LOAN AGREEMENT dated as of August 25, 2005 among DOUGLAS EMMETT 2002, LLC, A DELAWARE LIMITED LIABILITY COMPANY, as the Borrower DEG, LLC, A DELAWARE LIMITED LIABILITY COMPANY, as the Co-Borrower the LENDERS Party Hereto, and EUROHYPO AG, NEW YORK...

Exhibit 10.48

LOAN AGREEMENT

dated as of

August 25, 2005

among

▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 2002, LLC,
A DELAWARE LIMITED LIABILITY COMPANY,

as the Borrower

DEG, LLC,

A DELAWARE LIMITED LIABILITY COMPANY,

as the Co-Borrower

the LENDERS Party Hereto,

and

EUROHYPO AG, NEW YORK BRANCH,

as Administrative Agent

$110,000,000

EUROHYPO AG, NEW YORK BRANCH,

as Lead Arranger and Joint Bookrunner

and

BARCLAYS CAPITAL REAL ESTATE INC.

as Co-Lead Arranger and Joint Bookrunner

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ii

iii

iv

v

SCHEDULES:

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EXHIBITS:

ATTACHMENTS:

Joinder and Supplement Agreement, together with the Supplement to Joinder Agreement attached thereto

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LOAN AGREEMENT

LOAN AGREEMENT dated as of August 25, 2005 by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 2002, LLC, a limited liability company organized under the laws of the State of Delaware (the “Borrower”); DEG, LLC, a limited liability company organized under the laws of the State of Delaware, as the Co-Borrower pursuant to the Joinder and Supplement Agreement (the “Joinder and Supplement”) attached hereto (the “Co-Borrower”); each of the lenders (including Eurohypo (as hereinafter defined) in its capacity as a lender) that is a signatory hereto identified under the caption “LENDERS” on the signature pages hereto and each lender that becomes a “Lender” after the date hereof pursuant to Section 2.11 or 14.07(b) (individually, a “Lender” and, collectively, the “Lenders”); and EUROHYPO AG, NEW YORK BRANCH, as agent for the Lenders (in such capacity, together with its successors in such capacity, the “Administrative Agent”).

RECITALS:

A.                                   The Borrower is the fee owner of those certain office buildings listed in Schedule 1A attached hereto located in the County of Los Angeles, State of California on certain land more fully described in Schedule 1B attached hereto and the Co-Borrower is the owner of certain interests in office buildings described in the Joinder and Supplement (each such office building (or the interests of Co-Borrower therein) and the rights of the Borrower or Co-Borrower with respect to the land on which such office building is located, together with any air rights and other rights, privileges, easements, hereditaments and appurtenances thereunto relating or appertaining thereto, all Improvements thereon (or the interests of Co-Borrower therein), together with all fixtures and equipment required for the operation thereof, all personal property related to the foregoing and the rights of the Borrower or Co-Borrower with respect to all other items described in the granting clause of the Deed of Trust relating to such office building and interest in land is referred to as a “Project” and, collectively, the “Projects”).

B.                                     The Projects consist of three (3) improved office buildings, containing approximately 782,695 square feet (each such Project and all other improvements constructed on each Project being, individually and collectively, the “Improvements”). 

C.                                     The Borrower and the Co-Borrower have requested and applied to the Lenders for a loan in the aggregate principal amount of $110,000,000 in connection with the Projects for the purposes provided herein, and may seek additional financing in the amount of up to $125,000,000 pursuant to Section 2.11. 

D.                                    The Lenders are willing to make such loans on and subject to the terms and conditions hereinafter set forth. 

E.                                      The Borrower and Co-Borrower acknowledge that they will each receive substantial benefits from the Lenders’ extension of credit hereunder to the Borrower and the Co-Borrower on the joint and several, cross-collateralized basis provided for herein, which benefits

are reasonably equivalent consideration for their respective incurrence of liability on account of the Obligations hereunder, and which benefits include, without limitation, the refinancing of certain existing indebtedness of the Borrower and the Co-Borrower and the ability to refinance that indebtedness at a lower interest rate and otherwise on more favorable terms than would be available if the Projects owned by the Borrower and the Co-Borrower were being financed on a stand-alone basis and not as part of a pool of assets comprising the security for the Obligations; and that each is joining in this Agreement, the Joinder and Supplement and the other Loan Documents in consideration of those benefits. 

