applied in
accordance with the provisions of the Note and, with no prepayment fee or
charge of any kind.  Borrower shall
promptly upon request by Lender execute and deliver all instruments requested
by Lender for the purpose of confirming the assignment of the Condemnation
Proceeds to Lender.  Application of all
or any part of the Condemnation Proceeds to the Debt shall be made in
accordance with the provisions of Sections 3.06 and 3.07 hereof.  No application of the Condemnation Proceeds
to the reduction of the Debt shall have the effect of releasing the lien of
this Security Instrument until the remainder of the Debt has been paid in
full.  In the case of any Taking, Lender,
to the extent that Lender has not been reimbursed by Borrower, shall be
entitled, as a first priority out of any Condemnation Proceeds, to
reimbursement for all costs, fees and expenses reasonably incurred in the
determination and collection of any Condemnation Proceeds.  All Condemnation Proceeds deposited with
Lender pursuant to this Section, until expended or applied as provided herein,
shall be held in accordance with Section 3.04(b) hereof and shall
constitute additional security for the payment of the Debt and the payment and
performance of Borrower’s obligations, but Lender shall not be deemed a trustee
or other fiduciary with respect to its receipt of such Condemnation Proceeds or
any part thereof.  All awards so
deposited with Lender shall be held by Lender in an Eligible Account, but
Lender makes no representation or warranty as to the rate or amount of interest,
if any, which may accrue on any such deposit and shall have no liability in
connection therewith other than with respect to Lender’s gross negligence or
willful misconduct.  For purposes hereof,
any reference to the award shall be deemed to include interest, if any, which
has accrued thereon.


 


ARTICLE VII:  LEASES AND RENTS


 


Section 7.01.  Assignment.  (a) Borrower does hereby bargain,
sell, assign and set over unto Lender, all of Borrower’s interest in the Leases
and Rents.  The assignment of Leases and
Rents in this Section 7.01 is an absolute, unconditional and present
assignment from Borrower to Lender and not an assignment for security and the
existence or exercise of Borrower’s revocable license to collect Rent shall not
operate to subordinate this assignment to any subsequent assignment.  The exercise by Lender of any of its rights
or remedies pursuant to this Section 7.01 shall not be deemed to make
Lender a mortgagee-in-possession.  In
addition to the provisions of this Article VII, Borrower shall comply with
all terms, provisions and conditions of the Assignment.


 


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(b)           So
long as there shall exist and be continuing no Event of Default, Borrower shall
have a revocable license to take all actions with respect to all Leases and
Rents, present and future, including the right to collect and use the Rents,
subject to the terms of this Security Instrument and the Assignment.


 


(c)           In a
separate instrument Borrower shall, as requested from time to time by Lender,
assign to Lender or its nominee by specific or general assignment, any and all
Leases, such assignments to be in form and content reasonably acceptable to
Lender, but subject to the provisions of Section 7.01(b) hereof.  Borrower agrees to deliver to Lender, within
thirty (30) days after Lender’s request, a true and complete copy of every
Lease and, within ten (10) days after Lender’s request, a complete list of
the Leases, certified by Borrower to be true, accurate and complete and stating
the demised premises, the names of the lessees, the Rent payable under the
Leases, the date to which such Rents have been paid, the material terms of the
Leases, including, without limitation, the dates of occupancy, the dates of
expiration, any Rent concessions, work obligations or other inducements granted
to the lessees thereunder, and any renewal options.


 


(d)           The
rights of Lender contained in this Article VII, the Assignment or any
other assignment of any Lease shall not result in any obligation or liability
of Lender to Borrower or any lessee under a Lease or any party claiming through
any such lessee.


 


(e)           At any
time after an Event of Default, the license granted hereinabove may be revoked
by Lender, and Lender or a receiver appointed in accordance with this Security
Instrument may enter upon the Property, and collect, retain and apply the Rents
toward payment of the Debt in such priority and proportions as Lender in its
sole discretion shall deem proper.


 


(f)            In
addition to the rights which Lender may have herein, upon the occurrence of any
Event of Default, Lender, at its option, may require Borrower to pay monthly in
advance to Lender, or any receiver appointed to collect the Rents, the fair and
reasonable rental value for the use and occupation of such part of the Property
as may be used and occupied by Borrower and may require Borrower to vacate and
surrender possession of the Property to Lender or to such receiver and, in
default thereof, Borrower may be evicted by summary proceedings or otherwise.


 


Section 7.02.  Management of Property.  (a) Borrower shall manage the Property or
cause the Property to be managed in a manner which is consistent with the
Approved Manager Standard.  All Space
Leases shall provide for rental rates comparable to then existing local market
rates and terms and conditions which constitute good and prudent business
practice and are consistent with prevailing market terms and conditions, and
shall be arms-length transactions.  All
Leases shall provide that they are subordinate to this Security Instrument and
that the lessees thereunder attorn to Lender. 
Borrower shall deliver copies of all Leases, amendments, modifications
and renewals thereof to Lender. All proposed Leases for the Property shall be
subject to the prior written approval of Lender, provided, however that
Borrower may enter into new leases with unrelated third parties without
obtaining the prior consent of Lender provided that: (i) the proposed
tenant is unrelated to a tenant under an existing Lease; (ii) the proposed
leases conform with the requirements of this Section 7.02; (iii) the
space to be leased pursuant to


 


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such proposed lease does not exceed 5,000 square feet; and (iv) the
term of the proposed lease inclusive of all extensions and renewals, does not
exceed five (5) years.


 


(b)           Borrower
(i) shall observe and perform all of its material obligations under the
Leases pursuant to applicable Legal Requirements and shall not do or permit to
be done anything to impair the value of the Leases as security for the Debt; (ii) shall
promptly send copies to Lender of all notices of default which Borrower shall
receive under the Leases; (iii) shall, consistent with the Approved
Manager Standard, enforce all of the terms, covenants and conditions contained
in the Leases to be observed or performed; (iv) shall not collect any of
the Rents under the Leases more than one (1) month in advance (except that
Borrower may collect in advance such security deposits as are permitted pursuant
to applicable Legal Requirements and are commercially reasonable in the
prevailing market); (v) shall not execute any other assignment of lessor’s
interest in the Leases or the Rents except as otherwise expressly permitted
pursuant to this Security Instrument; (vi) shall not cancel or terminate
any of the Leases or accept a surrender thereof in any manner inconsistent with
the Approved Manager Standard; (vii) shall not convey, transfer or suffer
or permit a conveyance or transfer of all or any part of the Premises or the
Improvements or of any interest therein so as to effect a merger of the estates
and rights of, or a termination or diminution of the obligations of, lessees
thereunder; (viii) shall not alter, modify or change the terms of any
guaranty of any Major Space Lease or cancel or terminate any such guaranty; (ix) shall,
in accordance with the Approved Manager Standard, make all reasonable efforts
to seek lessees for space as it becomes vacant and enter into Leases in
accordance with the terms hereof; (x) shall not materially modify, alter or
amend any Major Space Lease or Property Agreement without Lender’s consent,
which consent will not be unreasonably withheld or delayed; (xi) shall notify
Lender promptly if any Pad Owner shall cease business operations or of the
occurrence of any event of which it becomes aware affecting a Pad Owner or its
property which might have any material effect on the Property; and (xii) shall,
without limitation to any other provision hereof, execute and deliver at the
request of Lender all such further assurances, confirmations and assignments in
connection with the Property as are required herein and as Lender shall from
time to time reasonably require.


 


(c)           All
security deposits of lessees, whether held in cash or any other form, shall be
treated by Borrower as trust funds, shall not be commingled with any other
funds of Borrower and, if cash, shall be deposited by Borrower in the Security
Deposit Account.  Any bond or other
instrument which Borrower is permitted to hold in lieu of cash security
deposits under applicable Legal Requirements shall be maintained in full force
and effect unless replaced by cash deposits as hereinabove described, shall be
issued by a Person reasonably satisfactory to Lender, shall, if permitted
pursuant to Legal Requirements, at Lender’s option, name Lender as payee or
mortgagee thereunder or be fully assignable to Lender and shall, in all
respects, comply with applicable Legal Requirements and otherwise be reasonably
satisfactory to Lender.  Borrower shall,
upon request, provide Lender with evidence reasonably satisfactory to Lender of
Borrower’s compliance with the foregoing. 
Following the occurrence and during the continuance of any Event of
Default, Borrower shall, upon Lender’s request, if permitted by applicable
Legal Requirements, turn over the security deposits (and any interest thereon)
to Lender to be held by Lender in accordance with the terms of the Leases and
all Legal Requirements.


 


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(d)           Intentionally
Omitted.


 


(e)           Borrower
covenants and agrees with Lender that (i) the Property will be managed at
all times by Manager pursuant to the management agreements approved by Lender (each,
a “Management Agreement”), (ii) after Borrower has knowledge of a
fifty percent (50%) or more change in Control of the ownership of Manager
(other than in connection with an IPO, provided Manager, directly or
indirectly, is Controlled by the same Person that Controls Borrower), Borrower
will promptly give Lender notice thereof (a “Manager Control Notice”)
and (iii) the Management Agreement may be terminated by Lender at any time
for cause (including, but not limited to, Manager’s gross negligence,
misappropriation of funds, willful misconduct or fraud) or at any time
following (A) the occurrence of an Event of Default, or (B) the
receipt of a Manager Control Notice, or (C) the date upon which the Debt
Service Coverage is less than the Debt Service Coverage set forth on Exhibit H for two (2) consecutive
calendar quarters and a substitute managing agent shall be appointed by
Borrower, subject to Lender’s prior written approval, which may be given or
withheld in Lender’s sole discretion and which may be conditioned on, inter
alia, a letter from each Rating Agency confirming that any rating issued by the
Rating Agency in connection with a Securitization will not, as a result of the
proposed change of Manager, be downgraded from the then current ratings
thereof, qualified or withdrawn. 
Borrower may from time to time appoint a successor manager to manage the
Property with Lender’s prior written consent which consent shall not be
unreasonably withheld or delayed, provided that any such successor manager
shall be a reputable management company which meets the Approved Manager
Standard and each Rating Agency shall have confirmed in writing that any rating
issued by the Rating Agency in connection with a Securitization will not, as a
result of the proposed change of Manager, be downgraded from the then current
ratings thereof, qualified or withdrawn. 
Borrower further covenants and agrees that Borrower shall require
Manager (or any successor managers) to maintain at all times during the term of
the Loan worker’s compensation insurance as required by Governmental Authorities.


 


(f)            There
are no franchise agreements relating to the Property and Borrower shall not
enter into any franchise agreements relating to the Property.


 


(g)           Borrower
covenants that it shall not, nor permit Manager, to sell or deliver rooms or
suites and accept payment therefor for more than thirty (30) days in advance of
delivery except in the ordinary course of Borrower’s business and in accordance
with the Approved Manager Standard.


 


(h)           Borrower
shall fund and operate, or shall cause Manager to fund and operate, the
Property in a manner consistent with a hotel of the same type and category as
the Property.


 


(i)            Borrower
shall maintain or cause Manager to maintain Inventory in kind and amount
sufficient to meet hotel industry standards for hotels comparable to the hotel
located at the Premises and at levels sufficient for the operation of the hotel
located at the Premises at historic occupancy levels.


 


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(j)            Borrower
shall deliver to Lender all notices of default or termination received by
Borrower or Manager with respect to any licenses and permits, contracts,
Property Agreements, Leases or insurance policies within three (3) Business
Days of receipt of the same.


 


(k)           If
Borrower or SPE Pledgor is a party to a Food and Beverage Lease/Operating
Agreement, Borrower and/or SPE Pledgor, as applicable, shall (i) diligently
perform and observe all of the terms, covenants and conditions of the Food and
Beverage Leases/Operating Agreements on the part of Borrower and the SPE
Pledgor to be performed and observed, (ii) promptly notify Lender of any
material default under any Food and Beverage Lease/Operating Agreement of which
it is aware and (iii) diligently enforce all of the obligations of the
Food and Beverage Lessees/Operators under the Food and Beverage
Leases/Operating Agreements.  If Borrower
or SPE Pledgor shall default in the performance or observance of any term,
covenant or condition of any Food and Beverage Leases/Operating Agreements on
the part of such Borrower or SPE Pledgor to be performed or observed beyond any
applicable grace or cure period, then, without limiting Lender’s other rights
or remedies under this Security Instrument or any other Loan Documents, and
without waiving or releasing Borrower from any of its obligations hereunder or
Borrower or the SPE Pledgor under the Food and Beverage Leases/Operating
Agreements, Lender shall have the right, but shall be under no obligation, to
pay any sums and to perform any act as may be reasonably appropriate to cause
all the terms, covenants and conditions of the Food and Beverage
Leases/Operating Agreements on the part of Borrower or SPE Pledgor to be
performed or observed.


 


(l)            Neither
Borrower nor SPE Pledgor shall, and neither Borrower nor SPE Pledgor shall
permit any other Person to (i) modify, renew, terminate or extend any Food
and Beverage Lease/Operating Agreement, transfer its interest in any Food and Beverage
Lease/Operating Agreement or consent to the assignment of any Food and Beverage
Lease/Operating Agreement, (ii) waive or release any of its rights under
any Food and Beverage Lease/Operating Agreement or (iii) consent to any
increase in its obligations under any Food and Beverage Lease/Operating
Agreement, in each case without the express consent of Lender, which consent
shall not be unreasonably withheld.  Any
action taken in violation of the foregoing without the prior express consent of
Lender shall be void and of no force and effect.


 


(m)          None of
Borrower, SPE Pledgor nor any Affiliate of any Borrower or SPE Pledgor shall
direct, solicit or otherwise collude to cause any Food and Beverage SPE Pledgor
Distributions (as defined in the Pledge Agreement of even date herewith given
by SPE Pledgor to Lender in connection with the origination of the Loan) to be
applied, disbursed or remitted in any manner inconsistent with the terms and
provisions of the Loan Documents and/or the payment instructions provided by
Lender to each Food and Beverage Lessee/Operator.  None of Borrower, SPE Pledgor nor any
Affiliate of Borrower or SPE Pledgor shall interfere with the application,
disbursement or remittance of Food and Beverage SPE Pledgor Distributions as
required under the terms and provisions of the Loan Documents and/or the
payment instructions provided by Lender to each Food and Beverage
Lessee/Operator.  Borrower and each SPE
Pledgor shall take all commercially reasonable steps necessary to cause all
revenues of the Food and Beverage Lessees/Operators to continue to be collected
by Borrower.  None of Borrower, SPE
Pledgor nor Affiliate of Borrower or SPE Pledgor shall revoke or attempt to
revoke the payment instructions provided by Lender to each Food &
Beverage Lessee/Operator.


 


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ARTICLE VIII:  MAINTENANCE AND REPAIR


 


Section 8.01.  Maintenance and Repair of the Property;
Alterations; Replacement of Equipment. 
Borrower hereby covenants and agrees:


 


(a)           Borrower
shall not (i) desert or abandon the Property, (ii) change the use of
the Property or cause or permit the use or occupancy of any part of the
Property to be discontinued if such discontinuance or use change would violate
any zoning or other law, ordinance or regulation; (iii) consent to or seek
any lowering of the zoning classification, or greater zoning restriction
affecting the Property; or (iv) without Lender’s consent, which may be
granted or withheld in Lender’s sole and absolute discretion and may be subject
to such conditions as Lender shall, in its sole and absolute discretion,
impose, take any steps whatsoever to convert the Property, or any portion
thereof, to a condominium or cooperative form of ownership.


 


(b)           Borrower
shall, at its expense, (i) take good care of the Property including
grounds generally, and utility systems and sidewalks, roads, alleys, and curbs
therein, and shall keep the same in good, safe and insurable condition and in
compliance with all applicable Legal Requirements, (ii) promptly make all
repairs to the Property, above grade and below grade, interior and exterior,
structural and nonstructural, ordinary and extraordinary, unforeseen and
foreseen, and maintain the Property in a manner appropriate for the facility
and (iii) not commit or suffer to be committed any waste of the Property
or do or suffer to be done anything which will increase the risk of fire or
other hazard to the Property or impair the value thereof.  Borrower shall keep the sidewalks, vaults,
gutters and curbs comprising, or adjacent to, the Property, clean and free from
dirt, snow, ice, rubbish and obstructions (unless such obstructions are as a
result of repairs made in accordance with the terms hereof or if necessary to
preserve safety or if required by Legal Requirements).  All repairs made by Borrower shall be made
with first-class materials, in a good and workmanlike manner, shall be equal or
better in quality and class to the original work and shall comply with all
applicable Legal Requirements and Insurance Requirements.  To the extent any of the above obligations
are obligations of tenants under Space Leases or Pad Owners or other Persons
under Property Agreements, Borrower may fulfill its obligations hereunder by
causing such tenants, Pad Owners or other Persons, as the case may be, to
perform their obligations thereunder.  As
used herein, the terms “repair” and “repairs” shall be deemed to include all
necessary replacements.


 


(c)           Borrower
shall not demolish, remove, construct, or, except as otherwise expressly
provided herein, restore, or alter the Property or any portion thereof nor
consent to or permit any such demolition, removal, construction, restoration,
addition or alteration, in each case in a manner which would diminish the value
of the Property without Lender’s prior written consent in each instance, which
consent shall not be unreasonably withheld or delayed.


 


(d)           Borrower
represents and warrants to Lender that (i) there are no fixtures,
machinery, apparatus, tools, equipment or articles of personal property
attached or appurtenant to, or located on, or used in connection with the management,
operation or maintenance of the Property, except for the Equipment and
equipment leased by Borrower for the management, operation or maintenance of
the Property in accordance with the Loan Documents; (ii) the Equipment and
the leased equipment constitute all of the fixtures, machinery, apparatus,
tools,


 


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equipment and articles of personal property necessary to the proper
operation and maintenance of the Property; and (iii) all of the Equipment
is free and clear of all liens, except for the lien of this Security Instrument,
the lien, if any, of equipment financing permitted pursuant to Section 2.02(g)(viii) hereof
and the Permitted Encumbrances.  All
right, title and interest of Borrower in and to all extensions, improvements,
betterments, renewals and appurtenances to the Property hereafter acquired by,
or released to, Borrower or constructed, assembled or placed by Borrower in the
Property, and all changes and substitutions of the security constituted
thereby, shall be and, in each such case, without any further mortgage,
encumbrance, conveyance, assignment or other act by Lender or Borrower, shall
become subject to the lien and security interest of this Security Instrument as
fully and completely, and with the same effect, as though now owned by Borrower
and specifically described in this Security Instrument, but at any and all
times Borrower shall execute and deliver to Lender any documents Lender may
reasonably deem necessary or appropriate for the purpose of specifically
subjecting the same to the lien and security interest of this Security
Instrument.


 


(e)           Notwithstanding
the provisions of this Security Instrument to the contrary, Borrower shall have
the right, at any time and from time to time, to remove and dispose of
Equipment which may have become obsolete or unfit for use or which is no longer
useful in the management, operation or maintenance of the Property.  Borrower shall promptly replace any such Equipment
so disposed of or removed with other Equipment of equal value and utility, free
of any security interest or superior title, liens or claims other than
Permitted Encumbrances, Permitted Liens or equipment financing permitted
pursuant to Section 2.02(g)(viii) hereof; except that, if by reason
of technological or other developments, replacement of the Equipment so removed
or disposed of is not necessary or desirable for the proper management,
operation or maintenance of the Property, Borrower shall not be required to
replace the same.  All such replacements
or additional equipment shall be deemed to constitute “Equipment” and shall be
covered by the security interest herein granted.


 


ARTICLE IX:  TRANSFER OR ENCUMBRANCE OF THE PROPERTY


 


Section 9.01.  Other Encumbrances.  Other than with respect to Permitted Liens
and Permitted Encumbrances, Borrower shall not further encumber or permit the
further encumbrance in any manner (whether by grant of a pledge, security
interest or otherwise) of the Property or any part thereof or interest therein,
including, without limitation, of the Rents therefrom.  In addition, Borrower shall not further
encumber and shall not permit the further encumbrance in any manner (whether by
grant of a pledge, security interest or otherwise) of Borrower or any direct or
indirect interest in Borrower except as expressly permitted pursuant to this
Security Instrument.


 


Section 9.02.  No Transfer.  (a) Borrower acknowledges that Lender
has examined and relied on the expertise of Borrower and, if applicable, each
General Partner, in owning and operating properties such as the Property in
agreeing to make the Loan and will continue to rely on Borrower’s ownership of
the Property as a means of maintaining the value of the Property as security
for repayment of the Debt and Borrower acknowledges that Lender has a valid
interest in maintaining the value of the Property.  Borrower shall not Transfer, nor permit any
Transfer, without the prior written consent of Lender, which consent Lender may
withhold in its sole and


 


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absolute discretion.  Lender
shall not be required to demonstrate any actual impairment of its security or
any increased risk of default hereunder in order to declare the Debt
immediately due and payable upon a Transfer without Lender’s consent.  This provision shall apply to every Transfer
regardless of whether voluntary or not, or whether or not Lender has consented
to any previous Transfer.


