exv10w33w4w3



 





Exhibit 10.33.4.3

(Floating Rate Pool)




 





           
                  
                    
                    
                     ,




as Borrower




to




WACHOVIA BANK, NATIONAL ASSOCIATION,




as Lender




MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF RENTS

AND FIXTURE FILING




 






Dated: April ___, 2007




PREPARED BY AND UPON RECORDATION RETURN TO:




Proskauer Rose llp

1585 Broadway

New York, New York 10036




Attention: David J. Weinberger, Esq.




 





 









 





     THIS MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF RENTS AND FIXTURE FILING (the “Security
Instrument”) is made as of the ___day of April, 2007, by the party set forth as Borrower on
the signature page hereof, having their chief executive office at 14185 Dallas Parkway, Suite 1100,
Dallas, Texas 75254-4308 (hereinafter referred to as “Borrower”), to WACHOVIA BANK,
NATIONAL ASSOCIATION, having an address at Wachovia Bank, National Association, 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 FIFTEEN MILLION and
NO/100 DOLLARS ($315,000,000.00) (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”)
given by the Cross-collateralized Borrowers, as maker, to Lender, as payee;



     WHEREAS, in consideration of the Loan, the Cross-collateralized Borrowers have 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 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 the Cross-collateralized Borrowers’
obligations to Lender from time to time pursuant to the Note 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, 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 Note or any other Loan Documents, including, without limitation, interest
on said obligations, liabilities or sums (said principal, premium, interest and other sums being
hereinafter referred to as the “Debt”), and the performance of all other covenants,
obligations and liabilities of the Cross-collateralized Borrowers pursuant to the Loan Documents,
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 Lender, forever with power of sale, all right, title and
interest of Borrower 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 and the Management Agreement, the
Franchise Agreement, 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 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, inventory 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, or 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, or 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;



     (f) all leases, tenancies, franchises (to the extent not prohibited in the Franchise
Agreement), 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, including, without limitation the existing
Operating Lease (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 and rental and use of guest
rooms or meeting rooms or banquet rooms or recreational facilities



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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
Escrow Accounts, the Central Account, the Collection Account, and the Sub-Accounts and all monies
and investments deposited or to be deposited in such accounts;



     (i) all accounts receivable, contract rights, franchises (to the extent not
prohibited in the Franchise Agreement), 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 (to the extent assignable) 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;



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     (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) in the event Borrower is a tenancy-in-common, all rights of TICs under the TIC
Agreement including, without limitation, any rights of first refusal, options to purchase and
similar rights and any rights of first refusal arising under Section 363(i) of the Bankruptcy Code;
and



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



     All of the foregoing items (a) through (q), 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 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 have the meanings assigned to
them 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.



     “Adjusted Net Cash Flow” shall mean Net Operating Income for the twelve (12)-month
period prior to the date of calculation less, without duplication, (a) the Recurring Replacement
Reserve Monthly Installment (assuming for purposes of this definition that the definition of
Recurring Replacement Reserve Monthly Installment only includes the first sentence thereof)
multiplied by twelve (12) and (b) extraordinary capital improvements projected by Lender, in its
reasonable discretion, for the subsequent twelve (12) month period for which sums were not
deposited into the Recurring Replacement Reserve Escrow Account. The Adjusted Net Cash Flow shall
be calculated by Borrower and shall be subject to the reasonable review and approval of Lender.



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     “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.



     “Aggregate Debt Service Coverage” shall mean the quotient obtained by dividing the
aggregate Adjusted Net Cash Flow for all of the Cross-collateralized Properties for a specified
period by the sum of the (a) aggregate payments of interest, principal and all other sums due under
the Note for such specified period (determined as of the date the calculation of Aggregate Debt Service Coverage is required or requested hereunder)
and (b) aggregate payments of interest, principal and all other sums due for such specified period
pursuant to the terms of subordinate or mezzanine financing, if any, then affecting or related to
the Cross-collateralized Properties or, if Aggregate Debt Service Coverage is being calculated in
connection with a request for consent to any subordinate financing, then proposed. In determining
Aggregate Debt Service Coverage, the applicable interest rate for the Loan and for any floating
rate loan referred to in clause (b) above, if any, shall be the greater of (1) the LIBOR Margin,
with respect to the Loan, and the applicable margin over the applicable index, with respect to any
other loan referred to in clause (b) above, plus the then current LIBOR Rate, with respect to the
Loan, or the then current applicable index rate, with respect to any other loan described in clause
(b) above (but in no event more than the strike price set forth in the Rate Cap Agreement or any
similar agreement applicable to any loan referred to in clause (b) above), and (2) 7.65%.



     “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 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



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“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.



     “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 Franchisor” shall mean the Franchisors listed on Exhibit F attached hereto
and made a part hereof and any flag operated thereby.



     “Approved Letter of Credit” shall mean an irrevocable, unconditional, transferable,
clean sight draft letter of credit in favor of Lender and its successors and/or assigns, the
obligation to reimburse draws made in connection with which are those of a Person other than
Borrower, with a term of not less than one (1) year and which is drawable in whole or in part by
sight draft in New York City, issued by a bank having a long-term unsecured debt rating of not less
than “AA” (or its equivalent) and a short-term unsecured debt rating of not less than “A-1” (or its
equivalent) by each Rating Agency and otherwise reasonably acceptable to Lender.



     “Approved Manager” shall mean (a) the Manager as of the Closing Date or (b) the
property managers listed on Exhibit F attached hereto and made a part hereof (or an Affiliate 51%
or more of the legal and beneficial interest of which is owned by the managers listed on Exhibit F
attached hereto), provided that each such property manager continues to be Controlled by
substantially the same persons Controlling such property manager as of the Closing Date (or if such
manager is a publicly traded company, such manager continues to be traded on a national stock
exchange or quoted on the NASDAQ Stock Market) and such additional management companies as are
reasonably approved by Lender, which approval may, subsequent to a Securitization, be conditioned
upon, among other things, confirmation from each Rating Agency 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 current ratings thereof, qualified or withdrawn.



     “Approved Manager Standard” shall mean the standard of business operations, practices
and procedures customarily employed by entities having a senior executive with at least seven (7)
years’ experience in the management of hotels of the same class and quality (as of the Closing
Date) as the Improvements which manage not less than five (5) such hotel properties having an
aggregate number of hotel rooms of not less than five thousand (5,000) 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.



     “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.



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     “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) Real Estate Taxes 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. “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.
Notwithstanding the foregoing, provided that no Event of Default exists, if Borrower is depositing
a sum with Manager on a monthly basis pursuant to the Management Agreement to be used for the
payment of Basic Carrying Costs, such sums are controlled by Manager, and Borrower shall have
delivered, or caused to be delivered to Lender proof that the Basic Carrying Costs with respect to
which Manager is receiving deposits are paid not less than five (5) Business Days prior to the date
upon which any fine, penalty, interest or cost for nonpayment is imposed, the Basic Carrying Costs
Monthly Installment shall be reduced by the amount of Basic Carrying Costs which are deposited with
Manager.



     “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.



     “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 (excluding Capital
Expenditures) 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 and the Recurring Replacement Reserve Sub-Account
(to the extent such sums are for the payment of sums set forth as operating expenses in the
Approved Annual Budget).



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



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



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     “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 issued pursuant thereto.



     “Collection Account” shall mean one or more Eligible Accounts maintained in a bank
acceptable to Lender in the joint names of Borrower and Lender or such other name as Lender may
designate in writing.



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



     “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.”



     “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.



     “Cross-collateralization Agreement” shall mean that certain Cross-collateralization
Agreement of even date herewith between Borrower, the other Cross-collateralized Borrowers and
Lender.



     “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 C 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.



     “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 into which excess cash flow shall be deposited pursuant
to Section 5.05.



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



8









 





     “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 Adjusted Net Cash
Flow by the sum of the (a) aggregate payments of interest, principal and all other sums due for
such specified period which are allocable to a principal portion of the Note equal to the Allocated
Loan Amount (determined as of the date the calculation of Debt Service Coverage is required or
requested hereunder) and (b) aggregate payments of interest, principal and all other sums due for
such specified period pursuant to the terms of subordinate or mezzanine financing (to the extent
allocable to the Property, as determined by Lender in its reasonable discretion or with respect to
the Mez Loan, allocated based upon the allocated loan amount set forth in the documents evidencing
the Mez Loan), if any, then affecting or related to the Property or, if Debt Service Coverage is
being calculated in connection with a request for consent to any subordinate or mezzanine
financing, then proposed. In determining Debt Service Coverage, the applicable interest rate for
the Loan and for any floating rate loan referred to in clause (b) above, if any, shall be the greater of (1) the LIBOR Margin, with respect to the Loan, and
the applicable margin over the applicable index, with respect to any other loan referred to in
clause (b) above, plus the then current LIBOR Rate, with respect to the Loan, or the then current
applicable index rate, with respect to any other loan described in clause (b) above (but in no
event more than the strike price set forth in the Rate Cap Agreement or any similar agreement
applicable to any loan referred to in clause (b) above), and (2) 7.65%.



     “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” shall mean Adjusted Net Cash Flow for all of the Cross-collateralized
Properties divided by the sum of (a) the unpaid Principal Amount 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 (determined as of the date of the
calculation of Debt Yield).



     “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 Management Period” shall mean any period of time during the term hereof when
the Property is not being managed by an Approved Manager pursuant to the terms hereof.



     “Default Rate” shall mean the lesser of (a) the highest rate allowable at law and (b)
five percent (5%) above the interest rate set forth in the Note.



     “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.



     “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.



     “Disclosure Document” shall mean a prospectus, prospectus supplement, private
placement memorandum, or similar offering memorandum or offering circular, in each case in
preliminary or final form, used to offer securities in connection with a Securitization.



     “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



9









 







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 second 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 second 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 in violation of any Environmental Statute;




     (b) the release of any Hazardous Material from or onto the Property to the extent such
release is required to be reported pursuant to Environmental Statutes;




     (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 conditions 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,



10









 







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
from time to time, and the regulations promulgated thereunder. Section references to ERISA are to
ERISA, as in effect at the date of this Security Instrument and, as of the relevant date, any
subsequent provisions of ERISA, amendatory thereof, supplemental thereto or substituted therefor.



     “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 Recurring Replacement Reserve Escrow Account, the Mez Payment Escrow
Account, the Operation and Maintenance Expense Escrow Account and the Curtailment Reserve 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 an extraordinary operating expense or capital
expense not set forth in the Approved Annual Budget or allotted for in the Recurring Replacement
Reserve Sub-Account.



     “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.



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



     “Force Majeure” shall mean acts of god, governmental restrictions, stays, judgments,
orders, decrees, enemy actions, civil commotion, fire, casualty, strikes or work stoppages which
are industry-wide and not aimed at Borrower nor its Affiliates, or other causes beyond the
reasonable control of Borrower and/or its Affiliates, but Borrower’s lack of funds in and of itself
shall not be deemed a cause beyond the control of Borrower.



     “Franchise Agreement” shall mean any franchise or license agreement relating to the
branding or operation of the Premises or any other agreement pursuant to which a franchise system,
reservation system or brand affiliation is made available to the hotel operator of the Premises,
together with all renewals and replacements thereof.



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



11









 





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



     “Guarantor” shall mean any Person guaranteeing, in whole or in part, the obligations
of Borrower under the Loan Documents.



     “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, sales (including those imposed on lease rentals), use, single business, gross receipts,
value added, intangible, transaction, privilege or license or similar taxes), 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, water, sewer or other rents and 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,
(b) the Property or any part thereof or any Rents therefrom or any estate, right, title or interest
therein, or (c) any occupancy, operation, use or possession of, or sales from, or activity
conducted on, or in connection with the Property, or any part thereof, or the leasing or use of the
Property, or any part thereof, or the acquisition or financing of the acquisition of the Property,
or any part thereof, by Borrower. 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.



     “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.



12









 





     “Initial Allocated Loan Amount” shall mean the portion of the Loan Amount allocated to
each Cross-collateralized Property as set forth on Exhibit C 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
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 Rate” 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 expenses, supplies and
similar items, as defined in the Uniform System of Accounts.



     “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.



13









 





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



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



     “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 Space Lease” shall mean any Space Lease of a tenant or Affiliate of such tenant
where such tenant, together with such Affiliate, leases, in the aggregate, 10,000 square feet or
more and each restaurant, bar and/or casino lease.



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



     “Manager” shall mean the Person, other than Borrower and/or Operating Tenant, which
manages the Property on behalf of Borrower.



     “Material Adverse Effect” shall mean any event or condition that has a material
adverse effect on (a) the Property, (b) the business, prospects, 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.



     “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 one or more mezzanine loans from Wachovia Bank, National
Association to Affiliates of Borrower which are evidenced by certain promissory notes of even date
herewith and which are secured by a first priority pledge of the direct or indirect ownership
interest of such Persons in Borrower.



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



14









 





     “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 and which is covered by Title IV of ERISA.



     “Net Capital Expenditures” shall mean for any period the amount by which Capital
Expenditures during such period exceed reimbursements for such items during such period from any
fund 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 Operative Period” shall mean the period of time (a) commencing upon the earlier
to occur of (i) an Event of Default and (ii) determination by Lender that the Aggregate Debt
Service Coverage (tested quarterly except during the continuance of an O&M Operative Period, in
which event the Aggregate 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 1.05:1 and (b) and terminating (i) if the O&M Operative Period commenced
pursuant to clause (a)(i) above, upon the cure of all Events of Default, provided that Lender
accepts the cure of all Events of Default, the Loan has not been accelerated and Lender has not
moved for the appointment of a receiver with respect to one or more Cross-collateralized Properties
nor commenced foreclosure proceedings with respect to any Cross-collateralized Properties, and (ii)
if the O&M Operative Period commenced pursuant to clause (a)(ii) above, on the Payment Date next
succeeding the date upon which Lender determines that the Aggregate Debt Service Coverage for three
(3) consecutive months is 1.05:1 or greater.



     “OFAC List” shall mean 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 annual gross operating income and (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. 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.



15









 





     “Operating Income” shall mean, in each Fiscal Year or portion thereof during the term
hereof, all revenue derived by Borrower or Operating Tenant (or by Manager for the Account of
Borrower or Operating Tenant) arising from the Property including, without limitation, room
revenues, vending machines revenues, beverage revenues, food revenues, 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. 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
extraordinary, non-recurring revenues, (g) Rent paid by or on behalf of any lessee under an
Operating Lease or 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 Operating
Lease or Space Lease, as applicable, 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 for sixty (60) or more days unless the lessee has a long term unsecured
debt rating of not less than “A” (or its equivalent) from each Rating Agency; (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.



     “Operating Lease” shall mean any Lease of the entire Property pursuant to which a
Person other than Borrower assumes responsibility for the operation and management of the Property,
as the same may be amended from time to time.



     “Operating Tenant” shall mean the tenant under the Operating Lease.



     “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.



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



     “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 lien of any Equipment leases and Equipment
financing permitted in accordance with the terms of this Security Instrument, (b) the liens created
by the Loan Documents, (c) liens, if any, for Impositions not yet due or delinquent or being
contested in accordance with the terms of this Security Instrument, (d) any and all governmental,
public utility and private restrictions, covenants, reservations, easements, licenses or other
similar agreements which may hereafter be granted by Borrower in the ordinary course of business
and which may not reasonably be expected to have a Material Adverse Effect, (e) rights of existing
and future tenants, licensees and concessionaries pursuant to Leases in effect as of the date
hereof or entered into in accordance with the terms of the Loan Documents, and (f) the Operating
Lease and any renewal or replacement thereof in accordance with the terms of this Security
Agreement at the expiration thereof, and (g) any liens securing a Mez Loan.



16









 





     “Permitted Transfer” shall mean, (a) Permitted Liens; (b) all transfers of Equipment
and other items of personal property as expressly permitted in the Loan Documents; (c) transfers of
direct and indirect interests in Borrower (other than interests held by a General Partner) and/or
in General Partner to one or more Affiliates of Borrower; (d) transfers, issuances, conversions,
pledges and redemptions of capital stock and partnership interests convertible into capital stock
in Ashford Hospitality Trust, Inc., a Maryland corporation or Ashford Hospitality Limited
Partnership, a Delaware limited partnership (or their respective successors) in the ordinary course
of business and not in connection with a tender offer, merger or sale of such Persons and (e) the
merger or consolidation of Ashford Hospitality Trust, Inc., Ashford OP General Partner LLC, Ashford
OP Limited Partner LLC or Ashford Hospitality Limited Partnership (or their respective successors)
whereby such entity is the surviving entity in such merger or consolidation, provided that,
subsequent to a Securitization, each Rating Agency shall have delivered written confirmation that
any ratings issued by the Rating Agency in connection with a Securitization will not, as a result
of the proposed merger or consolidation, be downgraded from the then current ratings thereof,
qualified or withdrawn, provided in each of the foregoing events, (a) ultimate Control of Borrower
remains with the same Persons which ultimately Controlled Borrower as of the Closing Date, (b) in
the event that any Person which as of the Closing Date does not own 49% or more of the director or
indirect interest in Borrower or Operating Tenant, if applicable, obtains a 49% or greater direct
or indirect interest in Borrower or Operating Partnership, Borrower shall deliver a substantive
non-consolidation opinion to Lender in form and substance and from counsel reasonably acceptable to
Lender and (c) no Transfer may be to a Prohibited Person.