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

ARTICLE 1

DEFINITIONS AND ACCOUNTING MATTERS

1.01                           Certain Defined Terms.  As used herein, the following terms shall have the following meanings:

“Additional Costs” shall have the meaning assigned to such term in Section 5.01. 

“Adjusted LIBO Rate” shall mean, for any Eurodollar Loan for any Interest Period therefor, a rate per annum (expressed as a percentage and rounded upwards, if necessary, to the nearest 1/10000 of 1%) determined by the Administrative Agent to be equal to a fraction, the numerator of which is equal to the LIBO Rate for such Eurodollar Loan for such Interest Period and the denominator of which is equal to (x) 1 minus (y) the Reserve Requirement (if any) for such Eurodollar Loan for such Interest Period. 

“Adjusted Net Operating Income” shall mean Net Operating Income, exclusive of any income from tenants subject to any proceeding or case under the Bankruptcy Code (except to the extent such income has been actually received). 

“Administrative Agent” shall have the meaning assigned to such term in the preamble. 

“Administrative Agent’s Account” shall mean the account maintained by the Administrative Agent and of which the Borrower shall have been notified, with such bank as may from time to time be specified by the Administrative Agent. 

“Administrative Questionnaire” shall mean an administrative questionnaire in a form supplied by the Administrative Agent.

“Advance Date” shall have the meaning assigned to such term in Section 4.06.

“Affiliate” shall mean, with respect to any Person, another Person that directly or indirectly controls, or is under common control with, or is controlled by, such Person and, if such Person is an individual, any member of the immediate family (including parents, spouse, children

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and siblings) of such individual and any trust whose principal beneficiary is such individual or one or more members of such immediate family and any Person who is controlled by any such member or trust.  As used in this definition, “control” (including, with its correlative meanings, “controlled by” and “under common control with”) shall mean possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise), provided that, in any event, any Person that owns directly or indirectly securities having 10% or more of the voting power for the election of directors or other governing body of a publicly traded corporation or 10% or more of the partnership, membership or other ownership interests of any other publicly traded Person (other than as a limited partner of such other Person) shall be deemed to control such corporation or other Person. 

“Aggregate Notional Amount” shall have the meaning assigned to such term in Section 8.19(a). 

“Agreement” shall mean this Loan Agreement as supplemented by the Joinder and Supplement, and as the same may from time to time hereafter be Modified and in effect from time to time.

“All-in-Rate” shall mean, for any period, an annual interest rate equal to the weighted average of the following rates: (i) as to any portions of the Outstanding Principal Amount which are covered by one or more Hedge Agreements (including any Excess Hedge Agreement for which a Hedge Agreement Pledge has been executed and delivered to the Administrative Agent and remains in effect) which are in effect during such period (collectively, the “Hedged Principal Amount”), an imputed rate equal to the sum of all interest payments due with respect to such period on the Hedged Principal Amount, plus all payments due by the Borrower or Other Swap Pledgor with respect to such period under all Hedge Agreements maintained pursuant to Section 8.19 (including any Excess Hedge Agreement for which a Hedge Agreement Pledge has been executed and delivered to the Administrative Agent and remains in effect), minus all payments due to the Borrower or Other Swap Pledgor with respect to such period under all Hedge Agreements maintained pursuant to Section 8.19 (including any Excess Hedge Agreement for which a Hedge Agreement Pledge has been executed and delivered to the Administrative Agent and remains in effect) (with all such interest and other payments to be annualized), divided by the Hedged Principal Amount and (ii) as to any portion of the Outstanding Principal Amount which is not covered by any Hedge Agreement (or Excess Hedge Agreement for which a Hedge Agreement Pledge has been executed and delivered to the Administrative Agent and remains in effect) during such period, the weighted average annual interest rate actually payable hereunder on such Loans during such period.  For purposes of this calculation, the notional amount provided for in any Hedge Agreement (or Excess Hedge Agreement) in effect during any period shall be deemed to “cover” a portion of the Outstanding Principal Amount outstanding during such period in proportion to the amount which the notional amount provided for in such Hedge Agreement (or Excess Hedge Agreement) bears to the entire Outstanding Principal Amount outstanding during such period.  If this Agreement requires the calculation of the “All-in-Rate” based upon any monthly or quarterly periods, and the period during which any Hedge Agreement (or Excess Hedge Agreement) covering any portion of the Outstanding Principal Amount is in effect is less than the entirety of the relevant month or