 


(b)           If any
portion of the Loan is repaid from the proceeds of an IPO, indirect equity
holders in Borrower may obtain additional financing (the “Additional
Financing”) and pledge direct or indirect equity ownership interests in
Borrower as collateral for such additional debt provided that (i) the
aggregate Additional Financing together with the then outstanding Principal
Amount and the unpaid principal amount of the Mez Loan does not exceed the
original Principal Amount plus the original principal amount of the Mez Loan on
the Closing Date, (ii) no Default exists, (iii) the aggregate annual
debt service with respect to the Loan, the Mez Loan and the Additional
Financing following the incurrence of such Additional Financing does not exceed
the annual debt service under the Loan and the Mez Loan prior to the incurrence
of such Additional Financing (but not taking into account any prior paydowns of
the Loan or the Mez Loan), (iv) such Additional Financing has a maturity
date no earlier than the Maturity Date, (v) such Additional Financing and
any pledge of collateral in connection therewith is subordinate in lien and
payment to the Loan and the Mez Loan and (vi) Borrower delivers to Lender
a letter from each Rating Agency confirming that any rating issued by the
Rating Agency in connection with a Securitization will not, as a result of the
Additional Financing, be downgraded from the then current ratings thereof,
qualified or withdrawn.


 


(c)           Borrower
may place a second mortgage on the Property or any portions thereof provided it
(i) complies with all the conditions set forth in subsection 9.02(b)(i) through
(vi) above, (ii) if the Loan is included in a Securitization,
Borrower obtains approval of the controlling class of the Securitization (and
if the Loan is not included in a Securitization, Borrower obtains the approval
of Lender), (iii) the holder of the subordinate mortgage enters into an
intercreditor agreement which is in form and substance acceptable to Lender and
(iv) the Mez Loan has been paid in full.


 


Section 9.03.  Due on Sale.  Lender may declare the Debt immediately due
and payable upon any Transfer or further encumbrance without Lender’s consent unless
otherwise specifically permitted hereunder without regard to whether any
impairment of its security or any increased risk of default hereunder can be
demonstrated.  This provision shall apply
to every Transfer or further encumbrance of the Property or any part thereof or
interest in the Property or in Borrower regardless of whether voluntary or not,
or whether or not Lender has consented to any previous Transfer or further encumbrance
of the Property or interest in Borrower unless otherwise specifically permitted
hereunder.


 


Section 9.04.  Permitted Transfer.  Notwithstanding the foregoing provisions of
this Article IX, a one time sale (and in the case of an IPO, a transaction
or series of related transactions occurring on or about the same day in
connection with the IPO), conveyance or Transfer of the Property in its
entirety (hereinafter, “Sale”) shall be permitted hereunder provided
that each of the following terms and conditions are satisfied:


 


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(a)           no Event of Default is then
continuing hereunder or under any of the other Loan Documents;


 


(b)           If the proposed Sale is to occur at
any time after a Securitization, each Rating Agency shall have delivered
written confirmation that any rating issued by such Rating Agency in connection
with the Securitization will not, as a result of the proposed Sale, be
downgraded from the then current ratings thereof, qualified or withdrawn;
provided, however, no such confirmation shall be required to be obtained from
the Rating Agencies in the event the IPO results in the outstanding principal
amount of the Loan and the Mezz Loan, collectively, being reduced by $150,000
or more and, provided, further, that, prior to January 1, 2006, no Sale (other
than in connection with an IPO) will be permitted if the Sale is to occur
within sixty (60) days of any contemplated sale of the Loan by Lender, whether
in connection with a Securitization or otherwise;


 


(c)           Borrower gives Lender written notice
of the terms of the proposed Sale not less than sixty (60) days or with respect
to an IPO, fifteen (15) days, before the date on which such Sale is scheduled
to close and, concurrently therewith, gives Lender (i) all such
information concerning the proposed transferee of the Property (hereinafter, “Buyer”)
as Lender would require in evaluating an initial extension of credit to a
borrower and Lender determines, in its sole discretion that the Buyer is
acceptable to Lender in all respects (other than in connection with an IPO) and
(ii) a non-refundable application fee equal to $15,000;


 


(d)           Borrower pays Lender, concurrently
with the closing of such Sale, a non-refundable assumption fee in an amount
equal to one percent (1%) of the then outstanding Loan Amount together with all
out-of-pocket costs and expenses, including, without limitation, reasonable
attorneys’ fees, incurred by Lender in connection with the Sale; provided,
however, that no such assumption fee shall be required in connection with a
Transfer effected in connection with an IPO (but Borrower shall be required to
pay all out-of-pocket costs and expenses of Lender);


 


(e)           In the event the applicable Transfer
will result in Borrower no longer owning the Property, Buyer assumes all of the
obligations under the Loan Documents and, prior to or concurrently with the
closing of such Sale, Buyer executes, without any cost or expense to Lender,
such documents and agreements as Lender shall reasonably require to evidence and
effectuate said assumption and delivers such legal opinions as Lender may
require;


 


(f)            In the event the applicable Transfer
will result in Borrower no longer owning the Property, Borrower and Buyer
execute, without any cost or expense to Lender, new financing statements or
financing statement amendments and any additional documents reasonably
requested by Lender;


 


(g)           In the event the applicable Transfer
will result in Borrower no longer owning the Property, Borrower delivers to
Lender, without any cost or expense to Lender, such endorsements to Lender’s
title insurance policy, hazard insurance policy endorsements or certificates
and other similar materials as Lender may deem necessary at the time of the
Sale, all in form and substance reasonably satisfactory to Lender, including,
without limitation, an


 


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endorsement or endorsements to Lender’s title
insurance policy insuring the lien of this Security Instrument, extending the
effective date of such policy to the date of execution and delivery (or, if
later, of recording) of the assumption agreement referenced above in
subparagraph (e) of this Section, with no additional exceptions added to
such policy, and insuring that fee simple title to the Property is vested in
Buyer;


 


(h)           In the event the applicable Transfer
will result in Borrower no longer owning the Property, Borrower executes and
delivers to Lender, without any cost or expense to Lender, a release of Lender,
its officers, directors, employees and agents, from all claims and liability
relating to the transactions evidenced by the Loan Documents, through and
including the date of the closing of the Sale, which agreement shall be in form
and substance satisfactory to Lender and shall be binding upon Buyer;


 


(i)            In the event the applicable Transfer
will result in Borrower no longer owning the Property, subject to the
provisions of Section 18.32 hereof, such Sale does not relieve Borrower of
any personal liability under the Note or any of the other Loan Documents for
any acts or events occurring or obligations arising prior to or simultaneously
with the closing of such Sale, and Borrower executes, without any cost or
expense to Lender, such documents and agreements as Lender shall reasonably
require to evidence and effectuate the ratification of said personal liability;


 


(j)            In the event the applicable Transfer
will result in Borrower no longer owning the Property, such Sale does not
relieve any Guarantor of its obligations under any guaranty or indemnity
agreement executed in connection with the Loan and each such Guarantor
executes, without any cost or expense to Lender, such documents and agreements
as Lender shall reasonably require to evidence and effectuate the ratification
of each such guaranty agreement, provided that if Buyer or a party associated
with Buyer approved by Lender in its sole discretion assumes the obligations of
the current Guarantor under its guaranty and Buyer or such party associated
with Buyer, as applicable, executes, without any cost or expense to Lender, a
new guaranty in similar form and substance to the existing guaranty and
otherwise satisfactory to Lender, then Lender shall release the current
Guarantor from all obligations arising under its guaranty after the closing of
such Sale; and


 


(k)           In the event the applicable Transfer
will result in Borrower no longer owning the Property, Buyer is a Single
Purpose Entity and Lender receives a non-consolidation opinion relating to
Buyer from Buyer’s counsel, which opinion is in form and substance acceptable
to Lender.


 


ARTICLE X:  CERTIFICATES


 


Section 10.01.  Estoppel Certificates.  (a) After
request by Lender, Borrower, within fifteen (15) days following Lender’s
request and at Borrower’s expense, will furnish Lender with a statement, duly
acknowledged and certified, setting forth (i) the amount of the original
principal amount of the Note, and the unpaid principal amount of the Note, (ii) the
rate of interest of the Note, (iii) the date payments of interest and/or
principal were last paid, (iv) whether to its knowledge there exists any
offsets or defenses to the payment of the Debt, and if any are alleged,


 


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the nature thereof, (v) that the Note and this Security Instrument
have not been modified or if modified, giving particulars of such modification
and (vi) that there has occurred and is then continuing no Default or if
such Default exists, the nature thereof, the period of time it has existed, and
the action being taken to remedy such Default.


 


(b)           Within
thirty (30) days after written request by Borrower, Lender shall furnish to
Borrower a written statement confirming (i) the outstanding amount of the
Debt, (ii) the rate of interest set forth in the Note, (iii) the
maturity date of the Note and (iv) the date to which interest and/or
principal has been paid.


 


(c)           Borrower
shall use all reasonable efforts to obtain estoppel certificates from tenants
in form and substance reasonably acceptable to Lender, but, provided no Event
of Default has occurred and is continuing, in no event shall Borrower be
required to deliver estoppel certificates more than twice during any Loan Year.


 


ARTICLE XI:  NOTICES


 


Section 11.01.  Notices.  Any notice, demand, statement, request or
consent made hereunder shall be in writing and delivered personally or sent to
the party to whom the notice, demand or request is being made by overnight
delivery by Federal Express or other nationally recognized overnight delivery
service, as follows and shall be deemed given when delivered personally or one (1) Business
Day after being deposited with Federal Express or such other nationally
recognized delivery service:


 


	
  If to Lender:

  	
   

  	
  To Lender, at the address first written above,

  
	
   

  	
   

  	
   

  
	
  with copies to:

  	
   

  	
  Hypo Real Estate Capital Corporation

  
	
   

  	
   

  	
  622 Third Avenue

  
	
   

  	
   

  	
  New York, New York 10017

  
	
   

  	
   

  	
  Attn: Chief Risk Officer

  
	
   

  	
   

  	
  Facsimile No.: (212) 671-6445

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Hypo Real Estate Capital Corporation

  
	
   

  	
   

  	
  622 Third Avenue

  
	
   

  	
   

  	
  New York, New York 10017

  
	
   

  	
   

  	
  Attn: Chief Legal Officer

  
	
   

  	
   

  	
  Facsimile No.: (212) 671-6368

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  and

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Proskauer Rose LLP

  
	
   

  	
   

  	
  1585 Broadway

  
	
   

  	
   

  	
  New York, New York 10036

  
	
   

  	
   

  	
  Attn: David J. Weinberger, Esq.

  
	
   

  	
   

  	
  Facsimile No.: (212) 969-2900

  



 


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  If to Borrower:

  	
   

  	
  To Borrower, at the address first written above, to the attention of
  Chief Financial Officer, Facsimile No. (212) 277-4268,

  
	
   

  	
   

  	
   

  
	
  with copies
  to:

  	
   

  	
  NorthStar
  Capital Investment Corp.

  
	
   

  	
   

  	
  527 Madison
  Avenue, 17th Floor

  
	
   

  	
   

  	
  New York,
  New York 10022

  
	
   

  	
   

  	
  Attn: Marc
  S. Gordon

  
	
   

  	
   

  	
  Facsimile
  No.: (212) 319-4557

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  and

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Skadden,
  Arps, Slate, Meagher & Flom LLP

  
	
   

  	
   

  	
  Four Times
  Square

  
	
   

  	
   

  	
  New York,
  New York 10036

  
	
   

  	
   

  	
  Attn: Neil
  L. Rock, Esq.

  
	
   

  	
   

  	
  Facsimile
  No.: (917) 777-3787

  
	
   

  	
   

  	
   

  
	
  If to Trustee:

  	
   

  	
  To Trustee at the address first written
  above,

  



 


or such other
address as either Borrower , Trustee or Lender shall hereafter specify by not
less than ten (10) days prior written notice as provided herein; provided,
however, that notwithstanding any provision of this Article to the
contrary, such notice of change of address shall be deemed given only upon
actual receipt thereof.  Rejection or
other refusal to accept or the inability to deliver because of changed
addresses of which no notice was given as herein required shall be deemed to be
receipt of the notice, demand, statement, request or consent.


 


ARTICLE XII:  INDEMNIFICATION


 


Section 12.01.  Indemnification Covering Property.  In addition, and without limitation, to any
other provision of this Security Instrument or any other Loan Document,
Borrower shall protect, indemnify and save harmless Lender, Trustee and their
successors and assigns, and each of their agents, employees, officers,
directors, stockholders, partners and members (collectively, “Indemnified
Parties”) for, from and against any claims, demands, penalties, fines,
liabilities, settlements, damages, costs and expenses of whatever kind or
nature, known or unknown, contingent or otherwise, whether incurred or imposed
within or outside the judicial process, including, without limitation,
reasonable attorneys’ fees and disbursements imposed upon or incurred by or
asserted against any of the Indemnified Parties by reason of (a) ownership
of this Security Instrument, the Assignment, the Property or any part thereof
or any interest therein or receipt of any Rents; (b) any accident, injury
to or death of any person or loss of or damage to property occurring in, on or
about the Property or any part thereof or on the adjoining sidewalks, curbs,
parking areas, streets or ways; (c) any use, nonuse or condition in, on or
about, or possession, alteration, repair, operation, maintenance or management
of, the Property or any part thereof or on the adjoining sidewalks, curbs,
parking areas, streets or ways; (d) any failure on the part of Borrower to
perform or comply with any of the terms of this Security Instrument or the
Assignment; (e) performance of any labor or services or the furnishing of
any materials or other property in respect of the Property or any part thereof;
(f) any claim by brokers, finders or similar


 


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Persons claiming to be entitled to a commission in connection with any
Lease or other transaction involving the Property or any part thereof; (g) any
Imposition including, without limitation, any Imposition attributable to the
execution, delivery, filing, or recording of any Loan Document, Lease or
memorandum thereof; (h) any lien or claim arising on or against the
Property or any part thereof under any Legal Requirement or any liability
asserted against any of the Indemnified Parties with respect thereto; (i) any
claim arising out of or in any way relating to any tax or other imposition on
the making and/or recording of this Security Instrument, the Note or any of the
other Loan Documents; (j) a Default under Sections 2.02(f), 2.02(g), 2.02(k),
2.02(t) or 2.02(w) hereof, (k) the failure of any Person to file timely with
the Internal Revenue Service an accurate Form 1099-B, Statement for
Recipients of Proceeds from Real Estate, Broker and Barter Exchange
Transactions, which may be required in connection with the Loan, or to supply a
copy thereof in a timely fashion to the recipient of the proceeds of the Loan;
(l) the claims of any lessee or any Person acting through or under any lessee
or otherwise arising under or as a consequence of any Lease or (m) the failure
to pay any insurance premiums. 
Notwithstanding the foregoing provisions of this Section 12.01 to
the contrary, Borrower shall have no obligation to indemnify the Indemnified
Parties pursuant to this Section 12.01 for liabilities, obligations,
claims, damages, penalties, causes of action, costs and expenses relative to
the foregoing which result from Lender’s, and its successors’ or assigns’,
willful misconduct or gross negligence. 
Any amounts payable to Lender by reason of the application of this Section 12.01
shall constitute a part of the Debt secured by this Security Instrument and the
other Loan Documents and shall become immediately due and payable and shall
bear interest at the Default Rate from the date the liability, obligation,
claim, cost or expense is sustained by Lender, as applicable, until paid.  The provisions of this Section 12.01
shall survive the termination of this Security Instrument whether by repayment
of the Debt, foreclosure or delivery of a deed in lieu thereof, assignment or
otherwise.  In case any action, suit or
proceeding is brought against any of the Indemnified Parties by reason of any
occurrence of the type set forth in (a) through (m) above, Borrower shall,
at Borrower’s expense, resist and defend such action, suit or proceeding or
will cause the same to be resisted and defended by counsel at Borrower’s
expense for the insurer of the liability or by counsel designated by Borrower
(unless reasonably disapproved by Lender promptly after Lender has been
notified of such counsel); provided, however, that nothing herein
shall compromise the right of Lender (or any other Indemnified Party) to
appoint its own counsel at Borrower’s expense for its defense with respect to
any action which, in the reasonable opinion of Lender or such other Indemnified
Party, as applicable, presents a conflict or potential conflict between Lender
or such other Indemnified Party that would make such separate representation advisable.  Any Indemnified Party will give Borrower
prompt notice after such Indemnified Party obtains actual knowledge of any
potential claim by such Indemnified Party for indemnification hereunder.  The Indemnified Parties shall not settle or
compromise any action, proceeding or claim as to which it is indemnified
hereunder without notice to Borrower. 
Notwithstanding the foregoing, so long as no Default has occurred and is
continuing and Borrower is resisting and defending such action, suit or
proceeding as provided above in a prudent and commercially reasonable manner,
in order to obtain the benefit of this Section 12.01 with respect to such
action, suit or proceeding, Lender and the Indemnified Parties agree that they
shall not settle such action, suit or proceeding without obtaining Borrower’s
consent which Borrower agrees not to unreasonably withhold, condition or delay;
provided, however, (x) if Borrower is not diligently defending
such action, suit or proceeding in a prudent and


 


89





















 


commercially reasonable manner as provided above and Lender has
provided Borrower with thirty (30) days’ prior written notice, or shorter
period if mandated by the requirements of the applicable law, and Borrower has
failed to correct such failure, or (y) failure to settle could, in Lender’s
reasonable judgment, expose Lender to criminal liability, Lender may settle
such action, suit or proceeding without the consent of but upon notice to Borrower
and be entitled to the benefits of this Section 12.01 with respect to the
settlement of such action, suit or proceeding.


 


ARTICLE XIII:  DEFAULTS


 


Section 13.01.  Events of Default.  The Debt shall become immediately due at the
option of Lender upon any one or more of the following events (“Event of
Default”):


 


(a)           if the
final payment, Exit Fee or prepayment premium, if any, due under the Note or
hereunder shall not be paid on Maturity;


 


(b)           if any
monthly payment of interest and/or principal due under the Note (other than the
sums described in (a) above) shall not be fully paid on the date upon
which the same is due and payable thereunder;


 


(c)           if
payment of any sum (other than the sums described in (a) above or (b) above)
required to be paid pursuant to the Note, this Security Instrument or any other
Loan Document shall not be paid within five (5) days after Lender delivers
written notice to Borrower that same is due and payable thereunder or
hereunder;


 


(d)           if
Borrower, Guarantor or, if Borrower or Guarantor is a partnership, any general
partner of Borrower or Guarantor, or, if Borrower or Guarantor is a limited
liability company, any member of Borrower or Guarantor, shall institute or
cause to be instituted any proceeding for the termination or dissolution of
Borrower, Guarantor or any such general partner or member;


 


(e)           if the
insurance policies required hereunder are not kept in full force and effect, or
if the insurance policies are not assigned and delivered to Lender as herein
provided;


 


(f)            if
Borrower or Guarantor attempts to assign its rights under this Security
Instrument or any other Loan Document or any interest herein or therein, or if
any Transfer occurs other than in accordance with the provisions hereof;


 


(g)           if any
representation or warranty of Borrower or Guarantor made herein or in any other
Loan Document or in any certificate, report, financial statement or other
instrument or agreement furnished to Lender shall prove false or misleading in
any material respect as of the date made or furnished;


 


(h)           if
Borrower, Guarantor or any general partner of Borrower, or Guarantor shall make
an assignment for the benefit of creditors or shall admit in writing its
inability to pay its debts generally as they become due;


 


(i)            if a
receiver, liquidator or trustee of Borrower, Guarantor or any general partner
of Borrower, or Guarantor shall be appointed or if Borrower, Guarantor or their
respective


 


90





















 


general partners shall be adjudicated a bankrupt or insolvent, or if
any petition for bankruptcy, reorganization or arrangement pursuant to federal
bankruptcy law, or any similar federal or state law, shall be filed by or
against, consented to, or acquiesced in, by Borrower, Guarantor or their
respective general partners or if any proceeding for the dissolution or
liquidation of Borrower, Guarantor or their respective general partners shall
be instituted; however, if such appointment, adjudication, petition or
proceeding was involuntary and not consented to by Borrower, Guarantor or their
respective general partners, as applicable, upon the same not being discharged,
stayed or dismissed within ninety (90) days or if Borrower, Guarantor or their
respective general partners shall generally not be paying its debts as they
become due;


 


(j)            if Borrower
shall be in default beyond any notice or grace period, if any, under any other
mortgage or deed of trust or security agreement covering any part of the
Property without regard to its priority relative to this Security Instrument;
provided, however, this provision shall not be deemed a waiver of the
provisions of Article IX prohibiting further encumbrances affecting the
Property or any other provision of this Security Instrument;


 


(k)           if the
Property becomes subject (i) to any lien which is superior to the lien of
this Security Instrument, other than a lien for real estate taxes and
assessments not due and payable, or (ii) to any mechanic’s, materialman’s
or other lien which is or is asserted to be superior to the lien of this
Security Instrument, and such lien shall remain undischarged (by payment,
bonding, or otherwise) for ten (10) days unless contested in accordance
with the terms hereof;


 


(l)            if
Borrower or SPE Pledgor discontinues operations with respect to a material
portion of the Property for reasons other than repair or restoration arising
from a casualty or condemnation for ten (10) days or more;


 


(m)          except
as permitted in this Security Instrument, any material alteration, demolition
or removal of any of the Improvements without the prior consent of Lender;


 


(n)           if
Borrower or SPE Pledgor consummates a transaction which would cause this
Security Instrument or Lender’s rights under this Security Instrument, the Note
or any other Loan Document to constitute a non-exempt prohibited transaction under
ERISA or result in a violation of a state statute regulating government plans
subjecting Lender to liability for a violation of ERISA or a similar state
statute; or


 


(o)           if an
Event of Default shall occur under any of the other Cross-collateralized Mortgages;
or


 


(p)           if a
default shall occur under any of the other terms, covenants or conditions of
the Note, this Security Instrument or any other Loan Document, other than as
set forth in (a) through (o) above, for ten (10) days after notice
from Lender in the case of any default which can be cured by the payment of a
sum of money, or for thirty (30) days after notice from Lender in the case of
any other default or an additional ninety (90) days if Borrower is diligently
and continuously effectuating a cure of a curable non-monetary default, other
than as set forth in (a) through (o) above.  Notwithstanding the foregoing, Borrower’s
failure to promptly commence the Work subsequent to a casualty or Taking shall
not be a default hereunder if (i) a Substantial


 


91





















 


Casualty or Substantial Taking has occurred, (ii) Lender has not
made available Loss Proceeds to Borrower for the Work for any reason other than
because a Default exists and (iii) Borrower has given written notice to
Lender that it shall obtain a Release within six (6) months of Lender
applying Loss Proceeds from the Property towards the repayment of the Debt and
Borrower diligently seeks construction financing for the Work during such
period and delivers to Lender evidence thereof.