     “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” shall mean any Person and/or any Affiliate thereof 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, but not including
any brokerage agreements, Management Agreements, Operating Leases, Franchise Agreements, service
contracts, Space Leases or the Loan Documents.



     “Property Available Cash” shall mean all amounts payable to Borrower and/or Operating
Tenant pursuant to the Management Agreement.



     “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 six
percent (6.0%) entered into by Borrower in accordance



17









 







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.



     “Rating Agency” shall mean each of Standard & Poor’s Ratings Services, a division of
The McGraw-Hill Company, Inc. (“Standard & Poor’s”), Fitch, Inc., and Moody’s Investors
Service, Inc. (“Moody’s”) 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.



     “Real Estate Taxes” shall mean all real estate taxes, 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), water, sewer or other rents and charges, 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 (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 the Property or any part thereof or any estate,
right, title or interest therein.



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



     “Recurring Replacement Expenditures” shall mean expenditures related to capital
repairs, replacements and improvements performed at the Property from time to time.



     “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 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 2007 and an amount per month in each subsequent year or
portion thereof occurring prior to the Maturity Date equal to four percent (4%) (or such lesser
amount as is required to be reserved for replacements pursuant to the Management Agreement (but in
no event less than three (3%) percent of the total revenues of the Property) of the total revenues
of the Property for the prior calendar year divided by twelve (12). Notwithstanding the foregoing,
if Borrower has delivered evidence reasonably satisfactory to Lender on or before the Payment Date
occurring in March of each year that Borrower has deposited with Manager on account of the prior
year pursuant to the Management Agreement a sum equal to the Recurring Replacement Reserve Monthly
Installment described in the first sentence of this definition multiplied by twelve (12) (the
“Minimum Replacement Expenditure”) to be used for Recurring Replacement Expenditures or
that Borrower and/or Manager on behalf of Borrower has incurred and paid a sum which when added to
the amounts on deposit with Manager are equal to or greater than the Minimum Replacement
Expenditure during the prior calendar year, the Recurring Replacement Reserve Monthly Installment
shall be zero and, if the sum of the amounts on deposit with manager to be used for Recurring
Replacement Expenditures pursuant to the Management Agreement together with the sums that Borrower
and/or Manager on behalf of Borrower has incurred and paid for Recurring Replacement Expenditures
are less than the Minimum Replacement Expenditure, the Recurring Replacement Reserve Monthly
Installment shall be the lesser of the amount described in the first sentence of this definition
and the amount by which the amount described in the first sentence of this definition exceeds
one-twelfth of the difference between the Minimum Replacement Expenditure and the sum of the
amounts actually on deposit with manager to be used for Recurring Replacement Expenditures pursuant
to the Management Agreement together with the sums that Borrower and/or Manager on behalf of
Borrower has incurred and paid for Recurring Replacement Expenditures but in no event more than the
sums on deposit in the Central Account on such Payment Date less sums allocated pursuant to clause
(i) — (iv) of Section 5.05(a) hereof (the “Required RRE Shortfall”).



     “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.



18









 





     “Regulation AB” shall mean Regulation AB under the Securities Act and the Securities
Exchange Act of 1934 (as amended).



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



     “Release Price Percentage” shall mean 110%.



     “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.



     “Required Debt Service Coverage” shall mean a Debt Service Coverage of not less than
1.0:1.



     “Required Debt Service Payment” shall mean, as of any Payment Date, 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 (and not revoked in writing in accordance with Section 15.01 hereof) under this
Security Instrument, Default Rate Interest and premium, if any, paid in accordance therewith.



     “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.



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



     “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 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.



     “Significant Obligor” shall have the meaning set forth in Item 1101(k) of Regulation
AB.



     “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 General
Partner, holding an ownership interest in and managing a Person which holds an ownership interest
in the Property, or, with respect to Operating Tenant, holding a interest in the Property, does not
engage in any business unrelated to, with respect to Borrower, the Property and, with respect to
General Partner, its interest in Borrower or, in the case of a General Partner of the Operating
Tenant, its interest in the Operating Tenant, does not have any assets other than those related to,
with respect to Borrower, its interest in the Property and, with respect to General Partner, its
interest in Borrower, in the case of a General Partner of the Operating Tenant, its interest in the
Operating Tenant, 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.



19









 





     “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) creating a leasehold right of possession for the use and
occupancy of a portion of the Property as a tenant together with any supplements, renewals,
amendments, modifications or extensions thereof excluding room reservations and other functions
held at the Property, and excluding the Operating Lease.



     “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 hereof.



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



     “TIC” shall have the meaning set forth in Section 2.12.



     “TIC Agreement” shall have the meaning set forth in Section 2.12.



     “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 is a corporation or,
if Borrower is a partnership and 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



20









 







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.



     “UCC” shall mean the Uniform Commercial Code as in effect on the date hereof in the
State in which the Realty is located; provided, however, that if by reason of mandatory provisions
of law, the perfection or the effect of perfection or non-perfection or priority of the security
interest in any item or portion of the collateral is governed by the Uniform Commercial Code as in
effect in a jurisdiction other than the State in which the Realty is located (“Other UCC
State”), “UCC” means the Uniform Commercial Code as in effect in such Other UCC State
for purposes of the provisions hereof relating to such perfection or effect of perfection or
non-perfection or priority.



     “Uniform System of Accounts” shall mean the Uniform System of Accounts for the Lodging
Industry, 10th Revised Edition, Educational Institute of the American Hotel and Motel Association
and Hotel Association of New York City (2006), 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:



          (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





21









 







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 make the borrowings thereunder, to execute and deliver the Note and to grant to Lender a
first, prior, 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 which has not already
been obtained of any member, limited partner or shareholder, as applicable, of Borrower 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 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. 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 have a Material Adverse Effect.




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





     (ii) Borrower, Operating Tenant and, if applicable, each General Partner, at
all times since their organization have complied, and will continue to comply in all
material respects, with the provisions



22









 







of its certificate of limited partnership and
agreement of limited 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, Operating Tenant and, if applicable, each General Partner
have done or caused to be done and will do all things reasonably necessary to observe
organizational formalities and preserve their existence and Borrower, Operating Tenant and,
if applicable, each General Partner will not hereafter amend, modify or otherwise change the
certificate of limited partnership and agreement of limited 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, Operating
Tenant and, if applicable, each General Partner, except for non-material amendments which do
not modify the Single Purpose Entity provisions.




     (iv) Borrower, Operating Tenant and, if applicable, each General Partner,
have at all times accurately maintained, and will continue to accurately maintain in all
material respects, their respective financial statements, accounting records and other
partnership, company or corporate documents separate from those of any other Person and
Borrower, Operating Tenant and/or, if applicable, General Partner, have filed and will file
its own tax returns or, if Borrower, Operating Tenant and/or, if applicable, General Partner
is part of a consolidated group for purposes of filing tax returns, Borrower, Operating
Tenant and, General Partner, as applicable, have been shown and will be shown as separate
members of such group. Borrower, Operating Tenant and, if applicable, each General Partner
have not at any time since their formation commingled, and will not commingle, their respective assets with those of any
other Person and each has maintained 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, Operating Tenant and, if applicable, each
General Partner has not permitted and will not permit any Affiliate independent access to
their bank accounts. Borrower, Operating Tenant 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, Operating Tenant 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 each has allocated and charged and shall each allocate and charge fairly and
reasonably any overhead which Borrower, Operating Tenant 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, Operating Tenant 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
have corrected and shall correct any known misunderstanding regarding their status as
separate and distinct entities. Borrower, Operating Tenant 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, Operating Tenant 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, Operating Tenant 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 or, with respect to Operating Tenant, its
leasehold interest in the Property, and, with respect to General Partner, if applicable, its
interest in Borrower or, with respect to a General Partner of Operating Tenant, its interest
in Operating Tenant, (B) have not engaged and will not engage in any business other



23









 







than, with respect to Borrower, the ownership, management and operation of the Property, or with
respect to Operating Tenant, its interest in the Property, or, with respect to General
Partner, if applicable, its interest in Borrower or, with respect to a General Partner of
Operating Tenant, its interest in Operating Tenant, (C) have not incurred any outstanding
debt as of the date hereof, and will not incur any debt, secured or unsecured, direct or
contingent (including guaranteeing any obligation), other than, with respect to Borrower,
(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 two percent (2%) of the Allocated Loan Amount for the Property 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 and
(2) does not, together with any unsecured trade and operational debt incurred pursuant to
clause (X) hereof, exceed in the aggregate two percent (2%) of the Allocated Loan Amount and
(Z) contingent obligations to repay customer, membership and security deposits held in the
ordinary course of Borrower’s business, (D) have not pledged (other than pledges which have
been released which were given in connection with obligations which have been paid in full)
and will not pledge their assets for the benefit of any other Person, and (E) have not made
and will not make any loans or advances to any Person (including any Affiliate).




     (ix) None of Borrower, Operating Tenant nor, if applicable, any General
Partner will hereafter change its name or principal place of business.




     (x) None of Borrower, Operating Tenant nor, if applicable, any General
Partner has, and neither of such Persons will have, any subsidiaries (other than, with
respect to General Partner, Borrower or, with respect to General Partner of Operating
Tenant, Operating Tenant).




     (xi) Borrower has preserved and maintained and will preserve and maintain its
existence as a Delaware limited partnership or a Delaware limited liability company, as
applicable, and all material rights, privileges, tradenames and franchises and Operating
Tenant has preserved and maintained and will preserve and maintain its existence as a
Delaware limited partnership and all material rights, privileges, tradenames and franchises.
General Partner, if applicable, has preserved and maintained and will preserve and maintain
its existence as a Delaware limited liability company and all material rights, privileges,
tradenames and franchises.




     (xii) None of Borrower, Operating Tenant nor, if applicable, any General
Partner, has merged or consolidated with, and none will merge or consolidate with, and none
has sold all or substantially all of its respective assets to any Person, and none will sell
all or substantially all of its respective assets to any Person, and none has liquidated,
wound up or dissolved itself (or suffered any liquidation, winding up or dissolution) and
none will liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or
dissolution). None of Borrower, Operating Tenant nor, if applicable, any General Partner
has acquired nor 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 (other than, with
respect to General Partner, if applicable, its interest in Borrower and Operating Tenant).




     (xiii) Borrower, Operating Tenant and, if applicable, each General Partner,
have 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 the Loan and other loans
which have been paid in full, and liens granted thereunder fully discharged, prior to the
date hereof. None of Borrower, Operating Tenant nor, if applicable, each General Partner,
have at any time since its formation acquired, and will not acquire, obligations or
securities of its partners or



24









 







shareholders, members or any predecessor company, corporation
or partnership, each as applicable, or any Affiliates (other than, with respect to General
Partner, its interest in Borrower or, with respect to General Partner of Operating Tenant,
its interest in Operating Tenant). Borrower, Operating Tenant 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,
Operating Tenant and, if applicable, each General Partner, have no known material 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.




     (xiv) Neither Borrower nor Operating Tenant nor, if applicable, General
Partner, has at any time since its formation entered into and was 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 such Person on terms which are no less favorable to such Person than would be
obtained in a comparable arm’s length transaction with an unrelated third party.




     (xv) If Borrower or Operating Tenant is a limited partnership, the General
Partner shall be a corporation or limited liability company whose sole asset is its interest
in Borrower or Operating Tenant, as applicable, and the General Partner will at all times
comply, and will cause Borrower or Operating Tenant, as applicable, 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 Operating Tenant shall at all times cause there to be at
least two duly appointed members 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 Operating
Tenant is a corporation, Borrower or Operating Tenant, as applicable, if Borrower or
Operating Tenant is a limited partnership, of the General Partner, and if Borrower or
Operating Tenant is a limited liability company, of the General Partner or of Borrower or
Operating Tenant, as applicable, 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, officer, director, attorney, counsel, partner, member or employee of Borrower,
Operating Tenant or any of the foregoing Persons or Affiliates thereof, (B) a customer or
creditor of, or supplier or service provider to, Borrower 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, Operating Tenant 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, Operating Tenant
or General Partner if such individual is an independent director provided by a
nationally-recognized company that provides professional independent directors.




     (xvii) Borrower, Operating Tenant 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, Operating Tenant or, if applicable, each General
Partner, to take any action which, under the terms of any certificate of incorporation,
by-laws, limited liability company agreement, operating agreement, certificate of formation
or articles of organization requires a vote of the board of directors or board of managers
or other governing board or body of Borrower, Operating Tenant, or, if applicable, the
General Partner and also requires the vote of the Independent Directors therewith, unless at
the time of such action there shall be at least two members who are Independent Directors.




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



25









 






     (xix) Borrower and Operating Tenant shall, and shall cause its Affiliates to,
and Borrower and Operating Tenant have and have caused their Affiliates to, conduct its
business so that the assumptions made with respect to Borrower, Operating Tenant and, if
applicable, each General Partner, in that certain opinion letter relating to substantive
non-consolidation dated the date hereof (the “Insolvency Opinion”) delivered in
connection with the Loan has been and shall be true and correct in all respects.



     Notwithstanding anything to the contrary contained in this Section 2.02(g), provided Borrower
or Operating Tenant, as applicable, is 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 Event of Default or, to Borrower’s knowledge, 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 material 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.



     (k) Compliance with Law. To Borrower’s knowledge, Borrower is in compliance
with all Legal Requirements to which it or the Property is subject, including, without limitation,
all Environmental Statutes (except as previously disclosed in the Environmental Report), the
Americans with Disabilities Act (except as previously disclosed in the engineering report relating
to the Property delivered to Lender in connection with the origination of the Loan), the
Occupational Safety and Health Act of 1970 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 in all material respects 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, neither Borrower nor, if
applicable, any General Partner, has any material contingent liability, material 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 nor, if applicable, any General Partner,
or in the results of operations of Borrower which would have a Material Adverse Effect. Neither
Borrower 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.



26









 





     (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. All brokerage fees, commissions and other
expenses payable in connection with the transactions contemplated by the Loan Documents have been
paid in full by Borrower contemporaneously with the execution of the Loan Documents and the funding
of the Loan. 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 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.



     (p) Solvency; No Bankruptcy. Each of Borrower 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 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) purchase the Property and, if applicable, satisfy certain
mortgage 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 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 and, if applicable, the General Partners. Borrower and, if applicable, the General
Partners, believe that their respective tax returns properly reflect the income and taxes of
Borrower 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) Neither Borrower nor Guarantor is, or is acting on behalf
of: (a) an “employee benefit plan” within the meaning of Section 3(3) of ERISA, that is subject to
Part 4 of Title I of ERISA; (b) a “plan” within



27









 







the meaning of section 4975(e)(1) of the Code that
is subject to section 4975 of the Code or (c) any other entity that is deemed under applicable law
to hold the assets of a plan described in (a) or (b) and this representation shall be deemed to be
continuing in nature for all periods that this Security Instrument is in effect. Each Plan is in
compliance 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, except
to the extent the foregoing could not have a Material Adverse Effect, 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. With respect to each Plan maintained or contributed
to by Borrower, Guarantor or any ERISA Affiliate thereof (a) there is no actual or contingent
material liability of Borrower, Guarantor or any ERISA Affiliate under Title IV of ERISA or Section
412 of the Code to any person or entity, including the Pension Benefit Guaranty Corporation, IRS,
any such Plan or participants (or their beneficiaries) in any such Plan (other than the obligation
to pay routine benefit claims when due under the terms of such Plan), (b) the assets of Borrower or
Guarantor have not been subject to a lien under ERISA or the Code and (c) there is no basis for
such material liability or the assertion of any such lien with respect to the assets of Borrower or
Guarantor as the result of or after the consummation of the transactions contemplated by this
Security Instrument. Except to the extent the following could not have a Material Adverse Effect,
no Welfare 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 or
Guarantor 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
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 by
Borrower or any ERISA Affiliate that results in material 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;



28









 






     (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;




     (G) the imposition of a lien or a security interest in connection
with a Plan; or




     (H) Borrower or Guarantor permits any Welfare Plan to provide
benefits, including without limitation, medical benefits (whether or not insured),
with respect to any current or former employee of Borrower or Guarantor beyond his
or her retirement or other termination of service other than (1) coverage mandated
by applicable law, (2) death or disability benefits that have been fully provided
for by paid up insurance or otherwise or (3) severance benefits.