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quarter, the calculation required under this definition shall be made separately with respect to the different periods during such month or quarter during which such portion of the Outstanding Principal Amount is covered by such Hedge Agreement (or Excess Hedge Agreement), and such calculations shall be aggregated, on a weighted average basis, for the relevant period of one month or quarter. 

“Allocated Loan Amount” shall mean, solely for the purposes of performing certain calculations hereunder: for any Project, the portion of the Loans allocated to such Project in Schedule 1.01(1) attached hereto.  The Allocated Loan Amount of a Project suffering a Casualty Event or a Taking shall be reduced by the amount of any Net Proceeds attributable to such Project applied by the Administrative Agent in prepayment of the Outstanding Principal Amount pursuant to Section 2.07. 

“Annual Budget” shall have the meaning assigned to such term in Section 8.16(a).

“Anti-Terrorism Order” shall mean Executive Order No. 13,224, 66 Fed. Reg. 49,079 (2001), issued by the President of the United States of America (Executive Order Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism).

“Applicable Law” shall mean any statute, law (including Environmental Laws), regulation, ordinance, rule, judgment, rule of common law, order, decree, Government Approval, approval, concession, grant, franchise, license, agreement, directive, guideline, policy, requirement, or other governmental restriction or any similar form of decision of, or determination by, or any interpretation or administration of any of the foregoing by, any Governmental Authority, whether now or hereinafter in effect and, in each case, as amended (including any thereof pertaining to land use, zoning and building ordinances and codes).

“Applicable Lending Office” shall mean, for each Lender and for each Type of Loan, the “Lending Office” of such Lender (or of an Affiliate of such Lender) designated for such Type of Loan on Schedule 1.01(2) or such other office of such Lender (or of an Affiliate of such Lender) as such Lender may from time to time specify to the Administrative Agent and the Borrower as the office by which its Loans of such Type are to be made and maintained.

“Applicable Margin” shall mean (a) with respect to that portion of the Loan evidenced by Note A, the Note A Applicable Margin, (b) with respect to that portion of the Loan evidenced by Note B, the Note B Applicable Margin and (c) with respect to that portion of the Loan evidenced by Note C, the Note C Applicable Margin.

“Appraisal” shall mean an appraisal of each Project prepared by an Appraiser, each such Appraisal must comply in all respects with the standards for real estate appraisal established pursuant to Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as amended, and otherwise in form and substance satisfactory to the Administrative Agent. 

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“Appraised Value” shall mean, for any Project, the appraised value indicated as such for that Project in Schedule 1.01(3) attached hereto, as determined by the Appraisal.

“Appraiser” shall mean CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ and/or KTR Newmark, or any other “state certified general appraiser” as such term is defined and construed under applicable regulations and guidelines issued pursuant to Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as amended, which appraiser must have been licensed and certified by the applicable Governmental Authority having jurisdiction in the State of California, and which appraiser shall have been selected by the Administrative Agent.

“Approved Annual Budget” shall have the meaning assigned to such term in Section 8.16(a).

“Approved Capital Expenditures” shall have the meaning assigned to such term in Section 11.01(b).

“Approved Fund” shall mean any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business (and which is not engaged in the business of acquiring direct or indirect ownership interests in commercial real estate projects) and that is administered or managed by (a) a Lender, or (b) a Person that meets the requirements in clauses (i), (ii), (iii) or (iv) of the definition of “Eligible Assignee.” 

“Approved Lease” shall mean (a) each existing Lease as of the Closing Date as set forth in the Leasing Affidavit and (b) each Lease entered into after the Closing Date in accordance with the terms and conditions contained in Section 9.09 as such leases and related documents shall be Modified as permitted pursuant to the terms of this Agreement.

“Approved Leasing Expenditures” shall have the meaning assigned to such term in Section 11.01(b).