 


Section 13.02.  Remedies.  (a) Upon the occurrence and
during the continuance of any Event of Default, Lender may, in addition to any
other rights or remedies available to it hereunder or under any other Loan
Document, at law or in equity, take such action, without notice or demand, as
it reasonably deems advisable to protect and enforce its rights against
Borrower or any one or more of the Cross-collateralized Borrowers and in and to
the Property or any one or more of the Cross-collateralized Properties
including, but not limited to, the following actions, each of which may be
pursued singly, concurrently or otherwise, at such time and in such order as
Lender may determine, in its sole discretion, without impairing or otherwise
affecting any other rights and remedies of Lender hereunder, at law or in
equity:  (i) declare all or any
portion of the unpaid Debt to be immediately due and payable; provided,
however, that upon the occurrence of any of the events specified in Section 13.01(i),
the entire Debt will be immediately due and payable without notice or demand or
any other declaration of the amounts due and payable; or (ii) bring, or
instruct Trustee to bring, an action to foreclose this Security Instrument and
without applying for a receiver for the Rents, but subject to the rights of the
tenants under the Leases, enter into or upon the Property or any part thereof,
either personally or by its agents, nominees or attorneys, and dispossess
Borrower and its agents and servants therefrom, and thereupon Lender may (A) use,
operate, manage, control, insure, maintain, repair, restore and otherwise deal
with all and every part of the Property and conduct the business thereat, (B) make
alterations, additions, renewals, replacements and improvements to or on the
Property or any part thereof, (C) exercise all rights and powers of
Borrower with respect to the Property or any part thereof, 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 earnings, revenues, rents, issues, profits and
other income of the Property and every part thereof, and (D) apply the
receipts from the Property or any part thereof to the payment of the Debt,
after deducting therefrom all expenses (including, without limitation,
reasonable attorneys’ fees and disbursements) reasonably incurred in connection
with the aforesaid operations and all amounts necessary to pay the Impositions,
insurance and other charges in connection with the Property or any part
thereof, as well as just and reasonable compensation for the services of Lender’s
third party agents; or (iii) have an appraisal or other valuation of the
Property or any part thereof performed by an Appraiser (and Borrower covenants
and agrees it shall cooperate in causing any such valuation or appraisal to be
performed) and any cost or expense incurred by Lender in connection therewith
shall constitute a portion of the Debt and be secured by this Security
Instrument and shall be immediately due and payable to Lender with interest, at
the Default Rate, until the date of receipt by Lender; or (iv) sell, or
instruct Trustee to sell, the Property or institute, or instruct Trustee to
institute, proceedings for the complete foreclosure of this Security
Instrument, or take such other action as may be allowed pursuant to Legal
Requirements, at law or in equity, for the enforcement of this Security
Instrument in which case the Property or any part thereof may be sold for cash
or credit


 


92





















 


in one or more parcels; or (v) with or without entry, and to the
extent permitted and pursuant to the procedures provided by applicable Legal
Requirements, institute proceedings for the partial foreclosure of this
Security Instrument, or take such other action as may be allowed pursuant to
Legal Requirements, at law or in equity, for the enforcement of this Security
Instrument for the portion of the Debt then due and payable, subject to the
lien of this Security Instrument continuing unimpaired and without loss of
priority so as to secure the balance of the Debt not then due; or (vi) sell,
or instruct Trustee to sell, the Property or any part thereof and any or all
estate, claim, demand, right, title and interest of Borrower therein and rights
of redemption thereof, pursuant to power of sale or otherwise, at one or more
sales, in whole or in parcels, in any order or manner, at such time and place,
upon such terms and after such notice thereof as may be required or permitted
by law, at the discretion of Lender, and in the event of a sale, by foreclosure
or otherwise, of less than all of the Property, this Security Instrument shall
continue as a lien on the remaining portion of the Property; or (vii) institute
an action, suit or proceeding in equity for the specific performance of any
covenant, condition or agreement contained in the Loan Documents, or any of
them; or (viii) recover judgment on the Note or any guaranty either
before, during or after (or in lieu of) any proceedings for the enforcement of
this Security Instrument; or (ix) apply, or direct Trustee to apply, ex
parte, for the appointment of a custodian, trustee, receiver, keeper,
liquidator or conservator of the Property or any part thereof, irrespective of
the adequacy of the security for the Debt and without regard to the solvency of
Borrower or of any Person liable for the payment of the Debt, to which
appointment Borrower does hereby consent and such receiver or other official
shall have all rights and powers permitted by applicable law and such other
rights and powers as the court making such appointment may confer, but the
appointment of such receiver or other official shall not impair or in any
manner prejudice the rights of Lender to receive the Rent with respect to any
of the Property pursuant to this Security Instrument or the Assignment; or (x)
require, at Lender’s option, Borrower to pay monthly in advance to Lender, or
any receiver appointed to collect the Rents, the fair and reasonable rental
value for the use and occupation of any portion of the Property occupied by
Borrower and may require Borrower to vacate and surrender possession to Lender
of the Property or to such receiver and Borrower may be evicted by summary
proceedings or otherwise; or (xi) without notice to Borrower (A) apply all
or any portion of the cash collateral in any Sub-Account and Escrow Account,
including any interest and/or earnings therein, to carry out the obligations of
Borrower under this Security Instrument and the other Loan Documents, to
protect and preserve the Property and for any other purpose permitted under
this Security Instrument and the other Loan Documents and/or (B) have all
or any portion of such cash collateral immediately paid to Lender to be applied
against the Debt in the order and priority set forth in the Note; or (xii)
pursue any or all such other rights or remedies as Lender and Trustee may have
under applicable law or in equity; provided, however, that the provisions of
this Section 13.02(a) shall not be construed to extend or modify any
of the notice requirements or grace periods provided for hereunder or under any
of the other Loan Documents.  Borrower
hereby waives, to the fullest extent permitted by Legal Requirements, any
defense Borrower might otherwise raise or have by the failure to make any
tenants parties defendant to a foreclosure proceeding and to foreclose their
rights in any proceeding instituted by Lender or Trustee.


 


(b)           Any time
after an Event of Default, Trustee, at the request of Lender, shall have the
power to sell the Property or any part thereof at public auction, in such
manner, at such time


 


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and place, upon such terms and conditions, and upon such public notice
as Lender may deem best for the interest of Lender, or as may be required or
permitted by applicable law, consisting of advertisement in a newspaper of
general circulation in the jurisdiction and for such period as applicable law
may require and at such other times and by such other methods, if any, as may
be required by law to convey the Property in fee simple by Trustee’s deed with
special warranty of title to and at the cost of the purchaser, who shall not be
liable to see to the application of the purchase money.  The proceeds or avails of any sale made under
or by virtue of this Section 13.02, together with any other sums which
then may be held by Lender under this Security Instrument, whether under the
provisions of this Section 13.02 or otherwise, shall be applied as
follows:


 


First:  To the payment of the third-party costs and
expenses reasonably incurred in connection with any such sale and to advances,
fees and expenses, including, without limitation, reasonable fees and expenses
of Lender’s and Trustee’s legal counsel as applicable, and of any judicial
proceedings wherein the same may be made, and of all expenses, liabilities and
advances reasonably made or incurred by Lender or Trustee under this Security Instrument,
together with interest as provided herein on all such advances made by Lender,
and all Impositions, except any Impositions or other charges subject to which
the Property shall have been sold;


 


Second:  To the payment of the whole amount then due,
owing and unpaid under the Note for principal and interest thereon, with
interest on such unpaid principal at the Default Rate from the date of the
occurrence of the earliest Event of Default that formed a basis for such sale
until the same is paid;


 


Third:  To the payment of any other portion of the
Debt required to be paid by Borrower pursuant to any provision of this Security
Instrument, the Note, or any of the other Loan Documents; and


 


Fourth:  The surplus, if any, to Borrower unless
otherwise required by Legal Requirements.


 


Lender and any
receiver or custodian of the Property or any part thereof shall be liable to
account for only those rents, issues, proceeds and profits actually received by
it.


 


(c)           Lender
or Trustee, as applicable, may adjourn from time to time any sale by it to be
made under or by virtue of this Security Instrument by announcement at the time
and place appointed for such sale or for such adjourned sale or sales and,
except as otherwise provided by any applicable provision of Legal Requirements,
Lender or Trustee, as applicable, without further notice or publication, may
make such sale at the time and place to which the same shall be so adjourned.


 


(d)           Upon
the completion of any sale or sales made by Lender or Trustee under or by virtue
of this Section 13.02, Lender or Trustee, as applicable, or any officer of
any court empowered to do so, shall execute and deliver to the accepted
purchaser or purchasers a good and sufficient instrument, or good and
sufficient instruments, granting, conveying, assigning and


 


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transferring all estate, right, title and interest in and to the
property and rights sold.  Lender is
hereby irrevocably appointed the true and lawful attorney-in-fact of Borrower
(coupled with an interest), in its name and stead, to make all necessary
conveyances, assignments, transfers and deliveries of the property and rights
so sold and for that purpose Lender may execute all necessary instruments of
conveyance, assignment, transfer and delivery, and may substitute one or more
Persons with like power, Borrower hereby ratifying and confirming all that its
said attorney-in-fact or such substitute or substitutes shall lawfully do by
virtue hereof.  Nevertheless, Borrower,
if so requested by Lender, shall ratify and confirm any such sale or sales by
executing and delivering to Lender, or to such purchaser or purchasers all such
instruments as may be advisable, in the sole judgement of Lender, for such
purpose, and as may be designated in such request.  Any such sale or sales made under or by
virtue of this Section 13.02, whether made under the power of sale herein
granted or under or by virtue of judicial proceedings or a judgment or decree
of foreclosure and sale, shall operate to divest all the estate, right, title,
interest, claim and demand whatsoever, whether at law or in equity, of Borrower
in and to the property and rights so sold, and shall, to the fullest extent
permitted under Legal Requirements, be a perpetual bar, both at law and in
equity against Borrower and against any and all Persons claiming or who may
claim the same, or any part thereof, from, through or under Borrower.


 


(e)           In the
event of any sale made under or by virtue of this Section 13.02 (whether
made under the power of sale herein granted or under or by virtue of judicial
proceedings or a judgment or decree of foreclosure and sale), the entire Debt
immediately thereupon shall, anything in the Loan Documents to the contrary
notwithstanding, become due and payable.


 


(f)            Upon
any sale made under or by virtue of this Section 13.02 (whether made under
the power of sale herein granted or under or by virtue of judicial proceedings
or a judgment or decree of foreclosure and sale), Lender may bid for and
acquire the Property or any part thereof and in lieu of paying cash therefor
may make settlement for the purchase price by crediting upon the Debt the net
sales price after deducting therefrom the expenses of the sale and the costs of
the action.


 


(g)           No
recovery of any judgment by Lender and no levy of an execution under any
judgment upon the Property or any part thereof or upon any other property of
Borrower shall release the lien of this Security Instrument upon the Property
or any part thereof, or any liens, rights, powers or remedies of Lender
hereunder, but such liens, rights, powers and remedies of Lender shall continue
unimpaired until all amounts due under the Note, this Security Instrument and
the other Loan Documents are paid in full.


 


(h)           Upon
the exercise by Lender of any power, right, privilege, or remedy pursuant to
this Security Instrument which requires any consent, approval, registration,
qualification, or authorization of any Governmental Authority, Borrower agrees
to execute and deliver, or will cause the execution and delivery of, all
applications, certificates, instruments, assignments and other documents and
papers that Lender or any purchaser of the Property may be required to obtain
for such governmental consent, approval, registration, qualification, or
authorization and Lender is hereby irrevocably appointed the true and lawful
attorney-in-fact of Borrower (coupled with an interest), in its name and stead,
to execute all such applications, certificates, instruments, assignments and
other documents and papers.


 


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Section 13.03.  Payment of Debt After Default.  If, following the occurrence of any Event of
Default, Borrower shall tender payment of an amount sufficient to satisfy the
Debt in whole or in part at any time prior to a foreclosure sale of the
Property, and if at the time of such tender prepayment of the principal balance
of the Note is not permitted by the Note or this Security Instrument, Borrower
shall, in addition to the entire Debt, also pay to Lender a sum equal to
interest which would have accrued on the principal balance of the Note at an
interest rate equal to the LIBOR Margin for the Note plus the greater of (x)
the then current LIBOR Rate and (y) the then current average yield for “This
Week” as published by the Federal Reserve Board during the most recent full
week preceding the date on which Borrower tenders such payment in Federal
Reserve Statistical Release H.15 (519) for instruments having a ten (10) year
maturity, from the date of such tender to the earlier of (a) the Maturity
Date or (b) the first day of the period during which prepayment of the
principal balance of the Note would have been permitted together with a
prepayment consideration equal to the prepayment consideration which would have
been payable as of the first day of the period during which prepayment would
have been permitted.  If at the time of
such tender, prepayment of the principal balance of the Note is permitted, such
tender by Borrower shall be deemed to be a voluntary prepayment of the
principal balance of the Note and Borrower shall, in addition to the entire
Debt, also pay to Lender the applicable prepayment consideration specified in
the Note and this Security Instrument.


 


Section 13.04.  Possession of the Property.  Upon the occurrence of any Event of Default
and the acceleration of the Debt or any portion thereof, Borrower, if an
occupant of the Property or any part thereof, upon demand of Lender, shall
immediately surrender possession of the Property (or the portion thereof so
occupied) to Lender, and if Borrower is permitted to remain in possession, the
possession shall be as a month-to-month tenant of Lender and, on demand,
Borrower shall pay to Lender monthly, in advance, a reasonable rental for the
space so occupied and in default thereof Borrower may be dispossessed.  The covenants herein contained may be
enforced by a receiver of the Property or any part thereof.  Nothing in this Section 13.04 shall be
deemed to be a waiver of the provisions of this Security Instrument making the
Transfer of the Property or any part thereof without Lender’s prior written
consent an Event of Default.


 


Section 13.05.  Interest After Default.  If any amount due under the Note, this
Security Instrument or any of the other Loan Documents is not paid within any
applicable notice and grace period after same is due, whether such date is the
stated due date, any accelerated due date or any other date or at any other
time specified under any of the terms hereof or thereof, then, in such event,
Borrower shall pay interest on the amount not so paid from and after the date
on which such amount first becomes due at the Default Rate; and such interest
shall be due and payable at such rate until the earlier of the cure of all
Events of Default or the payment of the entire amount due to Lender, whether or
not any action shall have been taken or proceeding commenced to recover the
same or to foreclose this Security Instrument. 
All unpaid and accrued interest shall be secured by this Security
Instrument as part of the Debt.  Nothing
in this Section 13.05 or in any other provision of this Security
Instrument shall constitute an extension of the time for payment of the Debt.


 


Section 13.06.  Borrower’s Actions After Default.  After the happening of any Event of Default
and immediately upon the commencement of any action, suit or other legal
proceedings


 


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by Lender to obtain judgment for the Debt, or of any other nature in
aid of the enforcement of the Loan Documents, Borrower will (a) after
receipt of notice of the institution of any such action, waive the issuance and
service of process and enter its voluntary appearance in such action, suit or
proceeding, and (b) if required by Lender, consent to the appointment of a
receiver or receivers of the Property or any part thereof and of all the
earnings, revenues, rents, issues, profits and income thereof.


 


Section 13.07.  Control by Lender After Default.  Notwithstanding the appointment of any custodian,
receiver, liquidator or trustee of Borrower, or of any of its property, or of
the Property or any part thereof, to the extent permitted by Legal
Requirements, Lender shall be entitled to obtain possession and control of all
property now and hereafter covered by this Security Instrument and the
Assignment in accordance with the terms hereof.


 


Section 13.08.  Right to Cure Defaults.  (a) Upon the
occurrence of any Event of Default, Lender or its agents may, but without any
obligation to do so and without notice to or demand on Borrower and without
releasing Borrower from any obligation hereunder, make or do the same in such
manner and to such extent as Lender may deem necessary to protect the security
hereof.  Lender and its agents are
authorized to enter upon the Property or any part thereof for such purposes, or
appear in, defend, or bring any action or proceedings to protect Lender’s
interest in the Property or any part thereof or to foreclose this Security
Instrument or collect the Debt, and the cost and expense thereof (including
reasonable attorneys’ fees to the extent permitted by law), with interest as
provided in this Section 13.08, shall constitute a portion of the Debt and
shall be immediately due and payable to Lender upon demand.  All such costs and expenses incurred by
Lender or its agents in remedying such Event of Default or in appearing in,
defending, or bringing any such action or proceeding shall bear interest at the
Default Rate, for the period from the date so demanded to the date of payment
to Lender.  All such costs and expenses
incurred by Lender or its agents together with interest thereon calculated at
the above rate shall be deemed to constitute a portion of the Debt and be
secured by this Security Instrument.


 


(b)           If
Lender makes any payment or advance that Lender is authorized by this Security
Instrument to make in the place and stead of Borrower (i) relating to the
Impositions or tax liens asserted against the Property, Lender may do so
according to any bill, statement or estimate procured from the appropriate
public office without inquiry into the accuracy of the bill, statement or
estimate or into the validity of any of the Impositions or the tax liens or
claims thereof; (ii) relating to any apparent or threatened adverse title,
lien, claim of lien, encumbrance, claim or charge, Lender will be the sole
judge of the legality or validity of same; or (iii) relating to any other
purpose authorized by this Security Instrument but not enumerated in this Section 13.08,
Lender may do so whenever, in its judgment and discretion, the payment or
advance seems necessary or desirable to protect the Property and the full
security interest intended to be created by this Security Instrument.  In connection with any payment or advance
made pursuant to this Section 13.08, Lender has the option and is
authorized, but in no event shall be obligated, to obtain a continuation report
of title prepared by a title insurance company. 
The payments and the advances made by Lender pursuant to this Section 13.08
and the cost and expenses of said title report will be due and payable by
Borrower on demand, together with interest at the Default Rate, and will be
secured by this Security Instrument.


 


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Section 13.09.  Late Payment Charge.  If any portion of the Debt is not paid in
full on or before the day on which it is due and payable hereunder (other than
the principal portion of the Debt due on the Maturity Date), Borrower shall pay
to Lender an amount equal to five percent (5%) of such unpaid portion of the
Debt (“Late Charge”) to defray the expense incurred by Lender in
handling and processing such delinquent payment, and such amount shall
constitute a part of the Debt.