     (iii) Borrower shall not knowingly engage in or permit any transaction in
connection with which Borrower or Guarantor could be subject to either a material civil
penalty or tax assessed pursuant to Section 502(i) or 502(l) of ERISA or Section 4975 of the
Code, to the extent it could have a Material Adverse Effect, permit any Welfare Plan to
provide benefits, including without limitation, medical benefits (whether or not insured),
with respect to any current or former employee of Borrower or Guarantor 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”, as defined under ERISA Section 3(42) and regulations promulgated thereunder or, to the extent it could
have a Material Adverse Effect, 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) 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.



     (u) Labor Matters. No organized work stoppage or labor strike is pending or
threatened by employees or other laborers at the Property and neither Borrower nor Manager (i) is
involved in or threatened with any 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 to the extent previously disclosed to Lender in writing, 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, 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) will not change its type of organization, jurisdiction of organization or other
legal structure.



29









 





     (w) Compliance with Anti-Terrorism, Embargo and Anti-Money Laundering Laws.
(i) None of Borrower, General Partner, any Guarantor, or any Person who owns any equity interest
in or Controls Borrower, General Partner or any Guarantor currently is identified on the OFAC List
or otherwise qualifies as a Prohibited Person, and Borrower has implemented procedures, approved by
Borrower and, if applicable, General Partner, to ensure that no Person who now or hereafter owns an
equity interest in Borrower 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, General Partner, or any Guarantor is 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. Notwithstanding the foregoing, with
respect to the holders of shares in publicly traded corporations which hold an equity interest in
Borrower, General Partner or Guarantor and which holders of shares in publicly traded corporations
do not Control Borrower, General Partner or Guarantor, the representations contained in clauses (i)
and (iii) of the preceding sentence are made to the knowledge of Borrower. No tenant 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 at the Property is a Prohibited Person or owned or Controlled by
a Prohibited Person.



     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 shall, from time to time, reasonably require for
the better assuring, conveying, assigning, transferring, and confirming unto Lender 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, 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 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; provided, however, that Lender shall not
exercise such power of attorney unless and until Borrower fails to take the required action within
the five (5) Business Day time period stated above unless the failure to so exercise, could, in
Lender’s reasonable judgment, result in a Material Adverse Effect. Upon (a) 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, (b) receipt of an indemnity of Lender
related to losses resulting solely from the issuance of a replacement note or other applicable Loan
Document and (c) 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



30









 







charges arising out of or in connection with the execution and delivery of this Security Instrument, any mortgage or
deed of 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 its 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 or subordinate
matters 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, subject to the Permitted Encumbrances and will forever warrant and defend
the same to Lender against any and all other 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 owing 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
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. Except as disclosed
on the survey of the Premises delivered to Lender in connection with the origination of the Loan,
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) 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.



31









 





     (e) Completion; Encroachment. All Improvements necessary for the efficient
use and operation of the Premises, including, without limitation, all Improvements which were
included for purposes of determining the appraised value of the Property in the Appraisal, have
been completed and, except as disclosed on the survey of the Premises delivered to Lender 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 disclosed on the survey of the Premises
delivered to Lender in connection with the origination of the Loan and 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. Except as previously disclosed in the zoning report relating to
the Premises delivered to Lender in connection with the origination of the Loan, 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. 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) Environmental Matters. Borrower has received and reviewed the
Environmental Report and has no reason to believe that the Environmental Report contains any untrue
statement of a material fact or omits to state a material fact necessary to make the statements
contained therein or herein, in light of the circumstances under which such statements were made,
not misleading.



     (j) Property Proceedings. There are no actions, suits or proceedings
pending or, to Borrower’s best knowledge, 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



32









 







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) Title Insurance. Lender has received a lender’s title insurance policy
insuring this Security Instrument as a first lien on the Realty subject only to Permitted
Encumbrances.



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



     (o) Space Leases.




     (i) To Borrower’s best knowledge, 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; the lease expiration date,
extension and renewal provisions; the base rent and percentage rent payable; and the
security deposit held thereunder.




     (ii) Each Space Lease constitutes the legal, valid and binding obligation of
Borrower or, the Operating Tenant, as applicable, 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, which would, in the aggregate, have a Material Adverse
Effect.




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




     (iv) To Borrower’s best knowledge, except as disclosed in writing to Lender,
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) To Borrower’s best knowledge, except as previously disclosed to Lender in
writing or contained in the Space Leases, there are no options to terminate any Space Lease.




     (vi) To Borrower’s best knowledge, each tenant under a Major Space Lease or
such tenant’s authorized subtenant is currently occupying the space demised by such Major
Space Lease.




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




     (viii) No Space Lease has been assigned or, to Borrower’s best knowledge,
modified, supplemented or amended in any way.




     (ix) To Borrower’s best knowledge, each tenant under each Space Lease is free
from bankruptcy, reorganization or arrangement proceedings or a general assignment for the
benefit of creditors.



33









 






     (x) To Borrower’s best knowledge, 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 of record or which could bind any owner of the Property other than
Borrower.




     (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.




     (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 currently 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) Except as previously disclosed in writing to Lender, all work, if any,
required to be performed by Borrower prior to the date hereof 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. Except as previously disclosed in writing to Lender,
Borrower represents that it or Operating Tenant has good and marketable title to all personal
property used in connection with the operation of the 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 and upon termination of any Operating Lease any personal
property owned by Operating Tenant will be transferred free and clear of any liens to Borrower.



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



     (s) Security Deposits. 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.



     (t) Loan to Value Ratio. To the best knowledge of Borrower, based on the
substantial real estate expertise of Borrower, Borrower’s familiarity with the Property, and the
Appraisal (which Borrower believes to contain a reasonable assessment of the fair market value of
the Property), the Initial Allocated Loan Amount does



34









 







not exceed one hundred twenty-five percent
(125%) of the fair market value of the Property. For the purposes of this clause (t), the term
“fair market value” shall be reduced by (i) the amount of any indebtedness secured by a lien
affecting the Property that is prior to, or on a parity with, the lien of this Security Instrument,
and (ii) the value of any property that is not “real property” within the meaning of Treas. Reg. §§
1.860G-2 and 1.856-3(d).



     (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.



     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 thirty (30) days following receipt of knowledge of any lien,
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) 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 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 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



35









 







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 is made a party relating to the
Loan Documents and/or the Property or Lender’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 for all expenses (including, without limitation, reasonable attorneys’
fees and disbursements) incurred by Lender 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 and The
Uniform System of Accounts (or such other accounting basis reasonably acceptable to Lender)
consistently applied, proper and accurate books, tax returns, records and accounts reflecting (i)
all of the financial affairs of Borrower and 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 and 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 accompanied by audited
financial statements of Ashford Hospitality Trust Inc. which are audited by a nationally recognized
Independent certified public accountant that is acceptable to Lender in accordance with GAAP and
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 (A) 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 and 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 and (B) together
with the financial statements delivered pursuant to Section 2.09(b)(ii) above, a statement showing
(1) projected Net Operating Income for the subsequent twelve (12) month period adjusted to reflect
the Adjusted Net Cash Flow (subject to verification by Lender in its reasonable discretion) and (2)
the calculation of the Aggregate Debt Service Coverage.



36









 





     (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 required
to be delivered pursuant to the Management Agreement and made a part hereof or such other form
acceptable to Lender, showing (i) all cash receipts of any kind whatsoever and all cash payments
and disbursements, (ii) year-to-date summaries of such cash receipts, payments and disbursements,
and (iii) during an O&M Operative Period, a calculation of the Aggregate Debt Service Coverage,
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) Intentionally Omitted.



     (e) At any time during which (i) an O&M Operative Period exists or (ii) the Rent
under Space Leases exceeds five percent (5%) of the annual Operating Income, 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 which includes the information contained on the Rent Roll, including a list of which
tenants are in default under their respective Major Space Leases, dated as of the date of Lender’s
request, identifying each tenant that has filed a bankruptcy, insolvency, or reorganization
proceeding since delivery of the last such rent roll, and the arrearages for such tenant, if any,
and, if requested by Lender, a summary of the material terms of the Major Space Leases, including,
without limitation, the dates of occupancy, the dates of expiration, any Rent concessions, work
obligations or other inducements granted to the tenants thereunder, and any renewal options, 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 twenty (20) days
following the end of each year, a schedule of tenant security deposits to the extent such security
deposits aggregate $1,000,000 or more.



     (h) Borrower will furnish Lender annually, within ninety (90) days after the end of
each Fiscal Year, with a report setting forth (i) the average occupancy rate of the Property during
such Fiscal Year, and (ii) the capital repairs, replacements and improvements performed at the
Property during such Fiscal Year and the aggregate Recurring Replacement Expenditures made in
connection therewith.



     (i) 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, advance booking information (excluding customer names), RevPAR Yield Index,
RevPAR and room revenues for each month of the preceding calendar year, as well as annual averages
of the same, and such other information as may customarily be reflected thereon or reasonably
requested by Lender, together with all franchise inspection reports and STR Reports received by
Borrower during the preceding month.



     (j) 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.



     (k) Borrower shall submit to Lender for Lender’s written approval (provided that
such approval shall only be required in the event that Borrower or any Affiliate of Borrower has
the right to approve any such budget pursuant to the terms of the Management Agreement) not to be
unreasonably withheld, an Annual Budget within ten (10) Business Days after receipt thereof from
Manager, in form satisfactory to Lender setting forth in reasonable



37









 







detail budgeted monthly
operating income and monthly operating capital and other expenses for the Property. In the event
Lender shall have the right to approve such Annual Budget and 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 three (3) 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. If Lender has the right to approve the
Annual Budget pursuant to the terms of the Management Agreement, until such time that Lender
approves a proposed Annual Budget, the most recently Approved Annual Budget shall, except as
otherwise provided in the Management Agreement, 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 which, if Borrower has the right to approve such expenditures pursuant to the
terms of the Management Agreement, shall be subject to Lender’s approval, which approval may be
granted or denied in Lender’s reasonable discretion.



     (l) 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 statement, report or other information remains undelivered, an
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 might have a Material Adverse Effect.



     Section 2.11. Updates of Representations. Borrower shall deliver to Lender
within ten (10) Business 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 in all material respects as of the date of such Officer’s Certificate or shall set
forth the exceptions to representations and/or warranties in reasonable detail, as applicable, and,
upon Lender’s request for further information with respect to such exceptions, shall provide Lender
such additional information as Lender may reasonably request



     Section 2.12. Tenancy-in-Common. In the event that title to the Property
is held by tenants-in-common, Borrower has delivered a true and complete written tenancy-in-common
agreement (the “TIC Agreement”) which has been duly executed by each tenant-in-common
having an interest in the Property (each, a “TIC”). The TIC Agreement provides, or, if not
otherwise provided for in the TIC Agreement, each TIC agrees, that (a) each TIC irrevocably waives
any and all rights of partition available at law, in equity or by contract, (b) each TIC shall at
all times be a Single Purpose Entity all of the legal and beneficial interest in which is owned by
an “Accredited Investor” as defined in Regulation D, as promulgated under the Securities Act, (c)
each TIC irrevocably waives any and all rights it may have at law or in equity to obtain a lien on
any tenant-in-common interest in the Property, (d) each TIC agrees that (i) any liens, security
interests, judgment liens, charges or other encumbrances upon the Property or any interest of
another TIC in the Property and (ii) any options to purchase or rights of first refusal or similar
rights with respect to another TIC’s interest in the Property shall be and remain inferior and
subordinate to



38









 







any liens, security interests, judgment liens, charges or other encumbrances upon
Borrower’s assets securing payment of the Debt, regardless of whether such liens, security
interests, judgment liens, charges or other encumbrances, rights or options presently exist or are
hereafter created or attach and that no TIC shall (i) exercise or enforce any creditor’s right it
may have against Borrower or any other TIC or (ii) foreclose, repossess, sequester or otherwise
take steps or institute any action or proceedings (judicial or otherwise, including without
limitation the commencement of, or joinder in, any liquidation, bankruptcy, rearrangement, debtor’s
relief or insolvency proceeding) to enforce any liens, security interests, judgment liens, charges
or other encumbrances on assets of Borrower or any other TIC, (e) at no time shall there be more
than three (3) TICs with respect to the Property, (f) the minimum investment in the Property of
each TIC shall be $500,000 and (g) Lender is a third-party beneficiary to the provisions relating
to the items set forth in (a) through (f) above. Borrower shall not amend, modify or terminate the
TIC Agreement.



ARTICLE III: INSURANCE AND CASUALTY RESTORATION




     Section 3.01. Insurance Coverage. Borrower shall, at its expense, maintain
or cause to be maintained 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 (which, in the case of
insurance during the time of any construction work (“Construction”) shall be in
“builder’s risk completed value non-reporting form” together with rents, earnings and extra
expense insurance covering loss due to delay in completion of the Improvements), 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 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 $50,000,000, or
such lesser amount as is required by the term of the Management Agreement (but in no event
less than $10,000,000) 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



39









 







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 total revenues derived
from the Property for the next succeeding twenty-four (24) months together with a six (6)
month extended period of indemnity. 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.




     (iv) Intentionally Omitted.




     (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 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) Insurance against loss resulting from mold, spores or fungus on or
about the Premises.




     (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.




     (x) At all times during Construction, contractor’s liability insurance to a
limit of not less than $25,000,000 on a per occurrence basis covering each contractor’s
construction operation at the Premises.




     (xi) 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, sinkhole and mine subsidence, acts of terrorism, war risk, 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.




     (xii) 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.




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



40









 





     (b) Borrower shall cause any Manager of the Property to maintain fidelity insurance
in an amount equal to or greater than the Operating Income of the Property for the six (6) 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 “AA” (or its equivalent), or such lower
claims paying ability rating and/or financial strength rating, as applicable, as Lender shall, in
its sole and absolute discretion, 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). Upon request of Lender 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 insured or, 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 $25,000, 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, certificates evidencing such
renewals bearing notations evidencing the payment of premiums or accompanied by other reasonable
evidence of such payment (which premiums shall not be paid by Borrower through or by any financing
arrangement which would entitle an insurer to terminate a policy) 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.



     (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 or Manager 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, or 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) 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



41









 







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 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 any proportion or priority as Lender, in its discretion, may
elect, (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. 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.



     Section 3.04. Casualty Restoration. (a) (i) In the event of any damage to
or destruction of the Property the cost to repair which could reasonably be expected to be in
excess of $250,000 in the aggregate, 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



42









 







Section 3.04(b) below. Such repair, restoration or rebuilding of the Property
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 $1,000,000.




     (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) an Event of 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) Lender is not reasonably satisfied that the Work can be completed six (6)
months prior to Maturity or (E) 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, 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 shall be applied to the payment of the Debt without any prepayment fee or
charge of any kind.




     (vi) If any Insurance Proceeds are applied to the payment of the Debt,
provided that no Event of Default exists, Borrower may prepay the balance of the Release
Price with respect to the Property in connection with obtaining a Release of the Property
without any prepayment fee or charge of any kind.



     (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 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 or reasonably expected to be 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



43









 







payments pursuant to this Article III
following exhaustion of the Insurance Proceeds 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 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, 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 substantially 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 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 satisfactorily done 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 has been made
pursuant to any previous request for payment 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 in favor of Lender.




     (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 to Borrower an amount (the “Retention Amount”) up
to (A) until fifty percent (50%) of the Work has been completed (as reasonably determined by
Lender), ten percent (10%) of the cost of the



44









 







Work and (B) after fifty percent (50%) of the
Work has been completed (as reasonably determined by Lender), five percent (5%) of the cost
of the Work. 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 final 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 to commence the Work or
to proceed diligently and continuously to completion of the Work, subject to Force Majeure,
not to exceed sixty (60) days, which failure shall continue after notice for thirty (30)
days, Lender may apply any Insurance Proceeds 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 ninety (90) days (plus, if all approvals from
Governmental Authorities have not been obtained within such period and Borrower has continuously
and expeditiously attempted to obtain such approvals within such time period, such additional
period of time required to obtain approvals from all Governmental Authorities up to one hundred
eighty (180) days in total, provided Borrower deposits with Lender an amount, as reasonably
determined by Lender, equal to the Required Debt Service Payment for each additional thirty (30)
day period) 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 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) If the Insurance Proceeds are greater than $1,000,000 or an Event of Default
exists 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.