“Arranger” shall mean EUROHYPO AG, NEW YORK BRANCH as lead arranger and joint bookrunner of the lending syndicate. 

“Assignment and Assumption” shall mean an Assignment and Assumption, duly executed by the parties thereto, in substantially the form of Exhibit A attached hereto and, if required pursuant to Section 14.07(b) consented to by the Borrower and the Administrative Agent.

“Authorized Officer” shall mean, with respect to the Borrower, the Co-Borrower or the Borrower’s Member, any of the individual officers serving as the President, Vice President, Chief Financial Officer, Secretary, Treasurer or Assistant Treasurer of Borrower’s Manager, in its respective capacity as the manager of Borrower or Co-Borrower or the sole general partner of Borrower’s Member, and whose name appears on a certificate of incumbency executed by the Secretary of Borrower’s Manager, in its respective capacity as the manager of Borrower or Co-Borrower and/or as the sole general partner of Borrower’s Member, and

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delivered concurrently with the execution of this Agreement, as such certificate of incumbency may be amended from time to time to identify the names of the individuals then holding such offices and certified by the Secretary of Borrower’s Manager, in its respective capacity as the manager of Borrower and/or Co-Borrower and/or as the sole general partner of Borrower’s Member. 

“Bankruptcy Code” shall mean the Federal Bankruptcy Code of 1978, as amended from time to time. 

“Bankruptcy Party” shall mean any of the Borrower Parties (including, in the case of a Borrower Party which is a Qualified Successor Entity consisting of a Permitted Private REIT Subsidiary of a Permitted Private REIT, such Permitted Private REIT, its Operating Partnership and any Permitted Private REIT Subsidiary that holds direct or indirect interests in the Borrower).  Following a Permitted Public REIT Transfer, “Bankruptcy Party” shall mean any of the Borrower Parties while such Person qualifies as a “Borrower Party” under the definition of such term, the Permitted Public REIT, its Operating Partnership, and any Permitted Public REIT Subsidiary that holds direct or indirect interests in and controls the Borrower.  “Bankruptcy Party” shall also mean any Subsidiary of the Borrower while such Person remains a Subsidiary of the Borrower, other than an Immaterial Subsidiary. 

“Base Rate” shall mean, for any day, a rate per annum equal to the Federal Funds Rate for such day.  Each change in any interest rate provided for herein based upon the Base Rate resulting from a change in the Base Rate shall take effect at the time of such change in the Base Rate.

“Base Rate Loans” shall mean the portions of the Outstanding Principal Amount that bear interest at rates based upon the Base Rate.

“Basel Accord” shall mean the proposals for risk-based capital framework described by the Basel Committee on Banking Regulations and Supervisory Practices in its paper entitled “International Convergence of Capital Measurement and Capital Standards” dated July 1988, as Modified and in effect from time to time.

“Borrower” shall mean the Borrower named in the preamble to this Agreement until such time (if any) as a Qualified Successor Entity shall acquire all of the Projects and assume the obligations of Borrower under the Loan Documents and the originally named Borrower shall be released from its obligations under the Loan Documents, in accordance with Section 9.03(a)(iii), at which time the “Borrower” shall be such Qualified Successor Entity. 

“Borrower Party” shall mean each of the Borrower, the Co-Borrower, the Borrower’s Member and the Borrower’s Manager (and in any event shall not include any such Person that is not the general partner or manager of the Qualified Successor Entity).  Upon the acquisition of the Projects or the Co-Borrower Projects, but not of direct or indirect Equity Interests in the Borrower or Co-Borrower by a Qualified Successor Entity, “Borrower Party” shall also mean and include such Qualified Successor Entity and the general partner or manager thereof (except as expressly provided in this definition) and, unless the Borrower, Co-Borrower,