 


Section 13.10.  Recovery of Sums Required to Be Paid.  Lender shall have the right from time to time
to take action to recover any sum or sums which constitute a part of the Debt
as the same become due and payable hereunder (after the expiration of any grace
period or the giving of any notice herein provided, if any), without regard to
whether or not the balance of the Debt shall be due, and without prejudice to
the right of Lender thereafter to bring an action of foreclosure, or any other
action, for a default or defaults by Borrower existing at the time such earlier
action was commenced.


 


Section 13.11.  Marshalling and Other Matters.  Borrower hereby waives, to the fullest extent
permitted by law, the benefit of all appraisement, valuation, stay, extension,
reinstatement, redemption (both equitable and statutory) and homestead laws now
or hereafter in force and all rights of marshalling in the event of any sale
hereunder of the Property or any part thereof or any interest therein.  Nothing herein or in any other Loan Document
shall be construed as requiring Lender to resort to any particular
Cross-collateralized Property for the satisfaction of the Debt in preference or
priority to any other Cross-collateralized Property but Lender may seek
satisfaction out of all the Cross-collateralized Properties or any part thereof
in its absolute discretion.  Further,
Borrower hereby expressly waives any and all rights of redemption from sale
under any order or decree of foreclosure of this Security Instrument on behalf
of Borrower, whether equitable or statutory and on behalf of each and every
Person acquiring any interest in or title to the Property or any part thereof
subsequent to the date of this Security Instrument and on behalf of all Persons
to the fullest extent permitted by applicable law.


 


Section 13.12.  Tax Reduction Proceedings.  After an Event of Default, Borrower shall be
deemed to have appointed Lender as its attorney-in-fact to seek a reduction or
reductions in the assessed valuation of the Property for real property tax
purposes or for any other purpose and to prosecute any action or proceeding in
connection therewith.  This power, being
coupled with an interest, shall be irrevocable for so long as any part of the
Debt remains unpaid and any Event of Default shall be continuing.


 


Section 13.13.  General Provisions Regarding Remedies.


 


(a)           Right
to Terminate Proceedings.  Lender or
Trustee may terminate or rescind any proceeding or other action brought in
connection with its exercise of the remedies provided in Section 13.02 at
any time before the conclusion thereof, as determined in Lender’s sole
discretion and without prejudice to Lender or Trustee.


 


(b)           No
Waiver or Release.  The failure of
Lender or Trustee to exercise any right, remedy or option provided in the Loan
Documents shall not be deemed a waiver of such right, remedy or option or of
any covenant or obligation contained in the Loan Documents.  No


 


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acceptance by Lender of any payment after the occurrence of an Event of
Default and no payment by Lender of any payment or obligation for which
Borrower is liable hereunder shall be deemed to waive or cure any Event of
Default.  No sale of all or any portion
of the Property, no forbearance on the part of Lender, and no extension of time
for the payment of the whole or any portion of the Debt or any other indulgence
given by Lender to Borrower or any other Person, shall operate to release or in
any manner affect the interest of Lender in the Property or the liability of
Borrower to pay the Debt.  No waiver by
Lender shall be effective unless it is in writing and then only to the extent
specifically stated.


 


(c)           No
Impairment; No Releases.  The
interests and rights of Lender under the Loan Documents shall not be impaired
by any indulgence, including (i) any renewal, extension or modification
which Lender may grant with respect to any of the Debt; (ii) any
surrender, compromise, release, renewal, extension, exchange or substitution
which Lender may grant with respect to the Property or any portion thereof; or (iii) any
release or indulgence granted to any maker, endorser, guarantor or surety of
any of the Debt.


 


(d)           Effect on Judgment.  No recovery of any judgment by Lender and no
levy of an execution under any judgment upon any Property or any portion
thereof shall affect in any manner or to any extent the lien of the other
Cross-collateralized Mortgages upon the remaining Cross-collateralized
Properties or any portion thereof, or any rights, powers or remedies of Lender
hereunder or thereunder. Such lien, rights, powers and remedies of Lender shall
continue unimpaired as before.


 


ARTICLE XIV:  COMPLIANCE WITH REQUIREMENTS


 


Section 14.01.  Compliance with Legal Requirements.  (a) Borrower
shall promptly comply with all present and future Legal Requirements, foreseen
and unforeseen, ordinary and extraordinary, whether requiring structural or
nonstructural repairs or alterations including, without limitation, all zoning,
subdivision, building, safety and environmental protection, land use and
development Legal Requirements, all Legal Requirements which may be applicable
to the curbs adjoining the Property or to the use or manner of use thereof, and
all rent control, rent stabilization and all other similar Legal Requirements
relating to rents charged and/or collected in connection with the Leases.  Borrower represents and warrants that the
Property is in compliance in all respects with all Legal Requirements as of the
date hereof, no notes or notices of violations of any Legal Requirements have
been entered or received by Borrower and to its best knowledge there is no
basis for the entering of such notes or notices.


 


(b)           Borrower
shall have the right to contest by appropriate legal proceedings diligently
conducted in good faith, without cost or expense to Lender or Trustee, the
validity or application of any Legal Requirement and to suspend compliance
therewith if permitted under applicable Legal Requirements, provided (i) failure
to comply therewith may not subject Lender or Trustee to any civil or criminal
liability, (ii) prior to and during such contest, Borrower shall furnish
to Lender security reasonably satisfactory to Lender, in its discretion,
against loss or injury by reason of such contest or non-compliance with such
Legal Requirement, (iii) no Event of Default shall exist during such
proceedings and such contest shall not otherwise violate any of


 


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the provisions of any of the Loan Documents, (iv) such contest
shall not (unless Borrower shall comply with the provisions of clause (ii) of
this Section 14.01(b)) subject the Property to any lien or encumbrance the
enforcement of which is not suspended or otherwise affect the priority of the
lien of this Security Instrument; (v) such contest shall not affect the
ownership, use or occupancy of the Property; (vi) the Property or any part
thereof or any interest therein shall not be in any danger of being sold,
forfeited or lost by reason of such contest by Borrower; (vii) Borrower
shall give Lender prompt notice of the commencement of such proceedings and,
upon request by Lender, notice of the status of such proceedings and/or
confirmation of the continuing satisfaction of the conditions set forth in
clauses (i) - (vi) of this Section 14.01(b); and (viii) upon
a final determination of such proceeding, Borrower shall take all steps
necessary to comply with any requirements arising therefrom.


 


(c)           Borrower
shall at all times comply with all applicable Legal Requirements with respect
to the construction, use and maintenance of any vaults adjacent to the
Property.  If by reason of the failure to
pay taxes, assessments, charges, permit fees, franchise taxes or levies of any
kind or nature, the continued use of the vaults adjacent to Property or any
part thereof is discontinued, Borrower nevertheless shall, with respect to any
vaults which may be necessary for the continued use of the Property, take such
steps (including the making of any payment) to ensure the continued use of
vaults or replacements.


 


Section 14.02.  Compliance with Recorded Documents; No
Future Grants.  Borrower shall
promptly perform and observe or cause to be performed and observed, all of the
terms, covenants and conditions of all Property Agreements and all things
necessary to preserve intact and unimpaired any and all appurtenances or other
interests or rights affecting the Property.


 


ARTICLE XV:  PREPAYMENT


 


Section 15.01.  Prepayment.  (a) Except as set forth in Section 15.01(b) hereof,
no prepayment of the Debt may be made in whole or in part.


 


(b)           Borrower
may voluntarily prepay the Loan, in whole or in part, as of the last day of an
Interest Accrual Period in accordance with the following provisions:


 


(i)            Lender shall have
received from Borrower, not less than thirty (30) days’, or with respect to an
IPO, fifteen (15) days nor more than ninety (90) days’, prior written notice
specifying the date proposed for such prepayment and the amount which is to be
prepaid.


 


(ii)           Borrower shall also
pay to Lender all interest due through and including the last day of the
Interest Accrual Period in which such prepayment is being made, together with
any and all other amounts due and owing pursuant to the terms of the Note, this
Security Instrument or the other Loan Documents.


 


(iii)          Any partial
prepayment shall be in a minimum amount of not less than $25,000 and shall be
in whole multiples of $1,000 in excess thereof.


 


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(iv)          Intentionally
omitted.


 


(v)           Any partial
prepayment of the Principal Amount, including, without limitation, Unscheduled
Payments, shall be applied to the installments of principal last due hereunder
and shall not release or relieve Borrower from the obligation to pay the Minimum
Amortization Payments (as defined in the Note) becoming due under the Note.


 


(vi)          In the event that
the Loan is prepaid in whole or in part prior to the first (1st) anniversary of
the date hereof, Borrower shall pay to Lender, together with such prepayment
and all other amounts due in connection therewith, a non-refundable amount
which shall be deemed earned by Lender upon the funding of the Loan and shall
not count to or be credited to payment of the Principal Amount, any interest
thereon or any other amounts payable under the Note, the Security Instrument or
any of the Loan Documents, equal to the Spread Maintenance Premium.


 


(vii)         Other than in
connection with a Release, the Mez Loan shall have been paid in full on or
before the date of any prepayment of the Loan.


 


Section 15.02.  Repayment.  Upon any repayment or prepayment of the Loan,
excluding any application of all or any portion of the funds in the Curtailment
Reserve Escrow Account and any application of any Loss Proceeds, Borrower shall
be required to pay to Lender a non-refundable sum (the “Exit Fee”) on the
date of such repayment or prepayment equal to one-quarter percent (.25%) of the
Principal Amount being repaid or prepaid. 
All Exit Fees shall be deemed to be earned by Lender upon the funding of
the Loan.  Notwithstanding the foregoing,
no Exit Fee shall be due with respect to repayments of the Loan made (a) in
connection with an IPO, (b) from sales proceeds from the conversion of the
Property to a condominium form of ownership with respect to which Borrower
shall sell residential condominium units to the public, which conversion the
parties hereto acknowledge may only be done with the consent of Lender and
subject to such conditions as Lender shall, in its sole and absolute
discretion, impose, or (c) in connection with a prepayment resulting from (i) regularly
scheduled amortization payments made pursuant to the Note, (ii) proceeds
of asset sales to bona fide third parties which are not Affiliates of Borrower,
(iii) equity contributions from members of Borrower or (iv) unsecured
financing including, without limitation, Additional Financing, so long as any
such equity contributions, unsecured financings or Additional Financings are
not refinanced through mortgage financing within 180 days following the date of
such equity contribution or the incurrence of Additional Financings, as
applicable.


 


Section 15.03.  Release of Property.  If Borrower prepays all or a portion of the
Loan pursuant to Section 15.01(b) hereof or at any time within six (6) months
of Lender applying Loss Proceeds from the Property towards the repayment of the
Debt, Lender shall, promptly upon satisfaction of all the following terms and
conditions execute, acknowledge and deliver to Borrower a release of this
Security Instrument (a “Release”) in recordable form with respect to the
Property:


 


(a)           If
such prepayment is a prepayment in part, but not in whole, Lender shall have
received on the date proposed for such prepayment an amount equal to the
greater of (i) the


 


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Release Price and (ii) an amount such that the Debt Yield
immediately following the Release is at least equal to no less than (A) the
Debt Yield immediately prior to effecting such Release and (B)(1) 11%, or (2) 11.5%
if such release occurs during the second (2nd) Extension Term (as defined in
the Note) but prior to the commencement of the third (3rd) Extension
Term, or  (3) 12% if such release
occurs subsequent thereto, accompanied by evidence in form and substance
satisfactory to Lender with respect thereto and an Officer’s Certificate
stating that the statements, calculations and information comprising such
evidence are true, correct and complete in all respects; provided, however,
in the event that such prepayment is made within six (6) months of a
casualty or Taking with respect to which Loss Proceeds from the Property are
applied by Lender towards the repayment of the Debt, Lender shall have received
on the date proposed for such prepayment the Allocated Loan Amount (inclusive
of any Loss Proceeds applied by Lender towards the payment of the Debt).


 


(b)           Borrower
shall, at its sole expense, prepare any and all documents and instruments
necessary to effect the Release, all of which shall be subject to the
reasonable approval of Lender, and Borrower shall pay all costs reasonably
incurred by Lender (including, but not limited to, reasonable attorneys’ fees
and disbursements, title search costs or endorsement premiums) in connection
with the review, execution and delivery of the Release.


 


(c)           No
Event of Default has occurred and is continuing.


 


ARTICLE XVI:  ENVIRONMENTAL COMPLIANCE


 


Section 16.01.  Covenants, Representations and Warranties.
 (a) Borrower
has not, at any time, and, to Borrower’s best knowledge after due inquiry and
investigation, except as set forth in the Environmental Report, no other Person
has at any time, handled, buried, stored, retained, refined, transported,
processed, manufactured, generated, produced, spilled, allowed to seep, leak,
escape or leach, or pumped, poured, emitted, emptied, discharged, injected,
dumped, transferred or otherwise disposed of or dealt with Hazardous Materials
on, to or from the Premises or any other real property owned and/or occupied by
Borrower, and Borrower does not intend to and shall not use the Property or any
part thereof or any such other real property for the purpose of handling,
burying, storing, retaining, refining, transporting, processing, manufacturing,
generating, producing, spilling, seeping, leaking, escaping, leaching, pumping,
pouring, emitting, emptying, discharging, injecting, dumping, transferring or
otherwise disposing of or dealing with Hazardous Materials, except for use and
storage for use of heating oil, cleaning fluids, pesticides and other
substances customarily used in the operation of properties that are being used
for the same purposes as the Property is presently being used, provided such
use and/or storage for use is in compliance with the requirements hereof and
the other Loan Documents and does not give rise to liability under applicable
Legal Requirements or Environmental Statutes or be the basis for a lien against
the Property or any part thereof.  In
addition, without limitation to the foregoing provisions, Borrower represents
and warrants that, to the best of its knowledge, after due inquiry and investigation,
except as previously disclosed in writing to Lender, there is no asbestos in,
on, over, or under all or any portion of the fire-proofing or any other portion
of the Property.


 


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(b)           Borrower,
after due inquiry and investigation, knows of no seepage, leak, escape, leach,
discharge, injection, release, emission, spill, pumping, pouring, emptying or
dumping of Hazardous Materials into waters on, under or adjacent to the
Property or any part thereof or any other real property owned and/or occupied
by Borrower, or onto lands from which such Hazardous Materials might seep, flow
or drain into such waters, except as disclosed in the Environmental Report.


 


(c)           Borrower
shall not permit any Hazardous Materials to be handled, buried, stored,
retained, refined, transported, processed, manufactured, generated, produced,
spilled, allowed to seep, leak, escape or leach, or to be pumped, poured,
emitted, emptied, discharged, injected, dumped, transferred or otherwise
disposed of or dealt with on, under, to or from the Property or any portion
thereof at any time, except for use and storage for use of heating oil,
ordinary cleaning fluids, pesticides and other substances customarily used in
the operation of properties that are being used for the same purposes as the
Property is presently being used, provided such use and/or storage for use is
in compliance with the requirements hereof and the other Loan Documents and
does not give rise to liability under applicable Legal Requirements or be the
basis for a lien against the Property or any part thereof.


 


(d)           Borrower
represents and warrants that no actions, suits, or proceedings have been
commenced, or are pending, or to the best knowledge of Borrower, are threatened
with respect to any Legal Requirement governing the use, manufacture, storage,
treatment, transportation, or processing of Hazardous Materials with respect to
the Property or any part thereof. 
Borrower has received no notice of, and, except as disclosed in the
Environmental Report, after due inquiry, has no knowledge of any fact,
condition, occurrence or circumstance which with notice or passage of time or
both would give rise to a claim under or pursuant to any Environmental Statute
pertaining to Hazardous Materials on, in, under or originating from the
Property or any part thereof or any other real property owned or occupied by
Borrower or arising out of the conduct of Borrower, including, without
limitation, pursuant to any Environmental Statute.


 


(e)           Borrower
has not waived any Person’s liability with regard to Hazardous Materials in,
on, under or around the Property, nor has Borrower retained or assumed,
contractually or by operation of law, any other Person’s liability relative to
Hazardous Materials or any claim, action or proceeding relating thereto.


 


(f)            In
the event that there shall be filed a lien against the Property or any part
thereof pursuant to any Environmental Statute pertaining to Hazardous
Materials, Borrower shall, within sixty (60) days or, in the event that the
applicable Governmental Authority has commenced steps to cause the Premises or
any part thereof to be sold pursuant to the lien, within fifteen (15) days,
from the date that Borrower receives notice of such lien, either (i) pay the
claim and remove the lien from the Property, or (ii) furnish (A) a
bond satisfactory to Lender in the amount of the claim out of which the lien
arises, (B) a cash deposit in the amount of the claim out of which the
lien arises, or (C) other security reasonably satisfactory to Lender in an
amount sufficient to discharge the claim out of which the lien arises.


 


(g)           Borrower
represents and warrants that (i) except as disclosed in the Environmental
Report, Borrower has no knowledge of any violation of any Environmental


 


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Statute or any Environmental Problem in connection with the Property,
nor has Borrower been requested or required by any Governmental Authority to
perform any remedial activity or other responsive action in connection with any
Environmental Problem and (ii) neither the Property nor any other property
owned by Borrower is included or, to Borrower’s best knowledge, after due
inquiry and investigation, proposed for inclusion on the National Priorities
List issued pursuant to CERCLA by the United States Environmental Protection
Agency (the “EPA”) or on the inventory of other potential “Problem”
sites issued by the EPA or has been identified by the EPA as a potential CERCLA
site or included or, to Borrower’s knowledge, after due inquiry and
investigation, proposed for inclusion on any list or inventory issued pursuant
to any other Environmental Statute, if any, or issued by any other Governmental
Authority.  Borrower covenants that
Borrower will comply with all Environmental Statutes affecting or imposed upon
Borrower or the Property.


 


(h)           Borrower
covenants that it shall promptly notify Lender of the presence and/or release
of any Hazardous Materials and of any request for information or any inspection
of the Property or any part thereof by any Governmental Authority with respect
to any Hazardous Materials and provide Lender with copies of such request and
any response to any such request or inspection. 
Borrower covenants that it shall, in compliance with applicable Legal
Requirements, conduct and complete all investigations, studies, sampling and
testing (and promptly shall provide Lender with copies of any such studies and
the results of any such test) and all remedial, removal and other actions necessary
to clean up and remove all Hazardous Materials in, on, over, under, from or
affecting the Property or any part thereof in accordance with all such Legal
Requirements applicable to the Property or any part thereof to the satisfaction
of Lender.


 


(i)            Following
the occurrence of an Event of Default hereunder, and without regard to whether
Lender shall have taken possession of the Property or a receiver has been
requested or appointed or any other right or remedy of Lender has or may be
exercised hereunder or under any other Loan Document, Lender shall have the
right (but no obligation) to conduct such investigations, studies, sampling
and/or testing of the Property or any part thereof as Lender may, in its
discretion, determine to conduct, relative to Hazardous Materials.  All costs and expenses incurred in connection
therewith including, without limitation, consultants’ fees and disbursements
and laboratory fees, shall constitute a part of the Debt and shall, upon demand
by Lender, be immediately due and payable and shall bear interest at the
Default Rate from the date so demanded by Lender until reimbursed.  Borrower shall, at its sole cost and expense,
fully and expeditiously cooperate in all such investigations, studies,
samplings and/or testings including, without limitation, providing all relevant
information and making knowledgeable people available for interviews.


 


(j)            Borrower
represents and warrants that all paint and painted surfaces existing within the
interior or on the exterior of the Improvements are not flaking, peeling,
cracking, blistering, or chipping in a manner which could reasonably be
expected to have a Material Adverse Effect, and do not contain lead or are
maintained in a condition that prevents exposure of young children to lead-based
paint, as of the date hereof, and that the current inspections, operation, and
maintenance program at the Property with respect to lead-based paint sufficient
to ensure that all painted surfaces within the Property shall be maintained in
a condition that


 


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prevents exposure of tenants to lead-based paint.  To Borrower’s knowledge, there have been no
claims for adverse health effects from exposure on the Property to lead-based
paint or requests for the investigation, assessment or removal of lead-based
paint at the Property.


 


(k)           Borrower
represents and warrants that except in accordance with all applicable
Environmental Statutes and as disclosed in the Environmental Report, (i) no
underground treatment or storage tanks or pumps or water, gas, or oil wells are
or have been located about the Property, (ii) no PCBs or transformers,
capacitors, ballasts or other equipment that contain dielectric fluid
containing PCBs are located about the Property, (iii) no insulating
material containing urea formaldehyde is located about the Property and (iv) no
asbestos-containing material is located about the Property, in a manner which
could reasonably be expected to have a Material Adverse Effect.