     (e) Notwithstanding the foregoing provisions of this Section 3.04, upon the
occurrence of any damage to or destruction of the Property, provided that such damage or
destruction is not a Substantial Casualty, if in Lender’s reasonable judgment the cost of repair of
or restoration to the Property required as a result of any damage or destruction is less than
$1,000,000 in the aggregate and the Work can be completed in less than one hundred twenty (120)
days (but in no event beyond the date which is six (6) months prior to the Maturity Date), then
Lender, upon request by Borrower, shall permit Borrower to apply for and receive the Insurance
Proceeds directly from the insurer (and Lender shall advise the insurer to pay over such Insurance
Proceeds directly to Borrower), to the extent required to pay for any such Work, with any excess
thereof to be promptly paid by Borrower to Lender to be applied against the Debt.



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     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 or any of its 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 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, after the occurrence of an Event of Default, 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 such 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 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 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, 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. 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. 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
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 (or, if Lender determines in its
sole and absolute discretion, that no Material Adverse Effect may result therefrom, the
Release Price with respect to the Property) 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.



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     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, 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 or any of its 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 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 clause (d) of this Section 4.04, provided that Lender shall,
so long as no Event of Default exists, disburse to Borrower any sums held by Lender pursuant to
clause (d) hereof to pay any contested Impositions. Borrower shall not pay any Imposition in
installments unless permitted by applicable Legal Requirements, 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 (or, if Lender determines in its sole and absolute discretion, that no
Material Adverse Effect may result therefrom, the Release Price with respect to the Property)
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. All proceeds of the Rate Cap Agreement shall be
paid directly to the Central Account. All payments constituting Rent shall be delivered to
Manager. Manager shall collect all Rent and shall deposit in the Collection 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 Borrower to Lender, all Property Available Cash. Pursuant to the
Collection Account Agreement of even date herewith, the bank in which the Collection Account is
located has been instructed that all collected funds deposited in the Collection Account shall be
automatically transferred through automated clearing house funds (“ACH”) or by Federal wire
to the Central Account prior to 3:00 p.m. (New York City time) on the Business Day immediately
prior to each Payment Date or, if an O&M Operative Period has occurred and is continuing, on a
daily basis. Within two (2) Business Days of the Closing Date, Borrower shall



48









 







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. 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
Collection 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 Collection Account without the prior
written consent of Lender. All fees and charges of the bank(s) in which the Collection 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 and the Collection Account in the joint name
of Borrower and Lender, as secured party. The Escrow Accounts , the Collection Account and the
Central Account 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 Collection Account, and to deposit into and withdraw funds from 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 Collection Account, the
Central Account or the Escrow Accounts except as specifically provided herein. Each transfer of
funds to be made hereunder shall be made only to the extent that funds are on deposit in the
Collection Account, 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 Operation and
Maintenance Expense Sub-Account, the Mez Payment Sub-Acount 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.



     Section 5.04. Servicer. 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.



     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 all sums required to be deposited in the Sub-Accounts pursuant to 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 Basic Carrying Costs Sub-Account, until an amount equal to
the Basic Carrying Costs Monthly Installment for such Payment Date has been allocated to the
Basic Carrying Costs Sub-Account;




     (ii) second, to the Debt Service Payment Sub-Account, until an amount equal
to the Required Debt Service Payment for such Payment Date has been allocated to the Debt
Service Payment Sub-Account;




     (iii) third, but only during any Default Management Period, to the Operation
and Maintenance Expense Sub-Account in an amount equal to the Cash Expenses, other than
management fees payable to Affiliates of Borrower, for the Interest Accrual Period ending
immediately prior to such Payment Date pursuant to the related Approved Annual Budget;



49









 






     (iv) fourth, but only during any Default Management Period, to the Operation
and Maintenance Expense Sub-Account in an amount equal to the amount, if any, of the Net
Capital Expenditures for the Interest Accrual Period ending immediately prior to such
Payment Date pursuant to the related Approved Annual Budget;




     (v) fifth, to the Recurring Replacement Reserve Sub-Account, but only until
an amount equal to the Recurring Replacement Reserve Monthly Installment for such Payment
Date has been allocated to the Recurring Replacement Reserve Sub-Account;




     (vi) sixth, but only during any Default Management Period, to the Operation
and Maintenance Expense Sub-Account in an amount equal to the amount, if any, of the
Extraordinary Expenses approved by Lender for the Interest Accrual Period ending immediately
prior to such Payment Date;




     (vii) seventh, but only if an Event of 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, provided, however, in the event there is not sufficient Rent
to allocate all funds required to be allocated to the Mez Payment Sub-Account pursuant to
this clause viii such failure shall not, in and of itself, constitute a Default; and




     (viii) eighth, 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 as set forth in this Section 5.05(a) with respect to such Interest
Accrual Period and any periods prior thereto, shall be disbursed by Lender to Borrower on each
Payment Date and on the 15th day of each month (or if such date is not a Business Day, the first
Business Day after such 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
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 to the Debt in Lender’s sole discretion.



     (b) On each Payment Date, (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 Recurring Replacement Reserve Sub-Account shall be transferred to
the Recurring Replacement Reserve Escrow Account, (iv) sums held in the Mez Payment Sub-Account
shall be transferred to the Mez Payment Escrow Account, (v) sums held in the Operation and
Maintenance Expense Sub-Account shall be transferred to the Operation and Maintenance Expense
Escrow Account and (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 is continuing 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



50









 







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.



     Provided that no Event of Default shall have occurred and is continuing, 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. Intentionally Omitted.



     Section 5.08. Recurring Replacement Reserve Escrow Account. (a) 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 at least five (5) Business Days prior to the due date of any payment relating
to Recurring Replacement Expenditures and not more frequently than once each month, and further
provided that no Event of Default has occurred and is continuing, that there are sufficient funds
available in the Recurring Replacement Reserve Escrow Account and Borrower shall have theretofore
furnished Lender with lien waivers (if the cost incurred in connection therewith is greater than
$25,000), 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.



     (b) In lieu of making deposits into the Recurring Replacement Reserve Sub-Account,
Borrower may deliver an Approved Letter of Credit to Lender in the amount of the Required RRE
Shortfall (as the same may be amended, replaced, extended or drawn down upon pursuant to the
provisions of this Section 5.08, the “Delivered Letter of Credit”). The Delivered Letter
of Credit shall be held in accordance with this Section 5.08 and otherwise constitute security for
the payment of the Debt. On or prior to the thirtieth (30th) day prior to the
expiration of any Delivered Letter of Credit, Borrower shall provide Lender with a replacement to
such Delivered Letter of Credit which shall be an Approved Letter of Credit, and otherwise in the
same form and amount as the Delivered Letter of Credit being replaced or such other form reasonably
approved by Lender. In the event (i) Borrower shall fail to provide Lender with a replacement
Delivered Letter of Credit on or prior to the thirtieth (30th) day prior to the
expiration of any previously existing Delivered Letter of Credit or (ii) the long-term unsecured
debt rating or the short-term unsecured debt rating of the bank issuing the Delivered Letter of
Credit shall be downgraded below “AA-” (or its equivalent) or “A-1” (or its equivalent),
respectively, withdrawn or qualified by any Rating Agency and the letter of credit required to be
delivered hereunder is not replaced within thirty (30) days of receipt of notice of such
downgrading, withdrawal or qualification, Lender may draw on the Delivered Letter of Credit,
deposit all sums received in connection with such draw into the Recurring Replacement Reserve
Sub-Account, and disburse such sums in accordance with Section 5.08 above. Provided no Event of
Default shall have occurred and is continuing, upon Lender’s receipt of a written request from Borrower together with such other
documentation as may be reasonably requested by Lender, Lender shall draw on all or a portion of
the Delivered Letter of Credit, deposit any sums received in connection with such draw into the
Recurring Replacement Reserve Sub-Account, and apply such sums towards the reimbursement of
Borrower for the cost of any Recurring Replacement Expenditures in accordance with the provisions
of Section 5.08 hereof. Upon the occurrence of an Event of Default, Lender may draw on the
Delivered Letter of Credit and apply the sums received towards the payment of Recurring Replacement
Expenditures or towards payment of the Debt or any other charges affecting all or any portion of
the Property, as



51









 







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. Provided that no Event of Default shall have occurred
and is continuing, Borrower may deliver to Lender Dollars in the amount of any Delivered Letter of
Credit and, upon receipt of such Dollars, Lender will return to Borrower the Delivered Letter of
Credit.



     (c) Provided that no Event of Default shall have occurred and is continuing, 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 or cause to be paid all Operating Expenses and extraordinary capital
improvement costs 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 Security Instrument. Any sums
held in the Operation and Maintenance Expense Escrow Account shall be disbursed to Borrower within
five (5) Business Days of receipt by Lender from Borrower of (a) a written request for such
disbursement which shall indicate the Operating Expenses (exclusive of Basic Carrying Costs and any
management fees payable to Borrower, or to any Affiliate of Borrower) and/or extraordinary capital
improvement costs approved in writing by Lender for which the requested disbursement is to pay and
(b) an Officer’s Certificate stating that no Operating Expenses with respect to the Property are
more than sixty (60) days past due; provided, however, in the event that Borrower
legitimately disputes any invoice for an Operating Expense and/or extraordinary capital improvement
costs approved in writing by Lender, and (i) no Event of Default has occurred and is continuing
hereunder, (ii) Borrower shall have set aside adequate reserves for the payment of such disputed
sums together with all interest and late fees thereon, (iii) Borrower has complied with all the
requirements of this Security Instrument relating thereto, and (iv) the contesting of such sums
shall not constitute a default under any other instrument, agreement, or document to which Borrower
is a party, then Borrower may, after certifying to Lender as to items (i) through (iv) hereof,
contest such invoice. Together with each such request, Borrower shall furnish Lender with bills
and all other documents necessary for the payment of the Operating Expenses and/or extraordinary
capital improvement costs approved in writing by Lender which are the subject of such request.
Borrower may request a disbursement from the Operation and Maintenance Expense Escrow Account no
more than one (1) time per calendar month. 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
and/or extraordinary capital improvement costs 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.



     Section 5.10. Rate Cap Agreement. Borrower shall maintain the Rate Cap
Agreement at all times during the term of the Loan and 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 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
five (5) Business Days, replace the Rate Cap Agreement with an




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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.




     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. Provided that
no Event of Default has occurred and is continuing, and no O&M Operative Period has existed for
three (3) consecutive calendar months, Lender shall, upon written request from Borrower, release
all sums contained in the Curtailment Reserve Escrow Account and the Operation and Maintenance
Expense Escrow Account to Borrower. Should an Event of Default occur, the sums on deposit in the
Curtailment Reserve Sub-Account 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 six (6)
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 substantially in compliance with all Legal Requirements, and
Lender shall, within twenty (20) 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 substantially in compliance
with all Legal Requirements, and Lender shall, within twenty (20) 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 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



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an Eligible Account, shall estimate, in Lender’s reasonable discretion, the number
of months required for Borrower to restore the damage caused 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 minus, if the
sum which otherwise would be required to be deposited into the Operation and Maintenance Expense
Sub-Account if a Default Management Period existed, which sum shall be remitted by Lender to
Manager to pay Operating Expenses. 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 Event of 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.
Should an Event of Default occur, 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.



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 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, 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 and 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.



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All Condemnation Proceeds are hereby assigned to
and shall be paid to Lender. With respect to Condemnation Proceeds in an amount in excess of five
percent (5%) of the Allocated Loan Amount, (subject to Borrower’s reasonable approval, except after
the occurrence of an Event of Default, in which event Borrower’s approval shall not be required),
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 sort 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, (ii) a Taking which occurs less
than two (2) years prior to the Maturity Date, (iii) a Taking which Lender is not reasonably
satisfied could be restored within twelve (12) months and at least six (6) months prior to the
Maturity Date or (iv) a Taking of more than fifteen percent (15%) of the reasonably estimated fair
market value of the Property.



     (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, provided
that no Event of Default exists, 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 Release Price with respect to the Property 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:




     (i) first, provided no Event of Default shall have occurred, 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. Borrower shall promptly 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



55









 




Lender has not been reimbursed by Borrower, shall be entitled, as a
first priority out of any Condemnation Proceeds, to reimbursement for all reasonable 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. 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.



     (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(a) and (b) hereof. Borrower agrees to deliver to Lender, within thirty
(30) days after Lender’s request, a true and complete copy of every Lease.



     (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 during the continuance of 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, during the continuance
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 Space Leases entered into after the date hereof shall provide that they are subordinate to this
Security Instrument and that the lessees thereunder attorn to Lender. Borrower shall deliver
copies of all



56









 




Leases, amendments, modifications and renewals thereof to Lender. All proposed Leases
for the Property shall be
subject to the prior written approval of Lender, not to be unreasonably withheld, conditioned
or delayed, 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 leases conform with
the requirements of this Section 7.02; (ii) the proposed Space Lease is not a Major Space Lease and
the space to be leased pursuant to such proposed lease together with any space leased or to be
leased to an Affiliate of the tenant thereunder does not exceed 10,000 square feet; and (iii) the
term of the proposed lease inclusive of all extensions and renewals, does not exceed ten (10)
years.




     (b) Borrower (i) shall or shall cause Operating Tenant to 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 Major Space Leases as security for the
Debt; (ii) shall promptly send copies to Lender of all notices of default which Borrower shall
receive under the Major Space 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 Major Space 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 in a manner
inconsistent with the Approved Manager Standard; (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 cancel or terminate or
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; and (xi) 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 shall be held in accordance with all Legal Requirements.
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.



     (d) If requested by Lender, Borrower shall furnish, or shall cause the applicable
lessee to furnish, to Lender financial data and/or financial statements in accordance with
Regulation AB for any lessee of the Property if, in connection with a Securitization, Lender
expects there to be, with respect to such lessee or any group of affiliated lessees, a
concentration within all of the mortgage loans included or expected to be included, as applicable,
in such Securitization such that such lessee or group of affiliated lessees would constitute a
Significant Obligor; provided, however, that in the event the related Space Lease does not require
the related lessee to provide the foregoing information, Borrower shall use commercially reasonable
efforts to cause the applicable lessee to furnish such information.



     (e) Borrower covenants and agrees with Lender that (i) the Property will be managed
at all times by an Approved Manager pursuant to the management agreement approved by Lender (the
“Management Agreement”), such approval not to be unreasonably withheld or delayed, (ii)
after Borrower has knowledge of a fifty percent (50%) or more change in control of the ownership of
Manager, Borrower will promptly give Lender notice thereof (a “Manager Control Notice”) and
(iii) the Management Agreement may be terminated by Lender at any time (A) for cause to the extent
provided in the Management Agreement (including, but not limited to, Manager’s gross negligence,
misappropriation of funds, willful misconduct or fraud) following the occurrence of an Event of
Default of the type set forth in Section 13.01(a) through (c), or (B) to the extent provided in the
Management Agreement, following the receipt of a Manager Control Notice and a substitute Approved
Manager shall be appointed by



57









 