 


Section 16.02.  Environmental Indemnification.  Borrower shall defend, indemnify and hold
harmless the Indemnified Parties for, from and against any claims, demands,
penalties, fines, liabilities, settlements, damages, costs and expenses of
whatever kind or nature, known or unknown, contingent or otherwise, whether
incurred or imposed within or outside the judicial process, including, without
limitation, reasonable attorneys’ and consultants’ fees and disbursements and
investigations and laboratory fees arising out of, or in any way related to any
Environmental Problem, including without limitation:


 


(a)           the
presence, disposal, escape, seepage, leakage, spillage, discharge, emission,
release or threat of release of any Hazardous Materials in, on, over, under,
from or affecting the Property or any part thereof whether or not disclosed by
the Environmental Report;


 


(b)           any
personal injury (including wrongful death, disease or other health condition
related to or caused by, in whole or in part, any Hazardous Materials) or
property damage (real or personal) arising out of or related to any Hazardous
Materials in, on, over, under, from or affecting the Property or any part
thereof whether or not disclosed by the Environmental Report;


 


(c)           any
action, suit or proceeding brought or threatened, settlement reached, or order
of any Governmental Authority relating to such Hazardous Material whether or
not disclosed by the Environmental Report; and/or


 


(d)           any
violation of the provisions, covenants, representations or warranties of Section 16.01
hereof or of any Legal Requirement which is based on or in any way related to
any Hazardous Materials in, on, over, under, from or affecting the Property or
any part thereof including, without limitation, the cost of any work performed
and materials furnished in order to comply therewith whether or not disclosed
by the Environmental Report.


 


Notwithstanding
the foregoing provisions of this Section 16.02 to the contrary, Borrower
shall have no obligation to indemnify Lender for liabilities, claims, damages,
penalties, causes of action, costs and expenses relative to the foregoing which
result directly from Lender’s willful misconduct or gross negligence.  Any amounts payable to Lender by reason of
the application of this Section 16.02 shall be secured by this Security
Instrument and shall, upon demand by


 


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Lender, become immediately due and payable
and shall bear interest at the Default Rate from the date so demanded by Lender
until paid.


 


This
indemnification shall survive the termination of this Security Instrument
whether by repayment of the Debt, foreclosure or deed in lieu thereof,
assignment, or otherwise.  The indemnity
provided for in this Section 16.02 shall not be included in any
exculpation of Borrower or its principals from personal liability provided for
in this Security Instrument or in any of the other Loan Documents.  Nothing in this Section 16.02 shall be
deemed to deprive Lender of any rights or remedies otherwise available to
Lender, including, without limitation, those rights and remedies provided
elsewhere in this Security Instrument or the other Loan Documents.


 


Section 16.03.  Development and Implementation of
Operations and Maintenance Program. 
Borrower hereby covenants to prepare or cause to be prepared an
operations and maintenance program (the “O&M Program”) for the
Premises which addresses any requirements of the Environmental Report and which
includes (a) if recommended in the Environmental Report, a plan for the
encapsulation, removal or other action with respect to asbestos containing
material (“ACM”)at the Premises; and (b) compliance with such other
recommendations contained in the Environmental Report.  The O&M Program shall be subject to
Lender’s approval and within ninety (90) days of the date hereof Borrower shall
provide Lender with evidence reasonably satisfactory to Lender that the O&M
Program has been established and is in operation.  Borrower hereby covenants and agrees that, during
the term of the Loan, including any extension or renewal thereof, Borrower
shall comply in all respects with the terms and conditions of the O&M
Program.


 


ARTICLE XVII:  ASSIGNMENTS


 


Section 17.01.  Participations and Assignments.  Lender shall, at no cost to Borrower except
as otherwise provided in Sections 18.29, 18.30 and 18.31 hereof have the right
to assign this Security Instrument and/or any of the Loan Documents, and to
transfer, assign or sell participations and subparticipations (including blind
or undisclosed participations and subparticipations) in the Loan Documents and
the obligations hereunder to any Person; provided, however, that no such
participation shall increase, decrease or otherwise affect either Borrower’s or
Lender’s rights or obligations under this Security Instrument or the other Loan
Documents.


 


ARTICLE XVIII:  MISCELLANEOUS


 


Section 18.01.  Right of Entry.  Lender and its agents shall have the right to
enter and inspect the Property or any part thereof at all reasonable times,
and, except in the event of an emergency, upon reasonable notice and to inspect
Borrower’s books and records and to make abstracts and reproductions thereof.


 


Section 18.02.  Cumulative Rights.  The rights of Lender under this Security
Instrument shall be separate, distinct and cumulative and none shall be given
effect to the exclusion of the others. 
No act of Lender shall be construed as an election to proceed under any
one provision herein to the exclusion of any other provision.  Lender shall not be limited exclusively to
the


 


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rights and remedies herein stated but shall be entitled, subject to the
terms of this Security Instrument, to every right and remedy now or hereafter
afforded by law.


 


Section 18.03.  Liability.  If Borrower consists of more than one Person,
the obligations and liabilities of each such Person hereunder shall be joint
and several.


 


Section 18.04.  Exhibits Incorporated.  The information set forth on the cover
hereof, and the Exhibits annexed hereto, are hereby incorporated herein as a
part of this Security Instrument with the same effect as if set forth in the
body hereof.


 


Section 18.05.  Severable Provisions.  If any term, covenant or condition of the
Loan Documents including, without limitation, the Note or this Security
Instrument, is held to be invalid, illegal or unenforceable in any respect,
such Loan Document shall be construed without such provision.


 


Section 18.06.  Duplicate Originals.  This Security Instrument may be executed in
any number of duplicate originals and each such duplicate original shall be
deemed to constitute but one and the same instrument.


 


Section 18.07.  No Oral Change.  The terms of this Security Instrument,
together with the terms of the Note and the other Loan Documents, constitute
the entire understanding and agreement of the parties hereto and supersede all
prior agreements, understandings and negotiations between Borrower and Lender
with respect to the Loan.  This Security
Instrument, and any provisions hereof, may not be modified, amended, waived,
extended, changed, discharged or terminated orally or by any act on the part of
Borrower or Lender, but only by an agreement in writing signed by the party
against whom enforcement of any modification, amendment, waiver, extension,
change, discharge or termination is sought.


 


Section 18.08.  Waiver of Counterclaim, Etc.  BORROWER HEREBY WAIVES THE RIGHT TO ASSERT A
COUNTERCLAIM, OTHER THAN A COMPULSORY COUNTERCLAIM, IN ANY ACTION OR PROCEEDING
BROUGHT AGAINST IT BY LENDER OR ITS AGENTS, AND WAIVES TRIAL BY JURY IN ANY
ACTION OR PROCEEDING BROUGHT BY EITHER PARTY HERETO AGAINST THE OTHER OR IN ANY
COUNTERCLAIM BORROWER MAY BE PERMITTED TO ASSERT HEREUNDER OR WHICH MAY BE
ASSERTED BY LENDER OR ITS AGENTS, AGAINST BORROWER, OR IN ANY MATTERS
WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS SECURITY INSTRUMENT
OR THE DEBT.


 


Section 18.09.  Headings; Construction of Documents; etc.  The table of contents, headings and captions
of various paragraphs of this Security Instrument are for convenience of
reference only and are not to be construed as defining or limiting, in any way,
the scope or intent of the provisions hereof. 
Borrower acknowledges that it was represented by competent counsel in
connection with the negotiation and drafting of this Security Instrument and
the other Loan Documents and that neither this Security Instrument nor the
other Loan Documents shall be subject to the principle of construing the
meaning against the Person who drafted same.


 


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Section 18.10.  Sole Discretion of Lender.  Whenever Lender exercises any right given to
it to approve or disapprove, or any arrangement or term is to be satisfactory
to Lender, the decision of Lender to approve or disapprove or to decide that
arrangements or terms are satisfactory or not satisfactory shall be in the sole
discretion of Lender and shall be final and conclusive, except as may be
otherwise specifically provided herein.


 


Section 18.11.  Waiver of Notice.  Borrower shall not be entitled to any notices
of any nature whatsoever from Lender except with respect to matters for which
this Security Instrument specifically and expressly provides for the giving of
notice by Lender to Borrower and except with respect to matters for which Borrower
is not, pursuant to applicable Legal Requirements, permitted to waive the
giving of notice.


 


Section 18.12.  Covenants Run with the Land.  All of the grants, covenants, terms,
provisions and conditions herein shall run with the Premises, shall be binding
upon Borrower and shall inure to the benefit of Lender, subsequent holders of
this Security Instrument and their successors and assigns.  Without limitation to any provision hereof,
the term “Borrower” shall include and refer to the borrower named herein, any
subsequent owner of the Property, and its respective heirs, executors, legal
representatives, successors and assigns. 
The representations, warranties and agreements contained in this
Security Instrument and the other Loan Documents are intended solely for the
benefit of the parties hereto, shall confer no rights hereunder, whether legal
or equitable, in any other Person and no other Person shall be entitled to rely
thereon.


 


Section 18.13.  Applicable Law.  THIS SECURITY INSTRUMENT WAS NEGOTIATED IN
NEW YORK, AND MADE BY BORROWER AND ACCEPTED BY LENDER IN THE STATE OF NEW YORK,
AND THE PROCEEDS OF THE NOTE WERE DISBURSED FROM NEW YORK, WHICH STATE THE
PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE
UNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS, INCLUDING, WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE.  THIS SECURITY INSTRUMENT
AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND PERFORMED IN SUCH STATE AND ANY APPLICABLE LAW OF THE UNITED STATES OF
AMERICA, EXCEPT THAT AT ALL TIMES THE PROVISIONS FOR THE CREATION, PERFECTION,
PRIORITY, ENFORCEMENT AND FORECLOSURE OF THE LIENS AND SECURITY INTERESTS
CREATED HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAW OF
THE STATE IN WHICH THE PREMISES ARE LOCATED, IT BEING UNDERSTOOD THAT, TO THE
FULLEST EXTENT PERMITTED BY THE LAW OF SUCH STATE, THE LAW OF THE STATE OF NEW
YORK SHALL GOVERN THE VALIDITY AND ENFORCEABILITY OF ALL LOAN DOCUMENTS, AND
THE DEBT OR OBLIGATIONS ARISING HEREUNDER.


 


Section 18.14.  Security Agreement.  (a) (i) This
Security Instrument is both a real property mortgage, deed to secure debt or
deed of trust, as applicable, and a “security agreement” within the meaning of
the UCC.  The Property includes both real
and personal property and all


 


108





















 


other rights and interests, whether tangible or intangible in nature,
of Borrower in the Property.  This
Security Instrument is filed as a fixture filing and covers goods which are or
are to become fixtures on the Property. 
Borrower by executing and delivering this Security Instrument has granted
to Lender, as security for the Debt, a security interest in the Property to the
full extent that the Property may be subject to the UCC (said portion of the
Property so subject to the UCC being called in this Section 18.14 the “Collateral”).  If an Event of Default shall occur, Lender,
in addition to any other rights and remedies which it may have, shall have and
may exercise immediately and without demand, any and all rights and remedies
granted to a secured party upon default under the UCC, including, without
limiting the generality of the foregoing, the right to take possession of the
Collateral or any part thereof, and to take such other measures as Lender may
deem necessary for the care, protection and preservation of the Collateral.  Upon request or demand of Lender following an
Event of Default, Borrower shall, at its expense, assemble the Collateral and
make it available to Lender at a convenient place acceptable to Lender.  Borrower shall pay to Lender on demand any
and all expenses, including reasonable legal expenses and attorneys’ fees,
incurred or paid by Lender in protecting its interest in the Collateral and in
enforcing its rights hereunder with respect to the Collateral.  Any disposition pursuant to the UCC of so
much of the Collateral as may constitute personal property shall be considered
commercially reasonable if made pursuant to a public sale which is advertised
at least twice in a newspaper in which sheriff’s sales are advertised in the
county where the Premises is located. 
Any notice of sale, disposition or other intended action by Lender with
respect to the Collateral given to Borrower in accordance with the provisions
hereof at least ten (10) days prior to such action, shall constitute
reasonable notice to Borrower.  The
proceeds of any disposition of the Collateral, or any part thereof, may be
applied by Lender to the payment of the Debt in such priority and proportions
as Lender in its discretion shall deem proper. 
It is not necessary that the Collateral be present at any disposition
thereof.  Lender shall have no obligation
to clean-up or otherwise prepare the Collateral for disposition.


 


(ii)           The mention in a financing statement filed in the records
normally pertaining to personal property of any portion of the Property shall not
derogate from or impair in any manner the intention of this Security
Instrument.  Lender hereby declares that
all items of Collateral are part of the real property encumbered hereby to the
fullest extent permitted by law, regardless of whether any such item is
physically attached to the Improvements or whether serial numbers are used for
the better identification of certain items. 
Specifically, the mention in any such financing statement of any items
included in the Property shall not be construed to alter, impair or impugn any
rights of Lender as determined by this Security Instrument or the priority of
Lender’s lien upon and security interest in the Property in the event that
notice of Lender’s priority of interest as to any portion of the Property is
required to be filed in accordance with the UCC to be effective against or take
priority over the interest of any particular class of persons, including the
federal government or any subdivision or instrumentality thereof.  No portion of the Collateral constitutes or
is the proceeds of “Farm Products”, as defined in the UCC.


 


(iii)          If Borrower is at any time a beneficiary under a letter of
credit now or hereafter issued in favor of Borrower, Borrower shall promptly
notify Lender thereof and, at the request and option of Lender, Borrower shall,
pursuant to an agreement in form and substance reasonably satisfactory to
Lender, either (A) arrange for the issuer and any confirmer of such letter
of credit to consent to an assignment to Lender of the proceeds of any drawing
under the


 


109





















 


letter
of credit or (B) arrange for Lender to become the transferee beneficiary
of the letter of credit, with Lender agreeing, in each case, that the proceeds
of any drawing under the letter to credit are to be applied as provided in this
Security Instrument.


 


(iv)          Borrower and Lender acknowledge that for the purposes of Article 9
of the UCC, the law of the State of New York shall be the law of the
jurisdiction of the bank in which the Central Account is located.


 


(v)           Lender may comply with any applicable Legal Requirements
in connection with the disposition of the Collateral, and Lender’s compliance
therewith will not be considered to adversely affect the commercial
reasonableness of any sale of the Collateral.


 


(vi)          Lender may sell the Collateral without giving any
warranties as to the Collateral. Lender may specifically disclaim any
warranties of title, possession, quiet enjoyment or the like.  This procedure will not be considered to
adversely affect the commercial reasonableness of any sale of the Collateral.


 


(vii)         If Lender sells any of the Collateral upon credit, Borrower
will be credited only with payments actually made by the purchaser, received by
Lender and applied to the indebtedness of Borrower.  In the event the purchaser of the Collateral
fails to fully pay for the Collateral, Lender may resell the Collateral and
Borrower will be credited with the proceeds of such sale.


 


(b)           Borrower
hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an
interest, to file with the appropriate public office on its behalf any
financing or other statements signed only by Lender, as secured party, or, to
the extent permitted under the UCC, unsigned, in connection with the Collateral
covered by this Security Instrument.


 


Section 18.15.  Actions and Proceedings.  Lender has the right to appear in and defend
any action or proceeding brought with respect to the Property in its own name
or, if required by Legal Requirements or, if in Lender’s reasonable judgment,
it is necessary, in the name and on behalf of Borrower, which Lender believes
will adversely affect the Property or this Security Instrument and to bring any
action or proceedings, in its name or in the name and on behalf of Borrower,
which Lender, in its discretion, decides should be brought to protect its
interest in the Property.


 


Section 18.16.  Usury Laws.  This Security Instrument and the Note are
subject to the express condition, and it is the expressed intent of the
parties, that at no time shall Borrower be obligated or required to pay
interest on the principal balance due under the Note at a rate which could
subject the holder of the Note to either civil or criminal liability as a
result of being in excess of the maximum interest rate which Borrower is
permitted by law to contract or agree to pay. 
If by the terms of this Security Instrument or the Note, Borrower is at
any time required or obligated to pay interest on the principal balance due
under the Note at a rate in excess of such maximum rate, such rate of interest
shall be deemed to be immediately reduced to such maximum rate and the interest
payable shall be computed at such maximum rate and all prior interest payments
in excess of such maximum rate shall be applied and shall be deemed to have


 


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been payments in reduction of the principal balance of the Note.  No application to the principal balance of
the Note pursuant to this Section 18.16 shall give rise to any requirement
to pay any prepayment fee or charge of any kind due hereunder, if any.


 


Section 18.17.  Remedies of Borrower.  In the event that a claim or adjudication is
made that Lender has acted unreasonably or unreasonably delayed acting in any
case where by law or under the Note, this Security Instrument or the Loan
Documents, it has an obligation to act reasonably or promptly, Lender shall not
be liable for any monetary damages, and Borrower’s remedies shall be limited to
injunctive relief or declaratory judgment.


 


Section 18.18.  Offsets, Counterclaims and Defenses.  Any assignee of this Security Instrument, the
Assignment and the Note shall take the same free and clear of all offsets,
counterclaims or defenses which are unrelated to the Note, the Assignment or
this Security Instrument which Borrower may otherwise have against any assignor
of this Security Instrument, the Assignment and the Note and no such unrelated
counterclaim or defense shall be interposed or asserted by Borrower in any
action or proceeding brought by any such assignee upon this Security
Instrument, the Assignment or the Note and any such right to interpose or
assert any such unrelated offset, counterclaim or defense in any such action or
proceeding is hereby expressly waived by Borrower.


 


Section 18.19.  No Merger.  If Borrower’s and Lender’s estates become the
same including, without limitation, upon the delivery of a deed by Borrower in
lieu of a foreclosure sale, or upon a purchase of the Property by Lender in a
foreclosure sale, this Security Instrument and the lien created hereby shall
not be destroyed or terminated by the application of the doctrine of merger and
in such event Lender shall continue to have and enjoy all of the rights and
privileges of Lender as to the separate estates; and, as a consequence thereof,
upon the foreclosure of the lien created by this Security Instrument, any
Leases or subleases then existing and created by Borrower shall not be
destroyed or terminated by application of the law of merger or as a result of
such foreclosure unless Lender or any purchaser at any such foreclosure sale shall
so elect.  No act by or on behalf of
Lender or any such purchaser shall constitute a termination of any Lease or
sublease unless Lender or such purchaser shall give written notice thereof to
such lessee or sublessee.


 


Section 18.20.  Restoration of Rights.  In case Lender shall have proceeded to
enforce any right under this Security Instrument by foreclosure sale, entry or
otherwise, and such proceedings shall have been discontinued or abandoned for
any reason or shall have been determined adversely, then, in every such case,
Borrower and Lender shall be restored to their former positions and rights
hereunder with respect to the Property subject to the lien hereof.


 


Section 18.21.  Waiver of Statute of Limitations.  The pleadings of any statute of limitations
as a defense to any and all obligations secured by this Security Instrument are
hereby waived to the full extent permitted by Legal Requirements.


 


Section 18.22.  Advances.  This Security Instrument shall cover any and
all advances made pursuant to the Loan Documents, rearrangements and renewals
of the Debt and all extensions in the time of payment thereof, even though such
advances, extensions or renewals be


 


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evidenced by new promissory notes or other instruments hereafter
executed and irrespective of whether filed or recorded.  Likewise, the execution of this Security
Instrument shall not impair or affect any other security which may be given to
secure the payment of the Debt, and all such additional security shall be
considered as cumulative.  The taking of
additional security, execution of partial releases of the security, or any
extension of time of payment of the Debt shall not diminish the force, effect
or lien of this Security Instrument and shall not affect or impair the
liability of Borrower and shall not affect or impair the liability of any
maker, surety, or endorser for the payment of the Debt.


 


Section 18.23.  Application of Default Rate Not a Waiver.  Application of the Default Rate shall not be
deemed to constitute a waiver of any Default or Event of Default or any rights
or remedies of Lender under this Security Instrument, any other Loan Document
or applicable Legal Requirements, or a consent to any extension of time for the
payment or performance of any obligation with respect to which the Default Rate
may be invoked.


 


Section 18.24.  Intervening Lien.  To the fullest extent permitted by law, any
agreement hereafter made pursuant to this Security Instrument shall be superior
to the rights of the holder of any intervening lien.


 


Section 18.25.  No Joint Venture or Partnership.  Borrower and Lender intend that the
relationship created hereunder be solely that of mortgagor and mortgagee or
grantor and beneficiary or borrower and lender, as the case may be.  Nothing herein is intended to create a joint
venture, partnership, tenancy-in-common, or joint tenancy relationship between
Borrower and Lender nor to grant Lender any interest in the Property other than
that of mortgagee, beneficiary or lender.


 


Section 18.26.  Time of the Essence.  Time shall be of the essence in the
performance of all obligations of Borrower hereunder.


 


Section 18.27.  Borrower’s Obligations Absolute.  Borrower acknowledges that Lender and/or
certain Affiliates of Lender are engaged in the business of financing, owning,
operating, leasing, managing, and brokering real estate and in other business
ventures which may be viewed as adverse to or competitive with the business,
prospect, profits, operations or condition (financial or otherwise) of
Borrower.  Except as set forth to the
contrary in the Loan Documents, all sums payable by Borrower hereunder shall be
paid without notice or demand, counterclaim, set-off, deduction or defense and
without abatement, suspension, deferment, diminution or reduction, and the
obligations and liabilities of Borrower hereunder shall in no way be released,
discharged, or otherwise affected (except as expressly provided herein) by
reason of:  (a) any damage to or
destruction of or any Taking of the Property or any portion thereof or any
other Cross-collateralized Property; (b) any restriction or prevention of
or interference with any use of the Property or any portion thereof or any
other Cross-collateralized Property; (c) any title defect or encumbrance
or any eviction from the Premises or any portion thereof by title paramount or
otherwise; (d) any bankruptcy proceeding relating to Borrower, any General
Partner, or any guarantor or indemnitor, or any action taken with respect to
this Security Instrument or any other Loan Document by any trustee or receiver
of Borrower or any other Cross-collateralized Borrower or any such General
Partner, guarantor or indemnitor, or by any court, in any such


 


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proceeding; (e) any claim which Borrower has or might have against
Lender; (f) any default or failure on the part of Lender to perform or
comply with any of the terms hereof or of any other agreement with Borrower or
any other Cross-collateralized Borrower; or (g) any other occurrence
whatsoever, whether similar or dissimilar to the foregoing, whether or not
Borrower shall have notice or knowledge of any of the foregoing.


 


Section 18.28.  Publicity.  All promotional news releases, publicity or
advertising by Manager, Borrower or their respective Affiliates through any
media intended to reach the general public shall not refer to the Loan
Documents or the financing evidenced by the Loan Documents, or to Lender or to
any of its Affiliates without the prior written approval of Lender or such
Affiliate, as applicable, in each instance, such approval not to be
unreasonably withheld or delayed.  Lender
shall be authorized to provide information relating to the Property, the Loan
and matters relating thereto to rating agencies, underwriters, potential
securities investors, auditors, regulatory authorities and to any Persons which
may be entitled to such information by operation of law and may use basic
transaction information (including, without limitation, the name of Borrower,
the name and address of the Property and the Loan Amount) in press releases or
other marketing materials.


 


Section 18.29.  Securitization Opinions.  In the event the Loan is included as an asset
of a Securitization by Lender or any of its Affiliates, Borrower shall, within
fifteen (15) Business Days after Lender’s written request therefor, at Lender’s
sole cost and expense, deliver opinions in form and substance and delivered by
counsel reasonably acceptable to Lender and the Rating Agency, as may be
reasonably required by Lender and/or the Rating Agency in connection with such
securitization.  Borrower’s failure to
deliver the opinions required hereby within such fifteen (15) Business Day
period shall constitute an “Event of Default” hereunder.  Notwithstanding the foregoing, in no event
shall Borrower be required to deliver a “10b-5 opinion” in connection with any
Securitization.  Notwithstanding the
foregoing, Borrower shall, upon demand, reimburse Lender for up to $10,000 of
the cost incurred by Lender pursuant to the terms of this Section 18.29
and Lender shall only be obligated to pay reasonable costs and expenses.


 


Section 18.30.  Cooperation with Rating Agencies.  Borrower covenants and agrees that in the
event the Loan is to be included as an asset of a Securitization, Borrower
shall (a) gather any information reasonably required by each Rating Agency
in connection with such a Securitization, (b) at Lender’s request, meet
with representatives of each Rating Agency to discuss the business and
operations of the Property, and (c) cooperate with the reasonable requests
of each Rating Agency and Lender, at Borrower’s sole cost and expense with
respect to the first such request made by Lender following the Closing Date and
at Lender’s expense for any additional requests thereafter, in connection with
all of the foregoing as well as in connection with all other matters and the
preparation of any offering documents with respect thereto, including, without
limitation, entering into any amendments or modifications to this Security
Instrument or to any other Loan Document which may be requested by Lender to
conform to Rating Agency or market standards for a Securitization provided that
no such modification shall modify (a) the Class A Rate or the Class B
Rate payable under the Note, (b) the stated maturity of the Note, (c) the
amortization of principal under the Note, (d) Section 18.32 hereof, (e) any
other material economic term of the Loan or (f) any provision, the effect
of which would


 


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increase Borrower’s obligations or materially decrease Borrower’s
rights under the Loan Documents. 
Borrower acknowledges that the information provided by Borrower to
Lender may be incorporated into the offering documents for a Securitization and
to the fullest extent permitted, Borrower irrevocably waives all rights, if
any, to prohibit such disclosures including, without limitation, any right of
privacy.  Lender and each Rating Agency
shall be entitled to rely on the information supplied by, or on behalf of,
Borrower and Borrower indemnifies and holds harmless the Indemnified Parties,
their Affiliates and each Person who controls such Persons within the meaning
of Section 15 of the Securities Act or Section 20 of the Securities
Exchange Act of 1934, as same may be amended from time to time, for, from and
against any claims, demands, penalties, fines, liabilities, settlements,
damages, costs and expenses of whatever kind or nature, known or unknown,
contingent or otherwise, whether incurred or imposed within or outside the
judicial process, including, without limitation, reasonable attorneys’ fees and
disbursements that arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in such information or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated in such information or necessary
in order to make the statements in such information, or in light of the
circumstances under which they were made, not misleading.


 


Section 18.31.  Securitization Financials.  Borrower covenants and agrees that, upon
Lender’s written request therefor in connection with a Securitization, Borrower
shall, at Lender’s sole cost and expense, promptly deliver audited financial
statements and related documentation prepared by an Independent certified
public accountant (which may include up to three (3) years of historical
audited financial statements).


 


Section 18.32.  Exculpation.  Notwithstanding anything herein or in any
other Loan Document to the contrary, except as otherwise set forth in this Section 18.32
to the contrary, Lender shall not enforce the liability and obligation of
Borrower and (a) if Borrower is a partnership, its constituent partners or
any of their respective partners, (b) if Borrower is a trust, its
beneficiaries or any of their respective Partners (as hereinafter defined), (c) if
Borrower is a corporation, any of its shareholders, directors, principals, officers
or employees, or (d) if Borrower is a limited liability company, any of
its members and their respective legal, equitable and beneficial owner (the
Persons described in the foregoing clauses (a) - (d), as the case may be,
are hereinafter referred to as the “Partners”) to perform and observe
the obligations contained in this Security Instrument or any of the other Loan
Documents by any action or proceeding wherein a money judgment shall be sought
against Borrower or the Partners, except that Lender may bring a foreclosure
action, action for specific performance, or other appropriate action or
proceeding (including, without limitation, an action to obtain a deficiency
judgment) solely for the purpose of enabling Lender to realize upon (i) Borrower’s
interest in the Property and (ii) any other collateral given to Lender
under the Loan Documents (the “Default Collateral”); provided, however,
that any judgment in any such action or proceeding shall be enforceable against
Borrower and the Partners only to the extent of any such Default
Collateral.  The provisions of this Section shall
not, however, (a) impair the validity of the Debt evidenced by the Note or
in any way affect or impair the lien of this Security Instrument or any of the
other Loan Documents or the right of Lender to foreclose this Security
Instrument following the occurrence of an Event of Default; (b) impair the
right of Lender to name Borrower as a party defendant in any action or suit for
judicial foreclosure and sale under this Security Instrument; (c) affect
the validity or


 


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enforceability of the Note, this Security Instrument, or any of the
other Loan Documents, or impair the right of Lender to seek a personal judgment
against Guarantor; (d) impair the right of Lender to obtain the
appointment of a receiver; (e) impair the enforcement of the Assignment; (f) impair
the right of Lender to bring suit for monetary judgment with respect to damages
incurred by Lender resulting from fraud or intentional misrepresentation by
Borrower, or any other Person in connection with this Security Instrument, the
Note or the other Loan Documents, and the foregoing provisions shall not
modify, diminish or discharge the liability of Borrower or the Partners with
respect to same; (g) impair the right of Lender to bring suit for a
monetary judgment with respect to Borrower’s misappropriation of tenant
security deposits or Rent, and the foregoing provisions shall not modify,
diminish or discharge the liability of Borrower or the Partners with respect to
same; (h) impair the right of Lender to obtain Loss Proceeds due to Lender
pursuant to this Security Instrument; (i) impair the right of Lender to
enforce the provisions of Sections 2.02(g), 12.01, 16.01 or 16.02, inclusive of
this Security Instrument, even after repayment in full by Borrower of the Debt
or to bring suit for a monetary judgment against Borrower or the Partners with
respect to any obligation set forth in said Sections; (j) prevent or in any way
hinder Lender from exercising, or constitute a defense, or counterclaim, or
other basis for relief in respect of the exercise of, any other remedy against
any or all of the collateral securing the Note as provided in the Loan
Documents; (k) impair the right of Lender to bring suit for a monetary judgment
with respect to damages incurred by Lender resulting from any misapplication or
conversion of Loss Proceeds, and the foregoing provisions shall not modify,
diminish or discharge the liability of Borrower or the Partners with respect to
same; (l) impair the right of Lender to sue for, seek or demand a deficiency
judgment against Borrower solely for the purpose of foreclosing the Property or
any part thereof, or realizing upon the Default Collateral; provided, however,
that any such deficiency judgment referred to in this clause (l) shall be
enforceable against Borrower and the Partners only to the extent of any of the
Default Collateral; (m) impair the ability of Lender to bring suit for a
monetary judgment with respect to damages incurred by Lender resulting from arson
or waste to or of the Property or damage to the Property committed by Borrower
or its Affiliates; (n) impair the right of Lender to bring a suit for a
monetary judgment in the event of the exercise of any right or remedy under any
federal, state or local forfeiture laws resulting in the loss of the lien of
this Security Instrument, or the priority thereof, against the Property; (o) be
deemed a waiver of any right which Lender may have under Sections 506(a),
506(b), 1111(b) or any other provision of the Bankruptcy Code to file a
claim for the full amount of the Debt or to require that all collateral shall
continue to secure all of the Debt; (p) impair the right of Lender to bring
suit for monetary judgment with respect to damages incurred by Lender resulting
from any losses resulting from any claims, actions or proceedings initiated by
Borrower (or any Affiliate of Borrower) alleging that the relationship of
Borrower and Lender is that of joint venturers, partners, tenants in common,
joint tenants or any relationship other than that of debtor and creditor; (q)
impair the right of Lender to bring suit for a monetary judgment for damages
incurred by Lender in the event of a Transfer in violation of the provisions of
Article IX hereof, including, without limitation, the failure to obtain
Lender’s consent to a Transfer as, when and to the extent required thereunder;
(r) impair the right of Lender to bring suit for a monetary judgment in the
event that Borrower moves its principal place of business or its books and
records relating to the Property which are governed by the UCC, or changes its
name, its jurisdiction of organization, type of organization or other legal
structure or, if it has one, organizational identification number, without
first giving Lender thirty


 


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(30) days prior written notice or (s) impair the right of Lender to
bring suit for a monetary judgment in the event that Borrower changes its name
of otherwise does anything which would make the information set forth in any
UCC Financing Statements relating to the Property materially misleading without
giving Lender thirty (30) days prior written notice thereof.  The provisions of this Section 18.32 shall
be inapplicable to Borrower if (a) any proceeding, action, petition or
filing under the Bankruptcy Code, or any similar state or federal law now or
hereafter in effect relating to bankruptcy, reorganization or insolvency, or
the arrangement or adjustment of debts, shall be filed by, consented to or
acquiesced in by or with respect to Borrower, or if Borrower shall institute
any proceeding for its dissolution or liquidation, or shall make an assignment
for the benefit of creditors or (b) Borrower or any Affiliate contests or
in any material way interferes with, directly or indirectly (collectively, a “Contest”)
any foreclosure action, UCC sale or other material remedy exercised by Lender
upon the occurrence of any Event of Default whether by making any motion,
bringing any counterclaim, claiming any defense, seeking any injunction or
other restraint, commencing any action, or otherwise (provided that if any such
Person obtains a non-appealable order successfully asserting a Contest,
Borrower shall have no liability under this clause (b)), in which event Lender
shall have recourse against all of the assets of Borrower including, without
limitation, any right, title and interest of Borrower in and to the Property and
any partnership interests in Borrower (but excluding the other assets of such
Partners to the extent Lender would not have had recourse thereto other than in
accordance with the provisions of this Section 18.32).


 


Section 18.33.  Component Classes.  Lender, at its sole cost and expense, without
in any way limiting Lender’s other rights hereunder, in its sole and absolute
discretion, shall have the right at any time to require Borrower to modify the
Note to change the allocation of the Class A Portion and the Class B
Portion, provided that (a) the aggregate principal amount of such classes
shall equal the outstanding principal balance of the Loan immediately prior to
the creation of such “component” notes, (b) the weighted average interest
rate of all such classes shall on the date reallocated equal the interest rate
which was applicable to the Loan immediately prior to the creation of such
classes, (c) the debt service payments on all such classes shall on the
date reallocated equal the debt service payment which was due under the Loan
immediately prior to the creation of such classes and (d) the other terms
and provisions of the Note shall be identical in substance and substantially
similar in form to the Loan Documents. 
Borrower shall cooperate with all reasonable requests of Lender in order
to establish reallocated the Class A Portion and the Class B Portion
and shall execute and deliver such documents as shall reasonably be required by
Lender in connection therewith, all in form and substance reasonably
satisfactory to Lender, including, without limitation, the severance of
security documents if requested.  It
shall be an Event of Default if Borrower fails to comply with any of the terms,
covenants or conditions of this Section 18.33 after the expiration of
fifteen (15) Business Days after notice thereof.


 


Section 18.34.  Trustee’s Fees.  Borrower shall pay all costs, fees and
expenses incurred by Trustee and Trustee’s agents and counsel in connection
with the performance by Trustee of Trustee’s duties hereunder, and all such
costs, fees and expenses shall be secured by this Security Instrument.


 


Section 18.35.  Concerning the Trustee.  Trustee shall be under no duty to take any
action hereunder except as expressly required hereunder or by law, or to
perform any act which would


 


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involve Trustee in any expense or liability or to institute or defend
any suit in respect hereof, unless properly indemnified to Trustee’s reasonable
satisfaction.  Trustee, by acceptance of
this Security Instrument, covenants to perform and fulfill the trusts herein
created, being liable, however, only for gross negligence or willful
misconduct, and hereby waives any statutory fee and agrees to accept reasonable
compensation, in lieu thereof, for any services rendered by Trustee in
accordance with the terms hereof. 
Trustee may resign at any time by written instrument to that effect
delivered to Lender.  Lender may remove
Trustee at any time or from time to time and select a successor trustee.  In the event of the death, removal,
resignation, refusal to act, or inability to act of Trustee, or in its sole
discretion for any reason whatsoever Lender may, without notice and without
specifying any reasons therefor and without applying to any court, select and
appoint a successor trustee, by an instrument recorded wherever this Security
Instrument is recorded, and all powers, rights, duties and authority of
Trustee, as aforesaid, shall thereupon become vested in such successor.  Such substitute trustee shall not be required
to give bond for the faithful performance of the duties of Trustee hereunder
unless required by Lender.  The procedure
provided for in this Section 18.33 for substitution of Trustee shall be in
addition to and not in exclusion of any other provisions for substitution, by
law or otherwise.


 


Section 18.36.  Intentionally Omitted.


 


Section 18.37.  Intentionally Omitted.


 


Section 18.38.  Certain Matters Relating to Property
Located in the State of California. 
With respect to the Property which is located in the State of
California, notwithstanding anything contained herein:


 


(a)           Power
of Sale.  Lender may deliver to
Trustee a written declaration of an Event of Default and demand for sale which
requests that Trustee record and serve a written notice of default and of election
to cause the Property to be sold, and cause any or all of the Property to be
sold under the power of sale granted by this Security Instrument in the manner
hereinbelow specified in this Section 18.38.


 


(i)            Declaration of
Default; Acceptance.  Lender shall (1) deliver
to Trustee a written declaration of an Event of Default which recites facts
which demonstrate Borrower’s default, and a demand that Trustee sell the
Property, and (2) deposit the Note and this Security Instrument, if
required by law, with Trustee.  Trustee
shall accept Lender’s declaration of an Event of Default as true and as
demonstrative of Borrower’s default, and shall record and serve a written
notice of default and of election to cause the Property to be sold in the
manner required by applicable law.


 


(ii)           Rescission of
Notice of Default.  Lender may
rescind any notice of default at any time before Trustee’s sale by executing a
notice of rescission and recording it. 
The recordation of the notice will constitute a cancellation of any
prior declaration of an Event of Default and demand for sale and of any
acceleration of maturity of the Debt affected by any prior declaration or
notice of an Event of Default.  The
exercise by Lender of the right of rescission will not constitute a waiver of
any default then existing


 


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or
subsequently occurring, or impair the right of Lender to execute other
declarations of default and demand for sale, or notices of default and of
election to cause the Property to be sold, nor otherwise affect the Note or
this Security Instrument, or any of the rights, obligations or remedies of
Lender or Trustee hereunder or under applicable law.


 


(iii)          Date of Trustee’s
Sale.  If, after the expiration of
any period of time provided by applicable law, Borrower’s Event of Default has
not been cured and Borrower’s Debt has not been reinstated in the manner
required by applicable law, Trustee shall establish a date for the sale of the
Property and record and serve a notice of sale in the manner required by
applicable law.


 


(iv)          Trustee’s Sale.  If, on or before the date scheduled for the
sale of the Property, Borrower’s Event of Default has not been cured and the
Debt has not been reinstated, Trustee, without demand on Borrower, shall sell
the Property at the time and place fixed by Trustee in the notice of sale,
either as a whole or in separate parcels, and in such order as Trustee may
determine, at public auction, and to any Person, including Borrower, Lender or
Trustee.  The Property shall be sold to
the highest bidder for cash payable at the time of sale.  Notwithstanding the foregoing, instead of
paying cash for the Property, Lender may credit the amount of its auction sale
bid by the amount of the Debt, or any fraction thereof, including, without
limitation, Trustee’s cost and expenses from the sale of the Property.  Lender will be entitled to bid, at any
trustee’s or foreclosure sale of the Property, the amount of the Environmental
Damages (as hereinafter defined), any costs incurred by Lender with respect to
any Environmental Problem and interest in addition to the amount of other Debt
as a credit bid, the equivalent of cash. 
Furthermore, if a bid has been made by Lender in the amount of the Debt,
other than Debt for Environmental Damages and any costs incurred by Lender with
respect to any Environmental Problem incurred by Lender, any Debt comprised of
the Environmental Damages and any costs incurred by Lender with respect to any
Environmental Problem shall not be discharged by virtue of the full credit bid
and shall remain an obligation of Borrower to be satisfied under this Security
Instrument.


 


(v)           Delivery of Deed.  Trustee shall deliver to the purchaser of the
Property a deed which conveys title to the Property without any covenant or
warranty, express or implied.  The
recitals in the deed of any matters or facts shall be conclusive proof of their
truthfulness.


 


(vi)          Postponement of
Trustee’s Sale.  Trustee may postpone
the sale of all or any portion of the Property in accordance with California
Civil Code §2924g, by public announcement at the time and place of sale, and
from time to time thereafter Trustee may postpone such sale by public
announcement at the time fixed by the preceding postponement or as otherwise allowed
by said statute.


 


(vii)         Application of
Sale Proceeds.  The proceeds of
Trustee’s public auction of the Property shall be applied in the following
manner: (1) payment of the portion of the Debt attributable to the costs
and expenses of the sale; (2) repayment of the portion of the Debt
attributable to any sums expended or advanced by Lender (other than the


 


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Environmental
Damages and costs incurred by Lender with respect to any Environmental Problem)
under the terms of this Security Instrument, plus interest at the Default Rate;
(3) payment of all other Debt and all other obligations of Borrower
secured by this Security Instrument, in any order that Lender chooses; (4) repayment
of the portion of the Debt attributable to the Environmental Damages and costs
incurred by Lender with respect to any Environmental Problem under the terms of
this Security Instrument, plus interest at the Default Rate; and (5) the
remainder, if any, to satisfy the outstanding balance of obligations secured by
any junior encumbrances in the order of their priority, then to Borrower or
Borrower’s successor in interest.