Borrower. Notwithstanding the foregoing, transfers of publicly
traded stock of Manager 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 sale of Manager or substantially all of the assets of Manager shall not require the
giving of a Manager Control Notice. Borrower may from time to time appoint a successor manager to
manage the Property, provided that any such successor manager shall be an Approved Manager.
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) Borrower shall not enter into any new or replacement Franchise Agreement without
obtaining the prior written consent of Lender, such consent not to be unreasonably withheld,
conditioned or delayed (provided that any Franchise Agreement which is on a form in all material
respects (including, without limitation, all fees due thereunder) the same as the form of any
Franchise Agreement which is contained in the uniform franchise offering circular for any Approved
Franchisor shall be deemed an acceptable form), and shall (i) pay or shall cause to be paid all
sums required to be paid by Borrower under any Franchise Agreement and Operating Lease, (ii)
diligently perform and observe all of the material terms, covenants and conditions of any Franchise
Agreement on the part of Borrower to be performed and observed to the end that all things shall be
done which are necessary to keep unimpaired the rights of Borrower under any Franchise Agreement
and Operating Lease, (iii) promptly notify Lender of the giving of any notice to Borrower of any
material default by Borrower in the performance or observance of any of the terms, covenants or
conditions of and Franchise Agreement or Operating Lease on the part of Borrower to be performed
and observed and deliver to Lender a true copy of each such notice, and (iv) promptly deliver to
Lender a copy of each financial statement, business plan, capital expenditures plan, report and
estimate received by it under the Franchise Agreement or the Management Agreement or the Operating
Lease. Borrower shall not, without the prior consent of the Lender, such consent not to be
unreasonably withheld, conditioned or delayed, surrender any Franchise Agreement or Operating Lease
or terminate or cancel any Franchise Agreement or modify, change, supplement, alter or amend any
Franchise Agreement or Operating Lease, in any material respect, either orally or in writing, and
Borrower hereby assigns to Lender as further security for the payment of the Debt and for the
performance and observance of the terms, covenants and conditions of this Security Instrument, all
the rights, privileges and prerogatives of Borrower to surrender any Franchise Agreement or
Operating Lease or to terminate, cancel, modify, change, supplement, alter or amend any Franchise
Agreement or Operating Lease in any respect, and any such surrender of any Franchise Agreement or
termination, cancellation, modification, change, supplement, alteration or amendment of any
Franchise Agreement or Operating Lease without the prior consent of Lender shall be void and of no
force and effect, provided, however, Borrower may terminate any Franchise Agreement if Borrower
enters into a new Franchise Agreement with an Approved Franchisor pursuant to a Franchise Agreement
which is reasonably acceptable to Lender. If Borrower shall default in the performance or
observance of any material term, covenant or condition of any Franchise Agreement or Operating
Lease on the part of Borrower to be performed or observed, then, without limiting the generality of
the other provisions of this Security Instrument, and without waiving or releasing Borrower from
any of its obligations hereunder, Lender shall have the right, but shall be under no obligation, to
pay any sums and to perform any act or take any action as may be appropriate to cause all the
terms, covenants and conditions of any Franchise Agreement or Operating Lease on the part of
Borrower to be performed or observed to be promptly performed or observed on behalf of Borrower, to
the end that the rights of Borrower in, to and under any Franchise Agreement and Operating Lease
shall be kept unimpaired and free from default. Lender and any Person designated by Lender shall
have, and are hereby granted, the right to enter upon the Property at any time and from time to
time for the purpose of taking any such action. If the franchisor under any Franchise Agreement or
lessee under an Operating Lease shall deliver to Lender a copy of any notice sent to Borrower of
default under any Franchise Agreement or Operating Lease, as applicable, such notice shall
constitute full protection to Lender for any action to be taken by Lender in good faith, in
reliance thereon. Borrower shall, from time to time, use its best efforts to obtain from the
franchisor or lessee under any Franchise Agreement such certificates of estoppel with respect to
compliance by Borrower with the terms of any Franchise Agreement as may be requested by Lender.
Borrower shall exercise each individual option, if any, to extend or renew the term of any
Franchise Agreement within four (4) months of the last day upon which any such option may be
exercised, unless Lender consents to the non-renewal of such Franchise Agreement in writing, and
Borrower hereby expressly authorizes and appoints Lender its attorney-in-fact to exercise any such
option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and
shall be deemed to be



58









 




coupled with an interest, provided, however, that Lender shall not exercise
such power of attorney unless and until Borrower fails to take the actions required herein.




     (g) Intentionally Omitted.



     (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 and in
compliance in all material respects with any Franchise Agreement and Operating Lease.



     (i) Borrower shall maintain or cause Operating Tenant to 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.



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



     (k) Borrower shall not permit any Equipment or other personal property to be removed
from the Property unless the removed item is consumed or sold in the ordinary course of business,
removed temporarily for maintenance and repair, or, if removed permanently, replaced by an article
of equivalent suitability and not materially less value, owned by Borrower free and clear of any
lien.



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) take any steps whatsoever to convert the Property, or
any portion thereof, to a condominium or cooperative form of ownership.



     (b) Borrower shall, or shall cause Operating Tenant to, 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 necessary 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 impair the value of the Property or
increase in any respect the risk of fire or other hazard to the Property. 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. 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 other Persons under Property Agreements, Borrower may fulfill its obligations hereunder
by causing such tenants 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,



59









 




construction, restoration, addition or alteration, 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 together with Equipment owned
by Operating Tenant and Manager (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 and/or Operating Tenant and/or Manager
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, 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 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; 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. 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, except for a Permitted Encumbrance, 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. 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, other than Permitted
Transfers, nor permit any Transfer, other than Permitted Transfers, without the prior written
consent of Lender, which consent Lender may withhold in its sole and 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.



     Section 9.03. Due on Sale. Lender may declare the Debt immediately due and
payable upon any Transfer, other than Permitted Transfers, or further encumbrance without Lender’s
consent without regard to



60









 




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.




ARTICLE X:  certificates




     Section 10.01. Estoppel Certificates. (a) After request by Lender,
Borrower, within fifteen (15) days and at its 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) any offsets or defenses to the
payment of the Debt that Borrower shall have knowledge of, and if any are alleged, the nature
thereof, (v) that the Note, this Security Instrument and the other Loan Documents have not been
modified or if modified, giving particulars of such modification and (vi) that to Borrower’s best
knowledge, 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 fifteen (15) days after written request by Borrower, Lender shall furnish
to Borrower a written statement confirming the amount of the Debt, the maturity date of the Note
and the date to which interest has been paid.



     (c) At Lender’s request Borrower shall use all reasonable efforts to obtain estoppel
certificates from tenants in form and substance reasonably acceptable to Lender.



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 Federal Express or other nationally recognized overnight
delivery service, as follows and shall be deemed given (a) when delivered personally, (b) on the
date of sending by telefax if sent during normal business hours on a Business Day (otherwise on the
next Business Day) provided that any notice given by telefax is also given by at least one other
method provided herein, or (c) one (1) Business Day after being deposited with Federal Express or
such other nationally recognized delivery service:



	 	 	 	 	 
	 

	 	If to Lender:
	 	Wachovia Bank, National Association
	 

	 	 	 	Commercial Real Estate Services
	 

	 	 	 	8739 Research Drive URP 4
	 

	 	 	 	NC 1075
	 

	 	 	 	Charlotte, North Carolina 28262
	 

	 	 	 	Loan Number: 502859548
	 

	 	 	 	Attention: Portfolio Management
	 

	 	 	 	Fax No.: (704) 715-0036
	 
	 	 	 	 
	 

	 	with a copy to:
	 	Proskauer Rose llp
	 

	 	 	 	1585 Broadway
	 

	 	 	 	New York, New York 10036
	 

	 	 	 	Attn: David J. Weinberger, Esq.
	 

	 	 	 	Fax No.: (212) 969-2900
	 
	 	 	 	 
	 

	 	If to Borrower:
	 	c/o Ashford Hospitality Trust, Inc.
	 

	 	 	 	14185 Dallas Parkway, Suite 1100
	 

	 	 	 	Dallas, Texas 75254-4308
	 

	 	 	 	Attn: David Brooks






61









 






	 	 	 	 	 
	 

	 	 	 	Facsimile: (972) 778-9270
	 

	 	 	 	E-mail: dbrooks@ahreit.com
	 
	 	 	 	 
	 

	 	with a copy to:
	 	Akin Gump Strauss Hauer & Feld LLP
	 

	 	 	 	590 Madison Avenue
	 

	 	 	 	New York, New York 10022-2524
	 

	 	 	 	Attn: Peter Miller, Esq.
	 

	 	 	 	Facsimile: (212) 872-1002
	 

	 	 	 	E-mail: pamiller@akingump.com,





or such other address as either Borrower 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 and its 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 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 or
with respect to matters which first occur after Lender has taken title to the Property through a
foreclosure or delivery of a deed in lieu thereof. 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



62









 




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 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 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 or prepayment premium, if any, due under the Note 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; provided, that the failure of any such amount to be paid when due shall
not be an Event of Default if adequate funds were on deposit in the relevant Sub-Account (or would
have been on deposit therein if Lender had timely allocated such funds thereto from the Central
Account and/or the Collection Account in accordance with the provisions of Article V hereof);



     (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) Business Days after Lender delivers written notice to Borrower that
same is due and payable thereunder or hereunder;



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



     (e) if (i) Borrower fails to deliver to Lender the original insurance policies or
certificates as herein provided (provided, however, that if the insurance policies required by this
Security Instrument are maintained in



63









 




full force and effect, then Borrower shall have five (5)
Business Days after notice from Lender of Borrower’s failure to deliver the original policies or
certificates (whichever has not been delivered as required) to deliver same to Lender before such
failure becomes an Event of Default) or (ii) if the insurance policies required hereunder are not
kept in full force and effect as herein provided (no notice or cure period applies to this item
(ii));




     (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; provided, however, that if such representation or warranty which was false or misleading
in any material respect is, by its nature, curable and is not reasonably likely to have a Material
Adverse Effect, and such representation or warranty was not, to the best of Borrower’s knowledge,
false or misleading in any material respect when made, then the same shall not constitute an Event
of Default unless Borrower has not cured the same within five (5) Business Days after receipt by
Borrower of notice from Lender in writing of such breach;



     (h) if Borrower, Operating Tenant, Guarantor or any general partner of Borrower,
Operating Tenant 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, Operating Tenant, Guarantor or
any general partner of Borrower, Operating Tenant or Guarantor shall be appointed or if Borrower,
Operating Tenant, Guarantor or their respective 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, Operating Tenant, Guarantor or their respective general partners or if
any proceeding for the dissolution or liquidation of Borrower, Operating Tenant, 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, Operating Tenant,
Guarantor or their respective general partners, as applicable, upon the same not being discharged,
stayed or dismissed within ninety (90) days or if Borrower, Operating Tenant, 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 fifteen (15) days unless contested in accordance with the terms
hereof;



     (l) if Borrower discontinues the operation of the Property or any material part
thereof for reasons other than repair or restoration arising from a casualty or condemnation or any
renovation project 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;



64









 





     (n) if Borrower 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
state statute;



     (o) if a default by Borrower beyond applicable notice and grace periods, if any,
occurs under the Franchise Agreement or Operating Lease, or if the Franchise Agreement or Operating
Lease is terminated, or if, without Lender’s prior written consent, there is a material change to
the Franchise Agreement or Operating Lease unless, with respect to any default under or
termination of the Franchise Agreement, Borrower enters into a replacement Franchise Agreement
within thirty (30) days of the termination or receipt of notice of any such default, as applicable,
in accordance with the terms hereof;



     (p) if an Event of Default shall occur and be continuing under any of the other
Cross-collateralized Mortgages;



     (q) if Borrower is a tenancy-in-common, if any TIC brings a partition action without
first offering its interest to the other TICs or if, upon the making of such offer, one or more of
the TICs does not purchase the tenant-in-common interest of the TIC which desires to bring a
partition action;



     (r) if Borrower is a tenancy-in-common, if the TIC Agreement is modified without the
prior written consent of Lender or if the Person appointed in the TIC Agreement as manager is
replaced or removed without obtaining the prior written consent of Lender; or



     (s) 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 (r) 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 (r) above.



     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 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



65









 





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 the Property or
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 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 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, 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 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.




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



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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 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 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 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, 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 under or by virtue of
this Section 13.02, Lender, 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 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.



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     (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.



     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. Notwithstanding the foregoing, Lender
acknowledges that the Loan may be prepaid at any time in accordance with the terms of Section 15.01
hereof.



     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.



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     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 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.



     Section 13.09. Late Payment Charge. If any portion of the Debt (other than
the principal portion of the Debt due on Maturity) is not paid in full on or before the day on
which it is due and payable hereunder, 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.



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     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 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.



     (b) No Waiver or Release. The failure of Lender 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 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



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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 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, 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 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 reasonable 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 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
immediate 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) At any time, Borrower may prepay the Loan, in whole or in part, as of the last
day of an Interest Accrual Period, it being acknowledged that Borrower may prepay the Loan on a day
other than the last day of an Interest Accrual Period, provided that Borrower pays all interest
which would otherwise be due to Lender through the end of such Interest Accrual Period, in
accordance with the following provisions:




     (i) Lender shall have received from Borrower, not less than thirty (30)
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 (which notice shall be revocable
by Borrower up to two (2) times during the term of the Loan by giving Lender not less than
one (1) Business Day prior written notice of such revocation, provided that Borrower shall
remain obligated to pay Lender’s costs and expenses including, without limitation, breakage
costs incurred by Lender in connection with such revocation).



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     (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 not less than
$25,000 and shall be in whole multiples of $1,000 in excess thereof.




     (iv) No Event of Default shall have occurred and be continuing.




     (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 regularly
scheduled installments of principal and interest becoming due under the Note.




     (vi) 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, this Security Instrument or any of the other Loan Document, equal to .70% of the
Principal Amount being repaid if such prepayment occurs prior to the Payment Date occurring
in November, 2007 and .50% of the Principal Amount being prepaid if the prepayment occurs on
or after the Payment Date occurring in November, 2007 but prior to the Payment occurring in
April, 2008. The Loan may be prepaid after the Payment Date occurring in April, 2008
without such additional fee or charge, provided, however, that a portion of the Principal
Amount not to exceed $56,857,500 in the aggregate may be prepaid at any time without payment
of any sum otherwise due under this clause 15.01(b)(vi) and a portion of the Principal
Amount up to $170,232,000 in the aggregate may be prepaid on or prior to the Payment Date
occurring in May, 2007 without payment of any sums otherwise due under this clause
15.01(b)(vi) if the Loan is prepaid with the proceeds of a fixed rate mortgage loan secured
by one or more Cross-collateralized Properties made by Wachovia Bank, National Association.



     Section 15.02. Release of Property. If Borrower prepays all or a portion of
the Loan pursuant to Section 15.01 hereof or if Lender applies 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
Release Price Percentage multiplied by the Allocated Loan Amount with respect to the
Cross-collateralized Property which is the subject of the Release, (ii) such amount as would cause
the Debt Yield subsequent to the contemplated Release to be equal to or greater than the Debt Yield
prior to the contemplated Release and (iii) such amount as would cause the Debt Yield subsequent to
the contemplated Release to be no less than the Debt Yield as of the Closing Date (the “Release
Price”).



     (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.



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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 or in the Environmental Report, there is no asbestos in, on, over, or under all
or any portion of the fire-proofing or any other portion of the Property.



     (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 or as permitted by applicable Legal Requirements.



     (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



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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 reasonably 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 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) to Borrower’s knowledge and except as
disclosed in the Environmental Report 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 in amounts which are required by applicable Legal Requirements
to be reported to and Governmental Authority 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 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, to Borrower’s knowledge, 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.



     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’



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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 (A) Lender’s
willful misconduct or gross negligence, or (B) Hazardous Materials initially placed in, on or under
the Property after Lender takes title to the Property after foreclosure or delivery of a deed in
lieu thereof. 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 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
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.



ARTICLE XVII: assignments




     Section 17.01. Participations and Assignments. Lender shall 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 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



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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 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.



     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 the Loan
Documents specifically and expressly provide for the giving of notice by Lender to Borrower and
except with respect to matters for which Borrower is not, pursuant to applicable Legal
Requirements, permitted to waive the giving of notice.



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     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 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



77









 







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 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 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



78









 




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 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
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.



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     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 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. Notwithstanding anything herein to the contrary, Borrower shall be authorized to provide
information relating to the Loan Documents or the financing evidenced by the Loan Documents, or to
Lender or to any of its Affiliates, 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 without limiting the foregoing to issue press releases and make
Form 8-K and other securities filings containing the above-described information as it or its
counsel reasonably deems required by law. 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 ten (10)
Business Days after Lender’s written request



80









 




therefor, at Lender’s sole cost and expense, deliver
opinions in form and substance and delivered by counsel reasonably acceptable to Lender and each
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 ten
(10) Business Day period shall constitute an “Event of Default” hereunder.




     Section 18.30. Cooperation with Rating Agencies; etc. Borrower covenants
and agrees that in the event the Loan is to be included as an asset of a Securitization, Borrower
shall, at the sole cost and expense of Lender, (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 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 interest 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
materially 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 supplied by or on behalf of Borrower 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
supplied by or on behalf of Borrower 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, deliver as soon as is reasonably practicable (a) audited
financial statements and related documentation prepared by an Independent certified public
accountant that satisfy securities laws and requirements for use in a public registration statement
(which may include up to three (3) years of historical audited financial statements) and (b) if, at
the time one or more Disclosure Documents are being prepared in connection with a Securitization,
Lender expects that Borrower alone or Borrower and one or more of its Affiliates collectively, or
the Property alone or the Property and any other parcel(s) of real property, together with
improvements thereon and personal property related thereto, that is “related”, within the meaning
of the definition of Significant Obligor, to the Property (a “Related Property”)
collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request (i) the
selected financial data or, if applicable, net operating income, required under Item 1112(b)(1) of
Regulation AB and meeting the requirements thereof, if Lender expects that the principal amount of
the Loan, together with any loans made to an Affiliate of Borrower or secured by a Related Property
that is included in a Securitization with the Loan (a “Related Loan”), as of the cut-off
date for such Securitization may, or if the principal amount of the Loan together with any Related
Loans as of the cut-off date for such Securitization and at any time during which the Loan and any
Related Loans are included in a Securitization does, equal or exceed ten percent (10%) (but less
than twenty percent (20%)) of the aggregate principal amount of all



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mortgage loans included or
expected to be included, as applicable, in the Securitization or (ii) the financial statements
required under Item 1112(b)(2) of Regulation AB and meeting the requirements thereof, if Lender
expects that the principal amount of the Loan together with any Related Loans as of the cut-off
date for such Securitization may, or if the principal amount of the Loan together with any Related
Loans as of the cut-off date for such Securitization and at any time during which the Loan and any
Related Loans are included in a Securitization does, equal or exceed twenty percent (20%) of the
aggregate principal amount of all mortgage loans included or expected to be included, as
applicable, in the Securitization. Such financial data or financial statements shall be furnished
to Lender as soon as reasonably practicable but in all events within twenty(20) Business Days after
notice from Lender in connection with the preparation of Disclosure Documents for the
Securitization and, with respect to the data or financial statements required pursuant to clause
(b) hereof, (A) not later than thirty (30) days after the end of each fiscal quarter of Borrower
and (B) not later than seventy-five (75) days after the end of each Fiscal Year; provided, however,
that Borrower shall not be obligated to furnish financial data or financial statements pursuant to
clauses (A) or (B) of this sentence with respect to any period for which a filing pursuant to the
Securities Exchange Act of 1934 in connection with or relating to the Securitization is not
required.