 


(viii)        Proof of
Compliance with the Law.  If there is
a sale of the Property, or any part of it, and the execution of a deed for it,
the recital of default and of recording notice of breach and election of sale,
and of the elapsing of the required time between the recording and the
following notice, and of the sale should be made, will be conclusive proof of
the default, recording, election, elapsing of time, and the due giving of
notice, and that the sale was regularly and validly made on proper demand by
Lender.  Any deed with these recitals
will be effectual and conclusive against Borrower, its successors, and assigns,
and all other Persons.  The receipt for
the purchase money recited or in any deed executed to the purchaser will be
sufficient discharge to the purchaser from all obligations to see to the proper
application of the purchase money.


 


(b)           Acceptance
by Trustee.  Trustee accepts this
trust when this Security Instrument, duly executed and acknowledged, is made a
public record as provided by law. 
Trustee is not obligated to notify any party hereto of pending sale
under any other deed of trust or of any action or proceeding in which Borrower,
Lender or Trustee shall be a party unless brought by Trustee.


 


(c)           Rights
and Duties.  It shall be no part of
the duty of Trustee to see to any recording, filing or registration of this
Security Instrument or any other instrument in addition or supplemental hereto,
or to give any notice thereof, or to see to the payment of or be under any duty
in respect of any tax or assessment or other governmental charge which may be
levied or assessed on the Property, or any part thereof, or against Trustee, or
to see to the performance or observance by Borrower of any of the covenants and
agreements contained herein.  Trustee
shall not be responsible for the execution, acknowledgement or validity of this
Security Instrument or of any instrument in addition or supplemental hereto or
for the sufficiency of the security purported to be created hereby, and makes
no representation in respect thereof or in respect of the rights of
Lender.  Trustee shall have the right to
advice of counsel upon any matters arising hereunder and shall be fully
protected in relying as to legal matters on the advice of counsel.  Trustee shall not incur any personal
liability hereunder except for its own gross negligence or willful misconduct
and Trustee shall have the right to rely on any instrument, document or
signature authorizing or supporting any action taken or proposed to be taken by
Trustee hereunder and believed by Trustee in good faith to be genuine.


 


(d)           Subrogation
to Existing Liens; Vendor’s Lien.  To
the extent that proceeds of the Note are used to pay Debt secured by any
outstanding lien, security interest, charge or prior encumbrance against the
Property, such proceeds have been advanced by Lender at Trustee’s request, and
Lender shall be subrogated to any and all rights, security interests and liens
owned


 


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by any owner or holder of such outstanding liens, security interests,
charges or encumbrances, however remote, irrespective of whether said liens,
security interests, charges or encumbrances are released, and all of the same
are recognized as valid and subsisting and are renewed and continued and merged
herein to secure the Debt, but the terms and provisions of this Security
Instrument shall govern and control the manner and terms of enforcement of the
liens, security interests, charges and encumbrances to which Lender is
subrogated hereunder.  It is expressly
understood that, in consideration of the payment of such indebtedness by
Lender, Borrower hereby waives and releases all demands and causes of action
for offsets and payments in connection with the said indebtedness.  If all or any portion of the proceeds of the
loan evidenced by the Note or of any other secured indebtedness has been
advanced for the purpose of paying the purchase price for all or a part of the
Property, no vendor’s lien is waived; and Lender shall have, and is hereby
granted, a vendor’s lien on the Property as cumulative additional security for
the secured indebtedness.  Lender may
foreclose under this Security Instrument or under the vendor’s lien without
waiving the other or may foreclose under both.


 


(e)           Substitute
Trustee.  Trustee may resign by an
instrument in writing addressed to Lender, or Trustee may be removed at any
time with or without cause by an instrument in writing executed by Lender.  In case of the death, resignation, removal or
disqualification of Trustee, or if for any reason Lender shall deem it
desirable to appoint a substitute or successor trustee to act instead of the
herein named trustee or any substitute or successor trustee, then Lender shall
have the right and is hereby authorized and empowered to appoint a successor
trustee, or a substitute trustee, without other formality than appointment and
designation in writing executed by Lender, and the authority hereby conferred
shall extend to the appointment of other successor and substitute trustees
successively until the Debt secured hereby has been paid in full, or until the
Property is fully and finally sold hereunder. 
In the event that the Debt is owned by more than one person or entity,
the holder or holders of not less than a majority in amount of such
indebtedness shall have the right and authority to make the appointment of a
successor or substitute trustee as provided for in the preceding sentence or to
remove Trustee as provided in the first sentence of this Section 18.38(e).  Such appointment and designation by Lender,
or by the holder or holders of not less than a majority of the Debt secured hereby,
shall be full evidence of the right and authority to make the same and of all
facts therein recited.  If Lender is a
corporation or association or trust and such appointment is executed in its
behalf by an officer or trustee of such corporation or association or trust,
such appointment shall be conclusively presumed to be executed with authority
and shall be valid and sufficient without proof of any action by the board of
directors or any superior officer of the corporation or association or trust.  Upon the making of any such appointment and
designation, all of the estate and title of Trustee in the Property shall vest
in the named successor or substitute trustee, and it shall thereupon succeed to
and shall hold, possess and execute, all of the rights, powers, privileges,
immunities and duties herein conferred upon Trustee; but, nevertheless, upon
the written request of Lender or of the successor or substitute trustee, the
trustee ceasing to act shall execute and deliver an instrument transferring to
such successor or substitute trustee all of the estate and title in the
Property of the trustee so ceasing to act, together with all the rights,
powers, privileges, immunities and duties herein conferred upon the Trustee,
and shall duly assign, transfer and deliver any of the properties and moneys
held by said trustee hereunder to said successor or substitute trustee.  All references herein to “Trustee” shall be
deemed to refer to


 


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Trustee (including any successor or substitute appointed and designated
as herein provided) from time to time acting hereunder.


 


(f)            No
Liability of Trustee.  TRUSTEE SHALL
NOT BE LIABLE FOR ANY ERROR OF JUDGMENT OR ACT DONE BY TRUSTEE IN GOOD FAITH,
OR BE OTHERWISE RESPONSIBLE OR ACCOUNTABLE UNDER ANY CIRCUMSTANCES WHATSOEVER
(INCLUDING TRUSTEE’S NEGLIGENCE), EXCEPT FOR TRUSTEE’S GROSS NEGLIGENCE OR
MISCONDUCT.  Trustee shall have the right
to rely on any instrument, document or signature authorizing or supporting any
action taken or proposed to be taken by it hereunder, believed by it in good
faith to be genuine.  All moneys received
by Trustee shall, until used or applied as herein provided, be held in trust
for the purposes for which they were received, but need not be segregated in
any manner from any other moneys (except to the extent required by law), and
Trustee shall be under no liability for interest on any moneys received by it
hereunder.  Trustee hereby ratifies and
confirms any and all acts which the herein-named Trustee or its successor or
successors, substitute or substitutes, in this trust, shall do lawfully by
virtue hereof.


 


(g)           Judgment
on Environmental Provision.


 


(i)            Judgment Sought.  Pursuant to California Code of Civil
Procedure §736, Lender may bring an action (as such term is defined in
California Code of Civil Procedure §22) for breach of contract against Borrower
for breach of any provision contained in Article XVI hereof (the “Environmental
Provision”), for the recovery of the Environmental Damages listed in Section (ii) hereof,
and for the enforcement of the Environmental Provision, whether the
Environmental Provision is or was contained in or secured by this Security
Instrument and whether or not this Security Instrument has been discharged,
reconveyed or foreclosed upon. 
Notwithstanding the foregoing, no injunction for the enforcement of an
Environmental Provision may be issued after (x) satisfaction of the Debt or (y)
transfer of Borrower’s right, title and interest in and to the “Real Property
Security” (as such term is defined in California Code of Civil Procedure
§736(f)(4)) in a bona fide transaction to an unaffiliated third party for fair
value.


 


(ii)           Damages.  The damages that Lender may recover pursuant
to Section (i) above shall be limited to reimbursement or
indemnification of the following (collectively, the “Environmental Damages”):
(w) if not pursuant to an order of any Governmental Authority relating to the
cleanup, remediation, or other response action required by any applicable rule promulgated
by a Governmental Authority, those costs relating to a reasonable and good
faith cleanup, remediation, or other response action concerning a Release (such
term shall have the meaning ascribed to it under California Civil Code §2929.5
and under California Civil Code of Procedure §726.5 and §736) or threatened
release of Hazardous Materials which is anticipated by the Environmental
Provision; (x) if pursuant to an order of any Governmental Authority which is
anticipated by the Environmental Provision, all amounts reasonably advanced in
good faith by Lender in connection therewith, provided that Lender negotiated,
or attempted to negotiate, in good faith to minimize the amounts it was
required to advance under the order; (y) indemnification against all liabilities
of Lender to any third party relating to the breach


 


121





















 


and
not arising from acts, omissions or other conduct which occur after Borrower is
no longer an owner or operator of the “Real Property Security” in accordance
with the standards set forth in California Code of Civil Procedure §726.5(d) (for
the purposes of this Section (ii), the term “owner or operator” means
those persons described in §101(20)(A) of CERCLA); and (z) attorneys’ fees
and costs incurred by Lender relating to the breach.  Notwithstanding the foregoing, the
Environmental Damages recoverable by Lender shall not include (w) any part of
the principal amount or accrued interest of the Debt, except for any amounts
advanced by Lender to cure or mitigate the breach of any Environmental
Provision that is added to the principal amount, and contractual interest
thereon, or (x) amounts which relate to a Release which was knowingly
permitted, caused or contributed to by Lender or any affiliate or agent of
Lender.


 


(h)           Waiver
of Lien.  Pursuant to the terms of
California Code of Civil Procedure §726.5, Lender may (i) waive its lien
against (A) any parcel of “Real Property Security” that is “environmentally
impaired” (as such term is defined in California Code of Civil Procedure
§726.5(e)(3)), or is an “affected parcel” (as such term is defined in
California Code Civil Procedure §726.5(e)(1)), and (B) all or any portion
of the personal property attached to such parcels and (ii) exercise (A) the
rights and remedies of an unsecured creditor including reduction of its claim
against Borrower to judgment and (B) any other rights and remedies
permitted by law.  As between Lender and
Borrower, for purposes of California Code of Civil Procedure §726.5, Borrower
shall have the burden of proving that (1) the Release or threatened
Release was not (x) knowingly or negligently caused or contributed to, or (y)
knowingly or willfully permitted or acquiesced to, by Borrower or any related
party (as such term is defined in California Code of Civil Procedure
§726.5(e)(6)), or any affiliate or agent of Borrower or any related party, and (2) in
conjunction with the making, renewal or modification of the Debt, (x) neither
Borrower, any related party nor any affiliate or agent of Borrower or any
related party had actual knowledge or notice of the Release or threatened
Release of any Hazardous Materials, or (y) if such a person had knowledge or
notice of the Release or threatened Release, Borrower made written disclosure thereof
to Lender after Lender’s written request for information concerning the
environmental condition of the Real Property Security, or (z) Lender otherwise
obtained actual knowledge thereof prior to the making, renewal or modification
of the Debt.


 


(i)            Reconveyance
Upon Payment of Debt.  In the event
that Borrower shall cause to be paid the entire Debt and perform in full all of
its obligations under the Loan Documents, Lender shall release and shall cause
Trustee to release the Property from the lien of this Security Instrument and
to reconvey (without warranty by or recourse against Trustee or Lender) the
Property to Borrower.  Upon Trustee’s
receipt of Lender’s request for reconveyance, Trustee shall reconvey, without
warranty, the Property or that portion held. 
When the Property has been fully reconveyed, the last reconveyance will
operate as a reassignment of all future Rents to the Person legally entitled.


 


(j)            Environmental
Addendum.


 


(i)            Lender shall have
the right, but not the obligation, to enter upon the Property, from time to
time upon prior reasonable notice, and in its sole and absolute discretion, to
conduct inspections of the Property and the activities conducted thereon to


 


122





















 


determine
the compliance with all Environmental Statutes, the presence of Hazardous
Materials and the existence of any potential damages as a result of the
condition of the Property.  In
furtherance thereof, Borrower hereby grants to Lender and its agents, employees
and qualified consultants and contractors, the right to enter upon the Property
and to perform such tests on the Property (including invasive tests) as are
reasonably necessary.  Lender shall
conduct such inspections and tests at reasonable times, shall use its best
efforts to minimize interference with the operation of the Property and agrees
to restore the condition of the Property, but Lender shall not be liable for
any interference caused thereby unless due to the gross negligence or willful
misconduct or omission of Lender.  In
furtherance of the purposes above, without limitation of any of Lender’s other
rights, Lender may: (x) obtain a court order to enforce Lender’s right to enter
and inspect the Property under California Civil Code §2929.5, to which the decision
of Lender as to whether there exists any Hazardous Materials on or about the
Property in violation of any Environmental Statutes, or a breach by Borrower of
any environmental provision of this Security Instrument or any of the other
Loan Documents, will be deemed reasonable and conclusive as between the
parties; and (y) have a receiver be appointed under California Code of Civil
Procedure §564 to enforce Lender’s right to enter and inspect the Property for
the purpose set forth above.


 


(ii)           Borrower and Lender
agree that: (x) this paragraph is intended as Lender’s written request for
information and Borrower’s written response concerning the environmental
condition of the Property as provided in California Code of Civil Procedure
§726.5; and (y) each representation, warranty or covenant, or indemnity made by
Borrower in this Security Instrument or in the other Loan Documents that
relates to the environmental condition of the Property is intended by Borrower
and Lender to be an “environmental provision” for the purposes of California
Code of Civil Procedure §736 and will survive the payment of the Debt and the
termination or expiration of this Security Instrument and will not be affected
by Lender’s acquisition of any interest in the Property, whether by full credit
bid at foreclosure, deed in lieu of that, or otherwise.  If there is any transfer of any portion of
Borrower’s interest in the Property, any successor-in-interest to Borrower
agrees by its succession to that interest that the written request made
pursuant to this paragraph will be deemed remade to the successor-in-interest
without any further or additional action on the part of Lender and that by
assuming the Debt secured by this Security Instrument or by accepting the
interest of Borrower subject to the lien of this Security Instrument, the
successor remakes each of the representations and warranties in this Security
Instrument and agrees to be bound by each covenant in this Security Instrument,
including but not limited to any indemnity provision.


 


(k)           Financing
Statement.  This Security Instrument
shall also constitute a financing statement pursuant to UCC §9502, and shall be
filed as a fixture filing in the Official Records of the County Recorder of the
County in which the Property is located and covers goods which are or are to
become fixtures on the Property.


 


(l)            Intentionally
Omitted.


 


123





















 


(m)          Waiver
of Statutory Regulation.  By
initialing below, Borrower waives any right to prepay the Note, in whole or in
part, without a Prepayment Charge (as described in Section 13.03 hereof).
Borrower acknowledges that prepayment of the Note may result in Lender’s
incurring additional losses, costs, expenses, and liabilities, including, but
not limited to, lost revenue and lost profits. Borrower therefore agrees to pay
any prepayment charges on the terms and conditions provided herein, including,
without limitation, upon any Event of Default attributable to the transfer or
conveyance of any right, title, or interest in the Property.


 


BORROWER
AGREES THAT LENDER’S WILLINGNESS TO MAKE THE LOAN AT THE INTEREST RATE FOR THE
TERM SET FORTH HEREIN CONSTITUTES ADEQUATE CONSIDERATION, GIVEN INDIVIDUAL
WEIGHT BY BORROWER, FOR THIS WAIVER AND AGREEMENT.


 


	
   

  	
  /s/ Marc S. Gordon

  
	
   

  	
  [Borrower’s Initials]

  



 


(n)           Waivers.


 


(i)            Borrower waives all
benefits and defenses it may have under California Civil Code Section 2809
and agrees that Borrower’s liability pursuant to the Loan Documents may be
larger in amount and more burdensome than that of the Cross-collateralized
Borrowers.  Borrower’s liability under
this Security Instrument shall continue until all sums due under the Loan
Documents have been paid in full and shall not be limited or affected in any
way by any impairment or any diminution or loss of value of any security or
collateral for the obligations under the Loan Documents, from whatever cause,
including, without limitation, Lender’s failure to perfect a security interest
in any such security or collateral or any disability or other defense of the
Cross-collateralized Borrowers, any guarantor, other surety, or any pledgor of
collateral for the obligations under the Loan Documents or any other person
related to the Loan Documents.


 


(ii)           Borrower agrees
that its liability under, and the enforceability of, this Security Instrument
are absolute and are not contingent upon the genuineness, validity or
enforceability of the Loan Documents or the availability of any defense to the
Cross-collateralized Borrowers, any guarantor, other surety, other pledgor of
collateral for the obligations under the Loan Documents or any other person
related to the obligations under the Loan Documents.  Borrower waives all benefits and defenses it
may have under California Civil Code Section 2810 and agrees that Borrower
shall be liable even if the Cross-collateralized Borrowers, any guarantor,
other surety, other pledgor of collateral or any other person related to the
obligations under the Loan Documents had no liability at the time of execution of
the Loan Documents or later ceases to be liable.


 


(iii)          Borrower waives its
rights under California Civil Code Section 2815 and agrees that by doing
so Borrower has no right to revoke this Security Instrument until all
obligations under the Loan Documents have been fully satisfied.


 


124





















 


(iv)          Borrower waives its
rights under California Civil Code Section 2819 and agrees that by doing
so Borrower’s liability and the enforceability of this Security Instrument
shall continue even if Lender alters any term or obligation under the Loan
Documents in any respect.


 


(v)           Borrower waives its
rights under California Civil Code Section 2839 and agrees that by doing
so (A) its obligations under this Security Instrument shall not be deemed
satisfied by a mere offer of payment by the Cross-collateralized Borrowers, or
any other person, of the principal obligations under the Loan Documents, and (B) Borrower’s
liability under and the enforceability of this Security Instrument shall
continue until all obligations under the Loan Documents have been fully
satisfied.


 


(vi)          Borrower waives all
benefits and defenses it may have under California Civil Code Sections 2845,
2849 and 2850, including, without limitation, the right to require Lender to (A) proceed
against the Cross-collateralized Borrowers, any guarantor, other surety, other
pledgor of collateral for the obligations under the Loan Documents or any other
person related to the obligations under the Loan Documents, (B) proceed against
or exhaust any other security or collateral Lender may hold, or (C) pursue
any other right or remedy for Borrower’s benefit, and agree that Lender may
foreclose against all or a part of any security Lender may hold without taking
any action against the Cross-collateralized Borrowers, any guarantor, other
surety, other pledgor of collateral for the obligations under the Loan
Documents or any other person related to the obligations outstanding under the
Loan Documents, and without proceeding against or exhausting any security or
collateral Lender holds.


 


(vii)         Borrower waives its
rights under California Civil Code Sections 2899 and 3433 and agrees that by
doing so Lender has no obligation regarding the order in which Lender exercises
its remedies against any collateral security encumbered pursuant to any of the
Loan Documents.


 


(viii)        Borrower waives
diligence and all demands, protests, presentments and notices of every kind or
nature, including notices of protest, dishonor, nonpayment, acceptance of this
Security Instrument and creation, renewal, extension, modification or accrual
of any of the obligations under the Loan Documents.  Borrower also waives the right to plead all
statutes of limitation as a defense to Borrower’s liability under, or the enforceability
of, this Security Instrument.


 


(ix)           Borrower waives any
rights or benefits it may have by reason of California Code of Civil Procedure Section 580a
which could limit the amount which Lender could recover in a foreclosure of the
Property to the difference between the amount owing under the Loan Documents
and the fair value of the Property or other real property sold at a nonjudicial
foreclosure sale or sales of any other real property held by Lender as security
for the obligations under the Loan Documents.


 


(x)            Borrower waives all
rights and defenses arising out of an election of remedies by Lender, even
though that election of remedies, such as a nonjudicial


 


125





















 


foreclosure
of the Property or any other real property given to secure the obligations
under the Loan Documents, destroys Borrower’s rights of subrogation and
reimbursement against the Cross-collateralized Borrowers by the operation of Section 580d
of the California Code of Civil Procedure or otherwise.


 


(o)           Borrower
Informed of the Cross-collateralized Borrowers’ Condition.  Borrower acknowledges that it has had an
opportunity to review the Loan Documents, the value of the security for the
obligations under the Loan Documents and the other Cross-collateralized
Borrowers’ financial condition and ability to satisfy the obligations under the
Loan Documents to which any of the other Cross-collateralized Borrowers is a
party.  Borrower agrees to keep itself
fully informed of all aspects of the other Cross-collateralized Borrowers’
financial condition and the performance of the other Cross-collateralized
Borrowers’ obligations to Lender and that Lender has no duty to disclose to
Borrower any information pertaining to the other Cross-collateralized Borrowers
or any security for the obligations under the Loan Documents.