     Section 18.32. Exculpation. Notwithstanding anything in this Security
Instrument 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 or
any Person holding a direct or indirect interest in Borrower or (a) if Borrower or any of its
direct or indirect owners is a partnership, its or their direct or indirect constituent partners or
any of their respective partners, (b) if Borrower or any of its direct or indirect owners is a
trust, its or their beneficiaries or any of their respective Partners (as hereinafter defined), (c)
if Borrower or any of its direct or indirect owners is a corporation, any of its or their direct or
indirect shareholders, directors, principals, officers or employees, or (d) if Borrower or any of
its direct or indirect owners is a limited liability company, any of its or their direct or
indirect members (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, including, without limitation, 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) against Borrower solely for the purpose of
enabling Lender to realize upon (i) Borrower’s interest in the Property, (ii) the Rent to the
extent received by Borrower during the existence of an Event of Default (all Rent covered by this
clause (ii) being hereinafter referred to as the “Recourse Distributions”) and not applied
towards Debt Service or the operation or maintenance of the Property and (iii) any other collateral
then subject to the Loan Documents (the collateral described in the foregoing clauses (i) — (iii)
is hereinafter referred to as 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 during the existence of an Event of Default the cure
of which has not been accepted by Lender; (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 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 to the extent and for the obligations guaranteed in the Guaranty; (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 a monetary judgment against Borrower with respect to
fraud or material misrepresentation by Borrower, or any Affiliate of Borrower 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 Guarantor to the extent of
Guarantor’s liability under the Guaranty delivered by Guarantor with respect to same; (g) impair
the right of Lender to bring suit for a monetary judgment to obtain the Recourse Distributions
received by Borrower including, without limitation, the right to bring suit for a monetary
judgement to proceed against any Guarantor to the extent of Guarantor’s liability under any
guaranty delivered by Guarantor and the foregoing provisions shall not modify, diminish or
discharge the liability of Borrower or Guarantor with respect to same; (h) impair the right of
Lender to bring suit for a monetary judgment against Borrower 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 Guarantor to the extent of Guarantor’s
liability under any guaranty delivered by Guarantor with respect to same; (i) impair the right of
Lender to obtain Loss Proceeds due to Lender pursuant to this Security Instrument; (j) impair the
right of Lender to enforce the provisions of Sections 2.02(g) (other than the provisions of clause
(vii) thereof), 12.01, 16.01 or 16.02, 18.29, 18.30 or 18.31, 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 with respect to any obligation set forth in said Sections; (k) prevent or
in any way hinder Lender



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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; (l) impair the right of Lender to bring suit
for a monetary judgment against Borrower with respect to any misapplication or conversion of Loss
Proceeds, and the foregoing provisions shall not modify, diminish or discharge the liability of
Borrower or Guarantor to the extent of Guarantor’s liability under any guaranty delivered by
Guarantor with respect to same; (m) 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 (m) shall be enforceable against Borrower and
Guarantor only to the extent of any of the Default Collateral; (n) impair the ability of Lender to
bring suit for a monetary judgment against Borrower with respect to arson or physical waste to or
of the Property or damage to the Property resulting from the gross negligence or willful misconduct
of Borrower or, to the extent that there is sufficient cash flow, failure to pay any Imposition, or
in lieu thereof, deposit a sum equal to any Impositions into the Basic Carrying Costs Sub-Account;
(o) impair the right of Lender to bring a suit for a monetary judgment against Borrower 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; (p) 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; (q) impair the
right of Lender to bring suit for monetary judgment against Borrower with respect to 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; (r) impair
the right of Lender to bring suit for a monetary judgment against Borrower in the event of a
Transfer in violation of the provisions of Article IX hereof; (s) 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 (30) days prior
written notice; (t) in the event Borrower is a tenancy-in-common, impair the right of Lender to
bring suit for monetary judgment against any TIC which commences a partition action; (u) in the
event Borrower is a tenancy-in-common, impair the right of Lender to bring suit for monetary
judgment against any TIC or Guarantor in the event the TIC Agreement is modified or amended without
obtaining the prior written consent of Lender or if the Person appointed in the TIC Agreement as
manager is replaced or removed without the prior written consent of Lender; or (v) impair the right
of Lender to bring suit for a monetary judgment in the event that Borrower changes its name or
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 (A) filed by Borrower or Guarantor or (B) filed
against Borrower or Guarantor and consented to or acquiesced in by Borrower or Guarantor or if any
Affiliate of Borrower or Guarantor, or if Borrower or Guarantor or any Affiliate of either of them
shall institute any proceeding for Borrower’s dissolution or liquidation, or Borrower or Guarantor
shall make an assignment for the benefit of creditors, or (b) Borrower or any Affiliate contests in
bad faith or in any material way interferes with in bad faith, directly or indirectly
(collectively, a “Contest”), any foreclosure action, UCC sale or other material remedy
exercised by Lender upon the occurrence of an Event of Default whether by making any motion,
bringing any counterclaim (other than a compulsory counterclaim), claiming any defense, seeking any
injunction or other restraint, commencing any action, or otherwise in bad faith (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.




     Section 18.33. Intentionally Omitted.



     Section 18.34.  Intentionally Omitted.



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     Section 18.35. Mezzanine Loan Option. (a) Lender shall have the right at
any time to divide the Loan into two or more parts (the “Mezzanine Option”): a “mortgage
loan” and one or more “mezzanine loans.” The principal amount of the mortgage loan plus the
principal amount of the mezzanine loan(s) shall equal the outstanding principal balance of the Loan
immediately prior to the creation of the mortgage loan and the mezzanine loan(s). In effectuating
the foregoing, Lender will make one or more loans to one or more entities that will be the direct
or indirect equity owner(s) of Borrower as described in Section 18.35(b) (collectively, the
“Mezzanine Borrower”). The Mezzanine Borrower will contribute the amount of the mezzanine
loan(s) to Borrower (in its capacity as borrower under the mortgage loan, “mortgage borrower”) and
the mortgage borrower will apply the contribution to pay down the Loan to the mortgage loan amount.
The mortgage loan and the mezzanine loan(s) will be on the same terms and subject to the same
conditions set forth in the Loan Documents except as follows. The mezzanine loan(s) shall be made
pursuant to Lender’s standard mezzanine loan documents.



     (b) Lender shall have the right to establish different interest rates and debt
service payments for the mortgage loan and the mezzanine loan(s) and to require the payment of the
mortgage loan and the mezzanine loan(s) in such order of priority as may be designated by Lender;
provided, that (i) the total loan amounts for the mortgage loan and the mezzanine loan(s) shall
equal the amount of the Loan immediately prior to the creation of the mortgage loan and the
mezzanine loan(s), (ii) the weighted average interest rate of the mortgage loan and the mezzanine
loan(s) shall on the date created equal the interest rate which was applicable to the Loan
immediately prior to creation of the mortgage loan and mezzanine loan(s) and (iii) the debt service
payments on the mortgage loan note and the mezzanine loan note(s) shall on the date created equal
the debt service payment which was due under the Loan immediately prior to creation of a mortgage
loan and a mezzanine loan(s).



     (c) The Mezzanine Borrower shall be a special purpose, bankruptcy remote entity
pursuant to applicable Rating Agency criteria and shall own directly or indirectly one hundred
percent (100%) of the mortgage borrower. The security for the mezzanine loan(s) shall be a pledge
of one hundred percent (100%) of the direct and indirect ownership interests in the mortgage
borrower.



     (d) Borrower shall cooperate with all reasonable requests of Lender in order to
convert the Loan into a mortgage loan and one or more mezzanine loans and shall execute and deliver
such documents as shall reasonably be required by Lender in connection therewith, including,
without limitation, the delivery of non-consolidation, enforceability, authorization and execution
opinions and an “Eagle 9” or “UCC plus” (or equivalent) UCC insurance policy and the modification
of organizational documents and loan documents and the transfer of the membership interest in
Borrower to the Mezzanine Borrower.



     It shall be an Event of Default if Borrower fails to cooperate in all reasonable respects in
effectuating any of the terms, covenants or conditions of this Section 18.35 after expiration of
ten (10) Business Days notice of non-cooperation.



     Section 18.36. Component Notes. Lender, 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 execute and deliver “component” notes (including senior and junior
notes), which notes may be paid in such order of priority as may be designated by Lender, provided
that (a) the aggregate principal amount of such “component” notes 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 “component” notes shall on the date created equal the
interest rate which was applicable to the Loan immediately prior to the creation of such
“component” notes (it being acknowledged by Borrower that if an Event of Default occurs during the
term of the Loan, whether or not it is subsequently cured, the weighted average interest rates of
the “component” notes may increase (i.e. the Loan may have “rate creep”)), (c) the debt service
payments on all such “component” notes shall on the date created equal the debt service payment
which was and would be due under the Loan immediately prior to the creation of such component notes
(it being acknowledged by Borrower that if an Event of Default occurs during the term of the Loan,
whether or not it is subsequently cured, the weighted average interest rates of the “component”
notes may increase (i.e. the Loan may have “rate creep”)) and (d) the other terms and provisions of
each of the “component” notes shall be identical in substance and substantially similar in form to
the Loan Documents. Borrower shall cooperate with all reasonable



84









 




requests of Lender in order to
establish the “component” notes 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 18.36 after the expiration of ten (10) Business Days after notice thereof.




     Section 18.37. Certain Matters Relating to Property Located in the State of
Alabama. With respect to the Property which is located in the State of Alabama,
notwithstanding anything contained herein to the contrary:



     (a) The money, property or services that are the subject of the transactions
provided for in the Loan Documents are not primarily for personal, family or household purposes as
contemplated by Section 5-19-1(2) of the Code of Alabama 1975, as amended.



     (b) Any time after an Event of Default, this Security Instrument shall be subject to
foreclosure and may be foreclosed as provided by law in case of past-due mortgages, and Lender
shall be authorized, at its option, whether or not possession of the Property is taken, to sell the
Property (or such part of parts thereof as Lender may from time to time elect to sell) under the
power of sale which is hereby given to Lender, at public outcry, to the highest bidder for cash, at
the front or main door of the courthouse of the county in which the Premises to be sold, or a
substantial or material part thereof, is located, after first giving notice by publication one a
week for three successive weeks of the time, place and terms of such sale, together with a
description of the Property to be sold, by publication in some newspaper published in the county or
counties in which the Premises to be sold is located. If there is Premises to be sold in more than
one county, publication shall be made in all counties where the Premises to be sold is located, but
if no newspaper is published in any such county, the notice shall be published in a newspaper
published in an adjoining county for three successive weeks. The sale shall be held between
the hours of 11:00 a.m. and 4:00 p.m. on the day designated for the exercise of the power of sale
hereunder. Lender may bid at any sale held under this Security Instrument and may purchase the
Property, or any part thereof, if the highest bidder therefor. The purchaser at any such sale
shall be under no obligation to see to the proper application of the purchase money. At any sale
all or any part of the Property, real, personal, or mixed, may be offered for sale in parcels or en
masse for one total price, and the proceeds of any such sale en masse shall be accounted for in one
amount without distinction between the items included therein and without assigning to them any
proportion of such proceeds, Borrower hereby waiving the application of any doctrine of marshalling
or like proceeding. In case Lender, in the exercise of the power of sale herein given, elects to
sell the Property in parts or parcels, sales thereof may be held from time to time, and the power
of sale granted herein shall not be fully exercised until all of the Property not previously sold
shall have been sold or all the Debt shall have been paid in full and this Security Instrument
shall have been terminated as provided herein. In case of any sale of the Property as authorized
by this paragraph, all prerequisites to the sale shall be presumed to have been performed, and in
any conveyance given hereunder all statements of facts, or other recitals therein made, as to the
nonpayment of any of the Debt or as to the advertisement of sale, or the time, place and manner of
sale, or as to any other fact or thing, shall be taken in all courts of law or equity as rebuttably
presumptive evidence that the facts so stated or recited are true.



     (c) This Security Instrument shall be effective as a financing statement filed as a
fixture filing for purposes of Article 9 of the Uniform Commercial Code. The fixture filing covers
all goods that are or are to become affixed to the Realty. The goods are described by item or type
in the granting clauses hereof. Borrower is the debtor, and Lender is the secured party. The
names of the debtor (Borrower) and the secured party (Lender) are given in the first paragraph of
this Security Instrument. This Security Instrument is signed by the debtor (Borrower) as a fixture
filing. The mailing address of Lender set out in the first paragraph of this Security Instrument
is an address of the secured party from which information concerning the security interest may be
obtained. The mailing address of the Borrower set out in the first paragraph of this Security
Instrument is a mailing address for the debtor. A statement indicating the types, or describing
the items, of collateral is set forth in this Section 18.37 and in the granting clauses of this
Security Instrument. The real estate to which the goods are or are to be affixed is described in
Exhibit A. The Borrower is a record owner of the real estate.



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     (d) This Security Instrument is given to secure the Debt; provided, however, that
notwithstanding anything to the contrary contained herein: (i) the maximum amount of the principal
obligations secured by this Security Instrument (the “Principal Obligations”) shall not
exceed the Initial Allocated Loan Amount for the Property multiplied by two (2) (the “Maximum
Principal Amount”); (ii) the Maximum Principal Amount of the Principal Obligations secured by
this Security Instrument shall be deemed to be the first Principal Obligations to be advanced and
the last Principal Obligations to be repaid; (iii) the security afforded by this Security
Instrument for the Debt shall not be reduced by any payments or other sums applied to the reduction
of the Debt so long as the total amount of the outstanding Principal Obligations exceeds the
Maximum Principal Amount and thereafter shall be reduced only to the extent that any such payments
and other sums are actually applied by Lender, in accordance with the Loan Documents, to reduce
the outstanding Principal Obligations to an amount less than the Maximum Principal Amount; and (iv)
the limitation contained in this Section on the Maximum Principal Amount shall only pertain to
Principal Obligations and shall not be construed as limiting the amount of interest, fees,
expenses, indemnified amounts and other Debt secured hereby that are not Principal Obligations, it
being the intention of the parties to this Security Instrument that this Security Instrument shall
secure any Principal Obligations remaining unpaid at the time of foreclosure up to the Maximum
Principal Amount, plus interest thereon, all costs of collateral and all other amounts (except
Principal Obligations in excess of the Maximum Principal Amount) included in the Debt.



     (e) The date of this Security Instrument is intended as a date for the convenient
identification of this Security Instrument and is not intended to indicate that this Security
Instrument was executed and delivered on that date.



     (f) The “NOW THEREFORE” clause is amended by deleting the words “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 Lender, forever, with power of sale,” and inserting the following in its place: “Borrower
has granted, bargained, sold and conveyed unto the Lender and by these presents does hereby grant,
bargain, sell and convey unto the Lender, forever, with power of sale, and has granted and by these
presents does hereby grant to the Lender, a security interest in,”.



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



     (a) It is agreed that, in addition to existing indebtedness, any future advances
made by the then holder of the Note to or for the benefit of Borrower or Borrower’s permitted
assignees, whether such advances are obligatory or are made at the option of Lender, or otherwise,
at any time within twenty (20) years from the date of this Security Instrument, with interest
thereon at the rate agreed upon at the time of each additional loan or advance, shall be equally
secured with and have the same priority as the Debt and be subject to all of the terms and
provisions of this Security Instrument, whether or not such additional loan or advance is evidenced
by a promissory note of Borrower and whether or not identified by a recital that it is secured by
this Security Instrument; provided that, although the total amount of the indebtedness that may be
secured may decrease to zero from time to time or may increase from time to time, the aggregate
amount of outstanding Debt so secured at any one time shall not exceed the sum of the Loan Amount
multiplied by two (2), plus interest and disbursements made for the payment of taxes, levies or
insurance on the Property with interest on such disbursements. It is understood and agreed that
this future advance provision shall not be construed to obligate Lender to make any such additional
loans or advances. It is further agreed that any additional note or notes executed and delivered
under this future advance provision shall be included in the words “Note” or “Debt” wherever either
appears in the context of this Security Instrument. Borrower, for itself and its successors in
title and its successors and permitted assigns, hereby expressly waives and relinquishes any rights
granted under Section 697.04 of the Florida Statutes, or otherwise, to limit the amount of
indebtedness that may be secured by this Security Instrument at any time during the term of this
Security Instrument. Borrower further covenants not to file for record any notice limiting the
maximum principal amount that may be secured by this Security Instrument and agrees that any such
notice, if filed, shall be null and void; and except as hereinafter provided, of no effect. In the
event that, notwithstanding the foregoing covenant, Borrower or its



86









 




successor in title files for
record any notice limiting the maximum principal amount that may be secured by this Security
Instrument in violation of the foregoing covenant, the Debt shall, at the option of Lender, become
immediately due and payable.




     (b) Notwithstanding anything to the contrary contained in this Security Instrument,
Lender shall comply with the requirements of Section 501.137. Florida Statutes, as applicable, with
respect to the payment of Impositions and insurance premiums from the Basic Carrying Costs
Sub-Account so that the maximum tax discount available may be obtained with regard to the Premises
and so that insurance coverage on the Property does not lapse.



     (c) The assignment of leases and rents contained in this Security Instrument is
intended to provide Lender with all the rights and remedies of lenders pursuant to Section 697.07
of the Florida Statutes (hereinafter “Section 697.07”), as may be amended from time to time.
However, in no event shall this reference diminish, alter, impair, or affect any other rights and
remedies of Lender, including but not limited to, the appointment of a receiver as provided herein,
nor shall any provision in this Section diminish, alter, impair or affect any rights or powers of
the receiver in law or equity or as set forth herein. In addition, this assignment shall be fully
operative without regard to value of the Property or without regard to the adequacy of the Property
to serve as security for the obligations owed by Borrower to Lender, and shall be in addition to
any rights arising under Section 697.07. Further, except for the notices required hereunder, if
any, Borrower waives any notice of default or demand for turnover of rents by Lender, together with
any rights under Section 697.07 to apply to a court to deposit the Rents into the registry of the
court or such other depository as the court may designate.



     Section 18.39. Certain Matters Relating to Property Located in the State of
Georgia. With respect to the Property which is located in the State of Georgia,
notwithstanding anything contained herein to the contrary:



     (a) The terms “mortgage” and “hypothecate” which are contained in the “NOW
THEREFORE” paragraph of the first page hereof and in Sections 2.02(q), 2.03, 2.05(b), 2.05(f),
8.01(d), 15.02 and 18.14 hereof shall be deleted.



     (b) The terms “Borrower” and “Lender” contained in this Security Instrument shall be
deemed to be “Grantor” and “Grantee”, respectively.



     (c) The “PROVIDED ALWAYS” paragraph on page 5 hereof shall be deleted in its
entirety and the following provisions shall be inserted in its place:




     Grantor covenants that Grantor is lawfully seized and possessed of the Premises as
aforesaid, has good right to convey the same, and that the same are unencumbered except for
the Permitted Encumbrances. Grantor warrants and will forever defend the title to the
Premises against the claims of all persons whomsoever, except as to the Permitted
Encumbrances.




     This Deed is intended to operate and is to be construed as a deed passing the title to
the Premises to Lender and is made under those provisions of the existing laws of the State
of Georgia relating to deeds to secure debt, and not as a mortgage, and is given to secure
the payment of the Note, the final payment on which is due on Maturity, unless otherwise
extended pursuant to the terms of the Note, together with any and all renewals,
modifications, consolidations and extensions of the indebtedness evidenced thereby, together
with the Debt, and together with any and all additional advances made by Lender to protect
or preserve the Property or the security interests created hereby on the Property, or for
taxes, assessments or insurance premiums as hereinafter provided or for the performance of
any of Grantor’s obligations hereunder or for any other purpose provided herein (whether or
not the original Grantor remains the owner of the Property at the time of such advances).




     Should the Debt be paid according to the tenor and effect thereof when the same become
due and payable, and should Grantor perform all covenants contained in this Deed in a timely
manner, then Grantee shall cancel and surrender this Deed of record.



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     (d) The definition of “Security Instrument” in Section 1.01 hereof shall be deleted
in its entirety and the following shall be inserted in its place:




     “Security Instrument” means this Deed to Secure Debt, Security Instrument and
Assignment of Rents 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.



     (e) The phrase “first mortgage” found in Section 2.06 hereof shall be deleted and
the phrase “first deed to secure debt” shall be inserted in its place.



     (f) Subsection 13.02(a)(vi) shall be deleted in its entirety and the following shall
be inserted in its place:




     (vi) sell the Property or any part of the Property at one or more public sale or sales
before the door of the courthouse of the county in which the Property or any part of the
Property is situated, to the highest bidder for cash, in order to pay the Debt, and all
expenses of sale and of all proceedings in connection therewith, including reasonable
attorney’s fees, after advertising the time, place and terms of sale once a week for four
(4) weeks immediately preceding such sale (but without regard to the number of days) in a
newspaper in which Sheriff’s sales are advertised in said county. At any such public sale,
Grantee may execute and deliver to the purchaser a conveyance of the Premises or any part of
the Premises in fee simple, with full warranties of title and, to this end, Grantor hereby
constitutes and appoints Grantee the agent and attorney-in-fact of Grantor to make such sale
and conveyance, and thereby to divest Grantor of all right, title and equity that Grantor
may have in and to the Premises and to vest the same in the purchaser of purchasers at such
sale or sales, and all the acts and doings of said agent and attorney-in-fact
are hereby ratified and confirmed and any recitals in said conveyance or conveyances as
to facts essential to a valid sale shall be binding upon Grantor. The aforesaid power of
sale and agency hereby granted are coupled with an interest and are irrevocable by death or
otherwise, are granted as cumulative of the other remedies provided hereby or by law for the
collection of the Debt, and shall not be exhausted by one exercise thereof, but may be
exercised until full payment of all of the Debt. In the event of any sale under this
Security Instrument by virtue of the exercise of the powers herein granted, or pursuant to
any order in any judicial proceedings or otherwise, the Premises may be sold as an entirety
or in separate parcels and in such manner or order as Lender, in its sole discretion, may
elect, and if Grantee so elects, Grantee may sell the personal property covered by this
Security Instrument at one or more separate sales in any manner permitted by the Uniform
Commercial Code, and one or more exercises of the powers herein granted shall not extinguish
nor exhaust such powers, until the entire Property are sold or the Debt is paid in full.



     (g) As this instrument is a deed passing legal title pursuant to the laws of the
State of Georgia, and is not a mortgage, whenever reference herein is made to the “lien of this
Security Instrument”, or words of similar import, such words shall be construed as meaning the
security title and interest created and conveyed by this Deed.



     (h) Whenever reference is made herein to “reasonable attorney’s fees” or similar
words, such reference shall mean attorney’s fees computed based upon the attorney’s normal hourly
rates and the amount of time expended, and not the statutory attorney’s fees provided by Official
Code of Georgia Annotated § 13-1-11.



     (i) GRANTOR EXPRESSLY WAIVES THE FOLLOWING: (A) ANY RIGHT GRANTOR MAY HAVE UNDER
THE CONSTITUTION OF THE STATE OF GEORGIA OR THE CONSTITUTION OF THE UNITED STATES OF AMERICA TO
NOTICE OR TO A JUDICIAL HEARING PRIOR TO THE EXERCISE OF ANY RIGHT OR REMEDY PROVIDED TO GRANTEE BY
THIS “SECURITY INSTRUMENT” AND GRANTOR WAIVES GRANTOR’S RIGHTS, IF ANY, TO SET ASIDE OR INVALIDATE
ANY SALE UNDER POWER DULY CONSUMMATED IN ACCORDANCE WITH THE PROVISIONS OF THIS SECURITY INSTRUMENT
ON THE GROUND (IF SUCH BE THE CASE) THAT THE SALE WAS CONSUMMATED WITHOUT PRIOR NOTICE OR JUDICIAL
HEARING OR BOTH. ALL WAIVERS BY GRANTOR HEREIN HAVE BEEN MADE VOLUNTARILY, INTELLIGENTLY AND
KNOWINGLY BY GRANTOR, AFTER



88









 




GRANTOR HAS BEEN AFFORDED THE OPPORTUNITY TO BE INFORMED BY COUNSEL OF
GRANTOR’S CHOICE AS TO POSSIBLE ALTERNATIVE RIGHTS AND THE EFFECT OF SAID WAIVERS. GRANTOR’S
EXECUTION OF THIS SECURITY INSTRUMENT SHALL BE CONCLUSIVE EVIDENCE OF THE MAKING OF SUCH WAIVERS
AND THAT SUCH WAIVERS HAVE BEEN VOLUNTARILY, INTELLIGENTLY AND KNOWINGLY MADE.




     (j) The Maturity Date is the Payment Date occurring in May, 2009.



     Section 18.40. Intentionally Omitted.



     Section 18.41. Certain Matters Relating to Property Located in the State of
Massachusetts. With respect to the Property which is located in the State of Massachusetts,
notwithstanding anything contained herein to the contrary:



     (a) Borrower hereby, as continuing security for payment or performance of its
obligations under the Note and the other Loan Documents in accordance with the terms thereof,
grants with MORTGAGE COVENANTS and assigns to Lender, and grants to Lender a continuing security
interest in and to all the Property.



     (b) This Security Instrument is upon the STATUTORY CONDITION and upon the further
condition that all covenants and agreements on the part of Borrower herein undertaken shall be kept
and fully and seasonably performed and that no breach of any other of the covenants or conditions
specified herein shall be permitted, for any breach of which, upon the occurrence of an Event of
Default Lender shall have the STATUTORY POWER OF SALE together with all other remedies now or
hereafter permitted by law.



     (c) This Security Instrument has been executed as a sealed instrument as of the date
first above written.



     Section 18.42. Intentionally Omitted.



     Section 18.43. Certain Matters Relating to Property Located in the State of New
York. With respect to the Property which is located in the State of New York, notwithstanding
anything contained herein to the contrary:



     (a) Borrower represents that this Security Instrument does not encumber property
principally improved or to be improved by one or more structures containing in the aggregate not
more than six (6) residential dwelling units.



     (b) Pursuant to Section 13 of the lien law of New York, Borrower shall receive the
advances secured hereby and shall hold the right to receive such advances as a trust fund to be
applied first for the purpose of paying the cost of any improvement and shall apply such advances
first to the payment of the cost of any such improvements on the Property before using any part of
the total of the same for any other purpose.



     (c) Lender shall have all of the rights against lessees of the Property as set forth
in Section 291(f) of the Real Property Law of New York.



     (d) The provisions of subsection 4 of Section 254 of the New York Real Property Law
covering the insurance of buildings against loss by fire and the application of Insurance Proceeds
shall not apply to this Security Instrument. In the event of any conflict, inconsistency or
ambiguity between the provisions of Article III hereof and the provisions of subsection 4 of
Section 254 of the New York Real Property Law covering the insurance of buildings against loss by
fire and the application of Insurance Proceeds, the provisions of Article III shall control.



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     (e) (i) In the event of any sale or transfer of the Property, or any part thereof,
including any sale or transfer by reason of foreclosure of this Security Instrument or any prior or
subordinate mortgage or by deed in lieu of any such foreclosure, Borrower shall timely and duly
complete, execute and deliver to Lender all forms and supporting documentation required by any
taxing authority to estimate and fix any tax payable by reason of such sale or transfer or
recording of the deed evidencing such sale or transfer, including any New York State Real Estate
Transfer Tax payable pursuant to Article 31 of the New York Tax Law and New York City Real Property
Transfer Tax payable pursuant to Chapter 21, Title 11 of the New York City Administrative Code
(individually, a “Transfer Tax” and collectively, the “Transfer Taxes”).




     (ii) Borrower shall pay the Transfer Taxes that may hereafter become due and
payable with respect to any sale or transfer of the Property described in this Article, and
in default of such payment, Lender may pay the same and the amount of such payment shall be
added to the Debt secured hereby and, unless incurred in connection with a foreclosure of
this Security Instrument or deed in lieu of such foreclosure, shall be secured by this
Security Instrument.




     (iii) Borrower hereby irrevocably constitutes and appoints Lender as its
attorney-in-fact, coupled with an interest, to prepare and deliver any questionnaire,
statement, affidavit or tax return in connection with any Transfer Tax applicable to any
foreclosure or deed in lieu of foreclosure described in this Article.




     (iv) Borrower shall indemnify and hold harmless Lender against (i) any and
all liability incurred by Lender for the payment of any Transfer Tax with respect to any
transfer of the Property by reason of foreclosure, and (ii) any and all expenses incurred by
Lender in connection therewith including, without limitation, interest, penalties and
attorneys’ fees.




     (v) The obligation to pay the Transfer Taxes and indemnify Lender under this
Section is a personal obligation of Borrower, whether or not Borrower is personally
obligated to pay the Debt secured
by this Security Instrument, and shall be binding upon and enforceable against the
distributees, successors and assigns of Borrower with the same force and effect as though
each of them had personally executed and delivered this Security Instrument, notwithstanding
any exculpation provision in favor of Borrower with respect to the payment of any other
monetary obligations under this Security Instrument.




     (vi) In the event that Borrower fails or refuses to pay a tax payable by
Borrower with respect to a sale or transfer by reason of a foreclosure of this Security
Instrument in accordance with this Section, the amount of the tax, any interest or penalty
applicable thereto and any other amount payable pursuant to Borrower’s obligation to
indemnify Lender under this Section may, at the sole option of Lender, be paid as an expense
of the sale out of the proceeds of the mortgage foreclosure sale.




     (vii) The provisions of this Section shall survive any transfer and the
delivery of the deed affecting such transfer. Nothing in this Section shall be deemed to
grant to Borrower any greater rights to sell, assign or otherwise transfer the Premises than
are expressly provided in Article IX nor to deprive Lender of any right to refuse to consent
to any transaction referred to in this Section.



     (f) The clauses and covenants contained in this Security Instrument that are
construed by Section 254 of the New York Real Property Law shall be construed as provided in those
sections (except as provided in Section 18.43(d) hereof and Article III hereof). The additional
clauses and covenants contained in this Security Instrument shall afford rights supplemental to and
not exclusive of the rights conferred by the clauses and covenants construed by Section 254 and
shall not impair, modify, alter or defeat such rights (except as provided in Section 18.43(d)
hereof and Article III hereof), notwithstanding that such additional clauses and covenants may
relate to the same subject matter or provide for different or additional rights in the same or
similar contingencies as the clauses and covenants construed by Section 254. The right of Lender
arising under the clauses and covenants contained in this Security Instrument shall be separate,
distinct and cumulative and none of them shall be in exclusion of the others.



90









 




No act of Lender
shall be construed as an election to proceed under any one provision herein to the exclusion of any
other provision, anything herein or otherwise to the contrary notwithstanding. In the event of any
inconsistencies between the provisions of Section 254 and the provisions of this Security
Instrument, the provisions of this Security Instrument shall prevail.




     (g) At Borrower’s request and sole but reasonable expense, Lender shall deliver to
Borrower, within ten (10) Business Days of such request, a pay-off letter indicating the
outstanding Principal Amount and any accrued but unpaid interest thereon and any other sums due and
owing under the Loan, upon Borrower’s prepayment of the Debt in full, deliver an assignment of the
Note and 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.



     (h) Notwithstanding anything to the contrary in this Security Instrument, the
maximum amount of principal indebtedness secured by this Security Instrument or which under any
contingency may be secured by this Security Instrument is $5,071,520.00.



     Section 18.44. Certain Matters Relating to Property Located in the State of
Ohio. With respect to the Property which is located in the State of Ohio, notwithstanding
anything contained herein to the contrary:



     (a) This Security Instrument is an Open-End Mortgage, and Borrower and Lender intend
that this Security Instrument shall secure not only the sums advanced as of the date hereof, but
also the unadvanced balance of the Note, which sums Lender is obligated to advance, and in addition
shall secure any and all advances provided for in the Loan Documents to the fullest extent provided
for under Section 5301.232 of the Ohio Revised Code; provided, however, that the maximum amount of
the principal portion of the Debt that may be outstanding at any time is the Loan Amount multiplied
by two (2). In addition to any other debt or obligation secured hereby, this Security Instrument
shall also secure unpaid balances of advances made with respect to the Property for the payment of
taxes, assessments, insurance premiums, and costs incurred for the protection of the Premises to
the fullest extent provided for under Section 5301.233 of the Ohio Revised Code.