 


(p)           Subrogation,
Reimbursement and Contribution Rights. 
Borrower agrees that its rights of subrogation and reimbursement against
the other Cross-collateralized Borrowers, their rights of subrogation against
any other collateral or security for the obligations under the Loan Documents
or the pledgor of such collateral or security and its rights of contribution
from any guarantor, other surety or other pledgor of collateral shall be subordinate
to Lender’s rights against the other Cross-collateralized Borrowers, in such
collateral or security and against any such guarantor, surety or pledgor.  Borrower shall have no such rights of
subrogation, reimbursement or contribution until all amounts due under the Loan
Documents have been paid in full and Lender has released, transferred or
disposed of all of its rights in any collateral or security.  Borrower waives its rights under California
Civil Code Sections 2847, 2848 and 2849 to the extent inconsistent with the
foregoing.


 


(q)           Confirmation
of Waivers; the Cross-collateralized Borrowers’ Obligations are Secured by Real
Property.


 


(i)            Borrower waives all
rights and defenses that Borrower may have because the Cross-collateralized
Borrowers’ obligations are secured by real property.  This means, among other things:


 


(A)          Lender
may collect from Borrower without first foreclosing on any real or personal
property collateral for the Cross-collateralized Borrowers’ obligations pledged
by the Cross-collateralized Borrowers or any other person; and


 


(B)           if
Lender forecloses on any real property collateral pledged by the
Cross-collateralized Borrowers or any other person:


 


(1)           the
amount of the Cross-collateralized Borrowers’ obligations outstanding may be
reduced only by the price for which the real property collateral is sold at the
foreclosure sale, even if the real property collateral is worth more than the
sale price; and


 


126





















 


(2)           Lender
may collect from Borrower even if Lender, by foreclosing on the real property
collateral, has destroyed any right Borrower may have to collect from the
Cross-collateralized Borrowers.


 


(ii)           These are
unconditional and irrevocable waivers of any rights and defenses Borrower may
have because the Cross-collateralized Borrowers’ debt is secured by real
property.  These rights and defenses
include, but are not limited to, any rights or defenses based upon Section 580a,
580b, 580d or 726 of the California Code of Civil Procedure.


 


(r)            Fixture
Filing.  The personal property in
which Lender has a security interest includes goods which are or shall become
fixtures on the Property.  This Security
Instrument is intended to serve as a fixture filing pursuant to the terms of
the California Uniform Commercial Code. 
This filing shall remain in effect as a fixture filing until this
Security Instrument is released or otherwise satisfied of record or its
effectiveness otherwise terminates with respect to the Property.  In that regard, the following information is
provided:


 


	
  Name of Debtor:

  	
   

  	
  Mondrian Holdings LLC

  
	
   

  	
   

  	
   

  
	
  Address of Debtor:

  	
   

  	
  See Section 11.01 above.

  
	
   

  	
   

  	
   

  
	
  Name of Secured Party:

  	
   

  	
  Wachovia Bank, National Association

  
	
   

  	
   

  	
   

  
	
  Address of Secured Party:

  	
   

  	
  See Section 11.01 above.

  



 


Section 18.39.  Assignment Upon Repayment.  At Borrower’s request, and upon (a) Borrower’s
prepayment of the Debt in full, whether by prepayment or otherwise and (b) payment
by Borrower of Lender’s reasonable counsel fees and disbursements and other
reasonable costs, if any, and provided Borrower (a) refinances the Loan
through any institution other than Lender, or (b) sells any of the
Premises, and an institution other than Lender is involved in the financing of
such sale, Lender shall deliver an assignment of the Note, this Security
Instrument to Borrower’s designee without recourse, representation or warranty,
together with the Note (or an affidavit of lost note) duly endorsed by Lender
to Borrower’s designee.


 


*********


 


127





















 


IN WITNESS
WHEREOF, Borrower has duly executed this Security Instrument the day and year
first above written.


 


	
  Borrower’s Organizational Identification

  	
  MONDRIAN HOLDINGS LLC, Borrower

  
	
  Number:

  	
  13-3880841

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Marc S. 
  Gordon

  	
  ,

  
	
   

  	
   

  	
  Name: Marc S. Gordon

  
	
   

  	
   

  	
  Title: Authorized Signatory

  
						



 


 


The undersigned SPE Pledgors hereby agree and consent to the terms
hereof.


 


MONDRIAN
PLEDGOR LLC, a Delaware


limited
liability company, SPE Pledgor


 


 


	
  By:

  	
  /s/ Marc S. Gordon

  	
   

  
	
   

  	
  Name: Marc S. Gordon

  	
   

  
	
   

  	
  Title: Authorized Signatory

  	
   

  



 


 


8440 LLC, a
California limited


liability
company, SPE Pledgor


 


 


	
  By:

  	
  /s/ Marc S. Gordon

  	
   

  
	
   

  	
  Name: Marc S. Gordon

  	
   

  
	
   

  	
  Title: Authorized Signatory

  	
   

  



 


128





















 


ACKNOWLEDGMENT


 


	
  STATE OF NEW YORK

  	
  )

  
	
   

  	
  )ss.:

  
	
  COUNTY OF NEW YORK

  	
  )

  



 


 


On the 29 day of June in the year 2005 before me, the
undersigned, personally appeared Marc S. Gordon, personally known to me
or proved to me on the basis of satisfactory evidence to be the individual(s)
whose name(s) is (are) subscribed to the within instrument and acknowledged to
me that he/she/they executed the same in his/her/their capacity(ies), and that
by his/her/their signature(s) on the instrument, the individual(s), or the
person upon behalf of which the individual(s) acted, executed the instrument.


 


 


	
  /s/ Cynthia Margareten

  	
   

  
	
  Notary Public

  
	
  Cynthia Margareten

  
	
  Notary Public, State of New York

  
	
  No. 01MA4884255

  
	
  Qualified in Nassau County

  
	
  Commission Expires January 26, 2007

  



 





















 


EXHIBIT A


 


Legal Description of Premises


 





















 


EXHIBIT B


 


SUMMARY OF
RESERVES**


 


	
  Reserve Items

  	
   

  	
  Initial Deposit Amount

  	
   

  	
  Monthly Installment

  Amount

  	
   

  
	
  Basic
  Carrying Costs

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  •Taxes

  	
   

  	
  $

  	
  1,061,111.62

  	
   

  	
  $

  	
  440,073.71

  	
   

  
	
  •Insurance Premiums

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  142,899.94

  	
   

  
	
  •Ground Rents

  	
   

  	
  $

  	
  0

  	
   

  	
  $

  	
  65,965.00

  	
   

  
	
  SAOT Deposit

  	
   

  	
  $

  	
  0

  	
   

  	
  TBD

  	
   

  
	
  Recurring
  Replacement Reserve

  	
   

  	
  $

  	
  2,518,942.63

  	
   

  	
  $

  	
  487,238.00*

  	
   

  
	
  Initial
  Engineering Deposits

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  •Immediate Repairs

  	
   

  	
  $

  	
  0

  	
   

  	
  Not Applicable

  	
   

  
	
  •Environmental Remediation

  	
   

  	
  $

  	
  0

  	
   

  	
  Not Applicable

  	
   

  
	
  Capex Trap
  Escrow

  	
   

  	
  $

  	
  10,000,000.00

  	
   

  	
   

  	
   

  



 










*              This figure is only
applicable during the first (1st) year of the Loan, after which such
amount shall adjust in accordance with the definition of “Recurring Replacement
Reserve”.


 


**           The sums set forth are
an aggregate number with respect to all of the Cross-collateralized Properties.


 





















 


EXHIBIT C


 


	
   

  	
  Property:

  	
   

  
	
   

  	
  Location:

  	
   

  
	
  Cash Flow
  Statement for Month of:

  	
   

  	
   

  	
  Year:

  	
   

  
					



 


	
   

  	
   

  	
  Current

  Month

  	
   

  	
  Year to

  Date

  	
   

  
	
  REVENUE

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Net Rental
  Revenue

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Other
  Revenue

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Effective Gross Income

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  OPERATING
  EXPENSES

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Common Area
  Maintenance

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Payroll

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Administration

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Leasing

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Service

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Utilities

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Clean &
  Decorate

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Repairs &
  Maintenance

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Taxes

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Insurance

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Management
  Fees

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Other

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total Operating Expenses

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Net Operating Income

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  RECURRING
  EXPENSES

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  To Include
  Expenses for: Carpet Replacement, Appliance Replacement, HVAC/Water Heater
  Replacement; Miniblinds/Drapes/Ceiling Fans:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  NON-RECURRING
  EXPENSES

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  To Include
  Capital Expenses for: Playground, Major Signage, Lawns/Trees/Shrubs,
  Paving/Parking, Roof Replacement, Carpentry/Siding/Balconies, Exterior Paint,
  Major Concrete/Sidewalks, Foundations, Major Exterior, Boiler Replacement,
  Major HVAC Replacement, Plumbing Replace, Electrical Replace, Other Major,
  Fire & Storm, Ins. Loss Recovery:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Net Cash Flow

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


	
  Certified By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
	
  Management Company:

  	
   

  	
   

  	
   

  



 





















 


EXHIBIT D


 


Required Engineering Work


 


NONE


 





















 


EXHIBIT E


 


Intentionally Omitted.


 





















 


EXHIBIT F


 


Initial Allocated Loan Amount
and


Cross-collateralized Properties


 


	
  Cross-collateralized Property

  	
   

  	
  Initial Allocated Loan Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Morgans
  Hotel

  	
   

  	
  $

  	
  34,306,034.48

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Royalton Hotel

  	
   

  	
  $

  	
  49,417,025.86

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Hudson Hotel

  	
   

  	
  $

  	
  186,232,758.62

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Delano Hotel

  	
   

  	
  $

  	
  107,410,560.34

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Mondrian
  Hotel

  	
   

  	
  $

  	
  96,383,620.69

  	
   

  



 





















 


EXHIBIT G


 


CREDIT CARD
PAYMENT DIRECTION LETTER


 


(For use with Chase Merchant
Services, L.L.C. and Chase Manhattan Bank)


 


June        , 2005


 


Chase Merchant Services, L.L.C.


3975 Northwest 120th Avenue


Coral Springs, Florida 33065


 


Re:                                                                               
(the “Company”)


 


Gentlemen:


 


Chase Merchant Services,
L.L.C. and Chase
Manhattan Bank (collectively, the “Processor”) have entered into
arrangements pursuant to which Processor acts as credit card processing service
provider with respect to certain credit card and debit card sales by the
Company at, among other properties, the                                  Hotel
located at                                  
(the “Property”) and makes payments to the Company in respect of such sales as
set forth in the Merchant Services Bankcard Agreement between Processor and the
Company (and together with any replacement agreement thereto, referred to
herein as the “Card Processing Agreement”).


 


Please be advised that certain affiliates of
the Company, including the owner of the Property, have entered or are about to enter
into financing arrangements with Wachovia
Bank, National Association (the “Lender”) pursuant to which Lender
may from time to time make loans and advances and provide other financial
accommodations to certain affiliates of the Company, including the owner of the
Property, secured by, among other things, all of the Property owner’s right,
title and interest in and to all deposit and other bank accounts and proceeds
of the foregoing, including all amounts at any time payable by Processor to the
Company, with respect to the Property pursuant to the Card Processing Agreement
or otherwise.


 


Notwithstanding anything to the contrary
contained in the Card Processing Agreement or any prior instructions to
Processor, unless and until Processor receives written instructions from Lender
to the contrary, effective as of the day after the date of Processor’s written
acknowledgment below all amounts payable by Processor to the Company pursuant
to the Card Processing Agreement or otherwise shall be sent by federal funds
wire transfer or electronic depository transfer to the following bank account
of the Lender:


 





















 


Wachovia Bank, National Association


ABA # 053-000-219


Acct
Name-                 


Acct #                       


Ref Loan # when available


 


MERCHANT


 


In the event Processor at any time receives
any other instructions from Lender with respect to the disposition of amounts
payable by or through Processor to the Company, which relate to the Property,
pursuant to the Card Processing Agreement or otherwise, Processor is hereby
irrevocably authorized and directed to follow such instructions, without
inquiry as to Lender’s right or authority to give such instructions. Company
and Lender acknowledge that (a) any instructions from Lender to Processor
to change the account to which funds must be sent by a vice president or other
officer of Lender to Chase Merchant Services, L.L.C., 3975 Northwest 120th
Avenue, Coral Springs, Florida 33065, Attention: Vice President - Risk
Management; (b) such instructions shall only provide for funds to be sent
to a single deposit account of Lender, in a manner with respect to the nature
of the funds transfer and at times consistent with the payment practices of
Processor as then in effect, unless otherwise agreed by Processor. The Company agrees
to hold harmless Processor for any action taken by Processor in accordance with
the terms of this letter and the Card Processing Agreement; and Lender shall
complete such account change forms as Processor may require.  The Company hereby acknowledges that the
account set forth above is owned by the Company but is under the control of
Lender.


 


Lender and the Company hereby confirm and
agree as follows: (i) the Card Processing Agreement is in full force and
effect, and (ii) this Assignment does not prohibit or limit any rights
Processor possesses under the Card Processing Agreement, including but not
limited to Processor’s right to debit, offset or charge back any amounts owing
to Processor under the Card Processing Agreement or any replacement or renewal
thereof, against funds sent to or to be sent to the above referenced bank
account.


 


This Irrevocable Payment Instruction cannot
be changed, modified, or terminated, except by written agreement signed by
Lender, Company, and Processor. This Irrevocable Payment Instruction supercedes and replaces any
prior instructions provided to Processor to date. Processor
agrees to use reasonable efforts to ensure payment instructions are followed,
but Lender and Company herein acknowledge that Processor shall incur no
liability for changes or modifications wherein Processor has received
instructions from Company or Lender to change the deposit account.


 


ii





















 


Please acknowledge your receipt of, and
agreement to, the foregoing by signing in the space provided below.


 


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
   

  	
  , a

  
	
   

  	
   

  	
   limited liability company

  
	
   

  	
  (the “Company”)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  (Duly
  Authorized)

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  Date:

  	
   

  
							



 


iii





















 


	
  ACKNOWLEDGED AND AGREED:

  	
   

  
	
   

  	
   

  
	
  Wachovia Bank, National Association

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  (Duly
  Authorized)

  	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
  Date:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  ACKNOWLEDGED AND AGREED:

  	
   

  
	
   

  	
   

  
	
  CHASE MERCHANT SERVICES, L.L.C.

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  (Duly
  Authorized)

  	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
  Date:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  ACKNOWLEDGED AND AGREED:

  	
   

  
	
   

  	
   

  
	
  CHASE MANHATTAN BANK

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  (Duly
  Authorized)

  	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
  Date:

  	
   

  	
   

  
					



 


iv





















 


(For use with American Express)


 


TO BE COMPLETED BY AUTHORIZED REPRESENTATIVES
OF THE MERCHANT AND THE LENDING INSTITUTION


 


June    ,
2005


 


General Counsel’s Office


American Express Travel Related Services Company, Inc.


3 World Financial Center


200 Vesey Street


New York, NY 10285-4906


Attn: Establishment Services Practice Group


 


RE:          FINANCING
AGREEMENT – ASSIGNMENT OF CREDIT CARD RECEIVABLES


 


Dear Sir/Madam:


 


                            
(the “Company”) has recently entered into a new financing facility with
Wachovia Bank, National Association (the “Assignee”).  In accordance with the terms of that loan facility, the
Company granted to Assignee a security interest in Company’s inventory,
accounts and substantially all of Company’s tangible and intangible personal
property, including, without limitation, all rights of the Company to receive payments
in respect of proceeds of American Express card sales in the Company’s stores
pursuant to that certain American ExpressÒ Card Acceptance Agreement between American
Express Travel Related Services Company, Inc. (“American Express”) and the
Company in effect as of the date hereof (the “Agreement”).


 


Pursuant to the loan facility, the
Company is obligated to arrange for the proceeds of American Express card sales
in the Company’s stores to be routed by American Express to a new cash
concentration account under the control of the Assignee, as opposed to the
account routing instructions that are presently in place.  Accordingly, by this letter, the Company
instructs American Express to immediately begin routing all proceeds of
American Express card sales in the Company’s stores (under Service
Establishment No.                                 )
to the new Company account (“Account”) set forth below.


 


	
  Account No:

  	
   

  	
                                           

  
	
  Account
  Name:

  	
   

  	
  Wachovia
  Bank, National Association, as

  beneficiary/mortgagee of                          ,
  a              

  limited liability company

  
	
  ABA Routing
  No.:

  	
   

  	
  053-000-219

  
	
  Bank Name:

  	
   

  	
  Wachovia
  Bank, National Association

  
	
  Contact:

  	
   

  	
  David Tucker

  
	
   

  	
   

  	
  (704)
  593-7735

  



 


v





















 


All
payments under the Agreement should continue to be made to the Account and to
no other account unless and until you receive express prior written notification from an officer of
Assignee.  Such notification will only be
valid if made in writing and sent, via first-class mail or overnight delivery,
to American Express at the following address:


 


General Counsel’s Office


American Express Travel Related Services
Company, Inc.


3 World Financial Center


200 Vesey Street


New York, NY 10285-4906


Attn: Establishment Services Practice Group


 


The Company acknowledges that American Express retains all of its
rights under the Agreement, including, but not limited to, American Express’
rights to Full Recourse, as such term is defined in the Agreement.  Furthermore, the Company acknowledges and
agrees that American Express is not required to alter its regular course of
business with respect to acceptance of payment instructions from merchants and
that American Express will have no liability if it acts in accordance with
payment instructions received from an employee or agent of the Company acting
with apparent authority.


 


The Company will indemnify and hold harmless American Express from any
and all liabilities, claims, demands, actions or judgments, including but not
limited to attorneys’ fees, arising out of or resulting from the acts or
omissions of the Company, its employees, officers or agents in connection with
this letter agreement.


 


The Company appreciates American Express’ anticipated cooperation and
assistance in effectuating this request. 
Should you have any questions concerning this matter, please do not
hesitate to contact us at your convenience, or feel free to contact the
Assignee directly at Wachovia Bank, National Association, Commercial Real
Estate National Association, 8739 Research Drive URP4, NC 175, Charlotte, North
Carolina 28262, Attention: Portfolio Management, Telecopier (704) 715-0036.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name: Marc S. Gordon

  
	
   

  	
   

  	
  Title: Authorized Signatory

  
					



 


vi





















 


	
   

  	
  Date: June    , 2005

  



 


 


ACCEPTED AND AGREED:


 


WACHOVIA BANK, NATIONAL ASSOCIATION


 


 


	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
  Name

  	
   

  	
   

  
	
   

  	
   

  
	
  Title

  	
   

  	
   

  
	
   

  	
   

  
	
  Date

  	
   

  	
   

  
					



 


viii





















 


EXHIBIT H


 


CERTAIN DEBT SERVICE
COVERAGE REQUIREMENTS


 


	
  Period

  	
   

  	
  Debt Service Coverage

  
	
   

  	
   

  	
   

  
	
  1st four calendar quarters

  	
   

  	
  1.05 : 1.00

  
	
   

  	
   

  	
   

  
	
  Next four calendar quarters

  	
   

  	
  1.09 : 1.00

  
	
   

  	
   

  	
   

  
	
  Next two calendar quarters

  	
   

  	
  1.11 : 1.00

  
	
   

  	
   

  	
   

  
	
  Next two calendar quarters

  	
   

  	
  1.13 : 1.00

  
	
   

  	
   

  	
   

  
	
  Thereafter

  	
   

  	
  1.15 : 1.00

  



 





















 


EXHIBIT I


 


CERTAIN
DEFINITIONS


 


“Food and Beverage Lessee/Operator” shall mean, collectively, 8440
LLC, a California limited liability company and Sunset Restaurants LLC, a
California limited liability company.


 


“SPE Pledgor” shall mean, collectively, Mondrian Pledgor LLC, a
Delaware limited liability company, and 8440 LLC, California limited liability
company.


 





















 


EXHIBITS


 


	
  EXHIBIT A

  	
   

  	
  Legal
  Description of Premises

  
	
  EXHIBIT B

  	
   

  	
  Summary Of
  Reserves

  
	
  EXHIBIT C

  	
   

  	
  Cash Flow
  Statement

  
	
  EXHIBIT D

  	
   

  	
  Required
  Engineering Work

  
	
  EXHIBIT E

  	
   

  	
  Intentionally
  Omitted

  
	
  EXHIBIT F

  	
   

  	
  Initial
  Allocated Loan Amount and Cross-collateralized Properties

  
	
  EXHIBIT G

  	
   

  	
  Credit Card
  Payment Direction Letter

  
	
  EXHIBIT H

  	
   

  	
  Certain Debt
  Service Coverage Requirements

  
	
  EXHIBIT I

  	
   

  	
  Certain
  Definitions