     (b) The following is hereby inserted after the word “Debt” on the fifth line of the
“NOW THEREFORE” paragraph found on the first page hereof:




as well as to secure the unpaid balance of advances made by Lender for the payment of taxes,
assessments, insurance premiums, and costs incurred for the protection of the Property to
the fullest extent provided for under Section 5301.233 of the Ohio Revised Code.



     (c) The following is hereby inserted at the end of Section 18.14 of this Security
Instrument as an additional subparagraph:




     (c) The name of the “debtor” is the “Borrower” identified on page 1 hereof; and the
name of the “secured party” is the “Lender” identified on page 1 hereof; the mailing
address of the “secured party” from which information concerning the security interests may
be obtained and the mailing address of the “debtor” are as set forth in the preamble of this
Security Instrument; and a statement indicating the types, or describing the items, of
collateral is set forth hereinabove in the granting clauses. Borrower is the owner of the
real property constituting the “Premises” encumbered by this Security Instrument.



     (d) Lender shall be and hereby is authorized and empowered to do, as mortgagee, all
things provided to be done in the mechanics’ lien laws of the State of Ohio (including Section
1311.14 of the Ohio Revised Code), and all acts amendatory or supplementary thereto.



     (e) The maturity date of the Loan is the Payment Date occurring in May, 2009,
subject to extensions as provided in the Note.



91









 





     (f) With respect to any agreement by Borrower in this Security Instrument or in any
other Loan Document to pay Lender’s attorneys’ fee and disbursements incurred in connection with
the Loan, Borrower agrees that each Loan Document is a “contract of indebtedness” and that the
attorneys’ fees and disbursements referenced are those which are a reasonable amount, all as
contemplated by Ohio Revised Code Section 1301.21, as such Section may hereafter be amended.
Borrower further agrees that the indebtedness incurred in connection with the Loan is not incurred
for purposes that are primarily personal, family or household and confirms that the total amount
owed on the contract of indebtedness exceeds One Hundred Thousand and No/100 Dollars ($100,000.00).



     (g) Paragraph (d) of the granting clause is hereby amended by deleting the words
“and are part of the real estate” which is found immediately after the definition of “Fixtures” and
inserting the words “and are goods that are or are to become fixtures related to the Premises” in
their place.



     Section 18.45. Intentionally Omitted.



     Section 18.46. Certain Matters Relating to the Property Located in the State of
New Mexico. With respect to the Property that is located in the State of New Mexico,
notwithstanding anything contained herein to the contrary:



     (a) Mortgage With No Power of Sale. This Security Instrument is not a “deed
of trust,” within the scope of the New Mexico Deed of Trust Act, NMSA 1978, §§ 48-10-1 to 48-10-21
(1987), as amended from time to time; it is a mortgage within the scope of NMSA 1978, §§ 47-1-39
(1947) and 47-1-44 (6) (1975). Any power of sale granted in this Security Instrument, and any
designation of Lender as Borrower’s attorney-in-fact for purposes of effecting transfers of
property pursuant to any power of sale or other power, shall have no effect in this Security
Instrument. Any provisions of this Security Instrument permitting Lender to exercise a power of
sale or to dispose of any of the Property through a sale pursuant to the exercise of a power of
sale, are of no effect in this Security Instrument, with respect to the Property. The right of the
Lender to foreclose this Security Instrument as a mortgage under New Mexico law is affirmed and is
in no way impaired, and such foreclosure or enforcement and any foreclosure sale shall be conducted
pursuant to, and in accordance with, applicable law. Among the provisions thus deemed of no effect
and deleted, with respect to Property in the State of New Mexico, are the following, but not by
way of limitation: (i) the words “with power of sale” appearing in the third to the last line
of the first paragraph of the granting clause, which is the paragraph commencing with the words
“NOW THEREFORE” immediately following the last paragraph of the recitals (each recital paragraph
begins with the word “WHEREAS” and is set forth below the heading “WITNESSETH,” on page 1 of this
Security Instrument); (ii) all references to power of sale and sale pursuant to any power of sale
set forth in Section 13.02, including as more specifically provided for in Section 18.46(g) below.
in Section 13.02 (a) (vi), the words “with power of sale or otherwise,” together with the comma
following “otherwise, as well as the words “or otherwise,” following the words “and in the event of
a sale by foreclosure;” (iii) in Section 13.02 (d), lines 15 and 16, the words “this Section 13.02,
whether made under the power of sale herein granted or under or by virtue of judicial proceedings
or;” (iv) all of Section 13.02 (e), consistent with the provision below eliminating it; and (v) in
lines one through three of Section 13.02 (f), the words “this Section 13.02 (whether made under the
power of sale herein granted or under or by virtue of judicial proceedings or.”



     (b) Information. Information concerning, and copies of, any documents
referred to in this Security Instrument, as well as information concerning the Lender and the Debt
and obligations secured by this Security Instrument, may be obtained from the Lender at the address
specified for it in the opening paragraph of the Security Instrument.



     (c) Grant with Mortgage Covenants and Upon Statutory Mortgage Condition and
Without Power of Sale. Lender’s grant and mortgage in the granting clause of this Security
Instrument are made with mortgage covenants (except for and subject to Permitted Encumbrances and
except as otherwise herein provided) and upon the statutory mortgage condition (except as otherwise
herein provided) for the breach of which this Security Instrument is subject to foreclosure as
provided by law, and with no power of sale. Thus, at the end of the first paragraph of the
granting clause (which begins with the words “NOW, THEREFORE” and appears immediately after the
last



92









 




paragraph of the recitals, each recital paragraph beginning with the word “WHEREAS” and being
set forth below the heading “WITNESSETH” on page 1), with the deletion of the words “with power of
sale,” as called for in Subsection 18.46(a) above, the following words are substituted therefor:
“with mortgage covenants (except for and subject to Permitted Encumbrances and except as otherwise
herein provided) and upon the statutory mortgage condition (except as otherwise herein provided)
for the breach of which this Security Instrument is subject to foreclosure as provided by law,”
followed by a comma and the existing final words of the first paragraph of the granting clause,
that is, “all right, title and interest of Borrower in and to all of the following property,
rights, interests and estates,” followed by a colon.




     (d) Release of Security Instrument Upon Satisfaction of Secured Debt and
Obligations. In the second paragraph immediately preceding “ARTICLE I: DEFINITIONS,” which
second preceding paragraph begins with the words “PROVIDED ALWAYS,” the following words are added
at the end of said second preceding paragraph after the word “void” and before the period: “and
Lender shall cause this Security Instrument to be released of record in accordance with the
applicable provisions of NMSA 1978, § 48-7-4 (1991), as amended from time to time.”



     (e) Maximum Amount Secured. This Security Instrument secures not only
amounts advanced as of the date hereof but also any other advances made in the future under the
terms of the Note, this Security Instrument or the other Loan Documents. Notwithstanding any other
provisions, even if inconsistent, in any of the Loan Documents, the maximum amount secured by the
lien of this Security Instrument shall not exceed the aggregate principal amount at any one time
outstanding of $630,000,000, plus interest thereon, as well as costs and attorneys’ fees and any
interest due thereon. This statement of the maximum amount secured is made to comply with NMSA
1978, § 48-7-9 (1975), as amended from time to time, and does not in any way imply that Lender is
obligated at any time to make any future advances or to lend all or any part of such maximum
amount. The statement of such maximum amount limits, pursuant to NMSA 1978, § 48-7-9 (1975), as
amended from time to time, only the total amount which may be, at any one time outstanding and
secured on the terms here set forth.



     (f) Mechanics’ Liens. The provisions of this Security Instrument relating
to mechanics’ and materialmen’s liens, including, without limitation, as set forth at Sections 2.06
and 4.04 of this Security Instrument, shall be modified to reflect that, in New Mexico, Borrower’s
options for discharge of any lien of a mechanic or
materialman include payment of the lien and a petition to cancel the lien brought pursuant to
NMSA 1978 § 48-2-9 (1975), which may be pursued by Borrower, subject to the time and other
requirements for lien removal set forth in this Security Instrument, with provisions for removal of
such mechanics’ and materialmen’s liens by bonding or contest or other procedures deemed
inapplicable, but only to the extent such bonding or contest or other procedures are unavailable in
New Mexico outside an action for cancellation brought pursuant to § 48-2-9 (1975).



     (g) Remedies. The following references to a power of sale and/or sale
pursuant to a power of sale are deleted from Section 13.02: (i) the opening words of Section 13.02
(a) (iv), which read “sell the Property or;” (ii) in Section 13.02 (a) (vi) the words “with power
of sale or otherwise,” together with the comma following “otherwise”, as well as the words “or
otherwise,” following the words “and in the event of a sale by foreclosure;” (iii) in Section 13.02
(d), lines 15 and 16, the words “this Section 13.02, whether made under the power of sale herein
granted or under or by virtue of judicial proceedings or;” (iv) all of Section 13.02 (e); (v) in
lines one through three of Section 13.02 (f), the words “this Section 13.02 (whether made under the
power of sale herein granted or under or by virtue of judicial proceedings or;” and (vi) the
initial paragraph of Section 13.02 (b), as provided for in more detail below.



     Section 13.02 is further modified as here set forth. The following is added at the beginning
of Section 13.02 (a) (ix): “Subject to the provisions of NMSA 1978, §§ 44-8-1 through 44-8-10 (1995
& 1996), as amended from time to time, and Rule 1-066 NMRA, to the extent applicable,” followed by
a comma.



     The first paragraph of Section 13.02 (b) is deleted in its entirety and the following is
substituted therefor:




Foreclosure. Upon the occurrence of an Event of Default hereunder and at
any time thereafter, in addition to proceeding by suit or suits at law or in equity
to enforce the payment of the Debt and



93









 







obligations secured hereunder in accordance
with their terms under applicable law or in equity, and in addition to the other
rights and remedies which Lender may have hereunder or at law or equity, Lender may,
at its option, initiate judicial proceedings to foreclose the lien of this Security
Instrument as to all or any portion of the Property, whether real property or
personal property, and to have such Property sold under the judgment or decree of a
court of competent jurisdiction, in such portions, order and parcels as Lender, with
the approval of the court, may determine, with or without having first taken
possession of same, to the highest bidder for cash at public auction. Sale pursuant
to a judicial decree of foreclosure shall be conducted by a court-appointed special
master, or otherwise as ordered by the court, in compliance with all notice and
other requirements of the laws of the State, and in accordance with the terms of the
foreclosure decree or related court orders. Any person, including Lender, may be a
purchaser of any of the Property at a judicial foreclosure sale, to the extent
permitted by law, and Lender will be entitled to a credit on the purchase price in
the amount of any judgment received by Lender in the foreclosure action or any
portion thereof, except that cost and expenses adjudged payable to others than
Lender will be payable in cash. The special master appointed by the court in a
foreclosure action may deliver to the purchaser a special master’s deed and bill of
sale conveying the Property so sold, without any covenant or warranty, express or
implied. If the proceeds of a foreclosure sale of less than the whole of the
Property shall be less than the aggregate of the Debt and secured obligations, this
Security Instrument and the lien hereof shall remain in force and effect as to the
unsold portion of the Property, just as though no sale had been made; provided,
however, that Borrower shall never have any right to require the sale of less than
the whole of the Property, but Lender shall have the right, at its sole election, to
request the special master to sell less than the whole of the Property. In the
event any sale hereunder is not completed or is defective in the opinion of Lender,
such sale shall not exhaust the right of foreclosure sale hereunder, and Lender
shall have the right to cause a subsequent sale or sales to be made hereunder.
Nothing in this or any other provision in this Security Instrument dealing with
foreclosure procedures or specifying particular actions to be taken shall be deemed
to contradict or add to the requirements and procedures now or hereafter specified
by the law of the State, and any such inconsistency shall be resolved in favor of
the law of the State applicable at the time of the foreclosure..



     (h) Redemption Period. The redemption period following a court-ordered
judicial foreclosure sale shall be one month instead of nine months, as provided for in NMSA 1978,
§ 39-5-19 NMSA (1965), as it may be
amended from time to time. The waiver of redemption provisions in Section 13.11 of this
Security Instrument are modified by the redemption provision in the preceding sentence.



     (i) Certain UCC Provisions. Section 18.14 of this Security Instrument is
supplemented by the provisions set forth below:




This Security Instrument constitutes a financing statement filed as a fixture filing
pursuant to the provisions of Article 9 of the UCC, with respect to any goods
included in the Property that are now or are to become fixtures. This Security
Instrument shall also be effective as a financing statement covering those of the
following, if any, in which a security interest is granted by this Security
Instrument: as-extracted collateral (including oil and gas), accounts and general
intangibles under the UCC which will be financed at the wellhead or minehead of the
wells or mines located on the Premises, and is to be filed for record in the real
estate records of each county where any part of the Premises is situated. The names
of the debtor (Borrower) and the secured party (Lender) are given in the first
paragraph of this Security Instrument. The mailing address of Lender set out in the
first paragraph of this Security Instrument is an address of the secured party from
which information concerning the security interest may be obtained. The mailing
address of Borrower set out in the first paragraph of this Security Instrument is a
mailing address for the debtor. A statement indicating the types, or describing the
items, of Property collateral is set forth in Section 18.14 and in the granting
clauses of this Security Instrument. The real estate (Premises) to which the goods
are or are to be affixed and to which the as–extracted collateral relates is
described in Exhibit A to this Security Instrument. Borrower is a record owner of
the real estate.



94









 





     (j) Limitation on Indemnification. The parties reaffirm their intent that
this Security Instrument be governed by, and construed in accordance with, the law chosen in
Section 18.13. Nevertheless, to the extent, if at all, that any provision requiring one party to
indemnify, hold harmless, insure, or defend another party (including such other party’s employees
or agents) contained herein or in any related documents is found to be within the scope of NMSA
(1978), § 56-7-1 (2005), as amended from time to time, or in any way subject to, or conditioned
upon consistency with, the provisions of NMSA (1978), § 56-7-1 (2005), as amended from time to
time, for its enforceability, then such provision, regardless of whether it makes reference to this
or any other limitation provision, shall not extend to liability, claims, damages, losses or
expenses, including attorney fees, arising out of bodily injury to persons or damage to property
caused by or resulting from, in whole or in part, the negligence, act or omission of the indemnitee
or additional insured, as the case may be, its officers, employees or agents, and shall be further
modified, if required, by the provisions of NMSA (1978), § 56-7-1 (B)(2005), as amended from time
to time.



     (k) Commitment in Writing. Under NMSA 1978, § 58-6-5 (1999), a contract,
promise or commitment to loan money or to grant, extend or renew credit or any modification
thereof, in an amount greater than Twenty-Five Thousand and No/100 Dollars ($25,000.00) not
primarily for personal, family or household purposes made by a financial institution is not
enforceable unless in writing and signed by the parties to be charged or that party’s authorized
representatives.



* * * * *




95









 








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



	 	 	 	 	 	 	 	 	 	 	 
	Borrower’s Organizational Identification Number:

	 	 	 	 	 	 	, 	 Borrower
	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 


	 	 	 	 	 	 	 	 	 	 
	**[State “None” if applicable]**

	 	By:	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	its general partner	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	Title:	 	 	 	 






96









 






EXHIBIT A




LEGAL DESCRIPTION OF PREMISES




 









 





EXHIBIT B




SUMMARY OF RESERVES



See Cross-collateralization Agreement between Borrower and Lender of even date herewith.




      




EXHIBIT C




CROSS-COLLATERALIZED PROPERTIES AND INITIAL ALLOCATED LOAN AMOUNTS 



See Cross-collateralization Agreement between Borrower and Lender of even date herewith.




      




EXHIBIT D




REQUIRED ENGINEERING WORK



See Cross-collateralization Agreement between Borrower and Lender of even date herewith.




      




EXHIBIT E




CASH FLOW STATEMENT




Intentionally Omitted.




 









 





EXHIBIT F




APPROVED MANAGERS




Starwood Hotels and Resorts Worldwide Inc.




Marriott International, Inc.




Hilton Hotels Corporation




Hyatt




Interstate Hotels and Resorts




Remington




APPROVED FRANCHISERS




Starwood Hotels and Resorts Worldwide Inc.




Marriott International, Inc.




Hilton Hotels Corporation




Hyatt