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 the Borrower’s Member or the Borrower’s Manager constitutes the general partner or manager of the Qualified Successor Entity, shall no longer include the original Borrower, the original Co-Borrower, the original Borrower’s Member or the original Borrower’s Manager (and in any event shall not include any such Person that is not the general partner or manager of the Qualified Successor Entity).  Upon the acquisition of the Projects or the Co-Borrower Projects, but not of direct or indirect Equity Interests in the Borrower or Co-Borrower, by a Qualified Successor Entity that is a Permitted Public REIT Subsidiary in connection with a Permitted Public REIT Transfer, “Borrower Party” shall include such Permitted REIT Subsidiary and its general partner or manager; provided, however, if the general partner or manager of such Permitted Public REIT Subsidiary is the Permitted Public REIT or such REIT’s Operating Partnership, “Borrower Party” shall not include the Permitted Public REIT or such Operating Partnership.  Upon the acquisition of direct or indirect Equity Interests in the Borrower or Co-Borrower by a Permitted Public REIT Subsidiary, or by the Operating Partnership of the Permitted Public REIT, or by the Permitted Public REIT, “Borrower Party” shall include the Borrower or Co-Borrower and its general partner or manager, but shall not include such Permitted Public REIT Subsidiary (unless it is the general partner or manager of the Borrower or Co-Borrower) or such Operating Partnership or the Permitted Public REIT (regardless of whether such Operating Partnership or the Permitted Public REIT is the general partner or manager of the Borrower or Co-Borrower). 

“Borrower’s Account” shall mean an account maintained by the Borrower with such bank as may from time to time be specified by or approved by the Administrative Agent to accept the deposit of funds in accordance with this Agreement. 

“Borrower’s Manager” shall mean DERA, in the capacity of the manager of the Borrower or Co-Borrower or in the capacity of the sole general partner of Borrower’s Member, under their respective Organizational Documents, and its successors thereunder in one or more of such capacities as permitted under the Loan Documents.  Except as may otherwise be expressly provided herein or as the context may require, each reference herein to Borrower’s Manager shall mean Borrower’s Manager in such capacities.  It is understood that, notwithstanding anything to the contrary contained in this Agreement, any covenants, representations or warranties that are required to be observed under this Agreement by the “Borrower’s Manager” shall not be required to be observed by any manager of the Borrower or the Co-Borrower consisting of the Permitted Public REIT or its Operating Partnership. 

“Borrower’s Manager’s Limited Indemnity and Guarantee” shall mean that certain Limited Indemnity and Guarantee in the form of Exhibit B attached hereto, to be executed, dated and delivered by Borrower’s Manager to the Administrative Agent (on behalf of the Lenders) on the Closing Date as the same may be Modified and in effect from time to time. 

“Borrower’s Member” shall mean ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Realty Fund 2002, a California limited partnership, as sole member under the Organizational Documents of Borrower, and its successors thereunder as sole member of the Borrower as permitted under the Loan Documents.  It is understood that, notwithstanding anything to the contrary contained in this Agreement, any covenants, representations or warranties that are required to be observed under this Agreement by the “Borrower’s Member” shall not be required to be observed by any

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member of the Borrower consisting of the Permitted Public REIT, its Operating Partnership or any Permitted Public REIT Subsidiary that is not the general partner or manager of the Borrower including, without limitation ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Realty Fund 2002, the Borrower’s Member as of the date hereof, if it is not the general partner or manager of the Borrower. 

“Business Day” shall mean any day that is not a Saturday, Sunday or other day on which commercial banks in New York City (or, with respect only to payments to be made by the Borrower, in California) are authorized or required by law to remain closed; provided that, when used in connection with a borrowing, or Continuation of, a Conversion into, a payment or prepayment of principal of or interest on, or an Interest Period for, a Eurodollar Loan, or a notice by the Borrower with respect to any such borrowing, Continuation, Conversion, payment, prepayment or Interest Period, the term “Business Day” shall also exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market.

“Business Interruption Insurance” shall mean rental and/or business income insurance required pursuant to Section 8.05(a)(iii) or otherwise maintained in accordance with this Agreement.

“Capital Lease Obligations” shall mean, for any Person, all obligations of such Person to pay rent or other amounts under a lease of (or other agreement conveying the right to use) property to the extent such obligations would generally be classified and accounted for as a capital lease on a balance sheet of such Person under GAAP, and, for purposes of this Agreement, the amount of such obligations shall be the capitalized amount thereof, determined in accordance with GAAP.

“Cash Trap Account Security Agreement” shall mean a Cash Trap Account Security Agreement, among the Borrower or Co-Borrower, as applicable, the Administrative Agent (on behalf of the Lenders) and the Depository Bank, substantially in the form of Exhibit C attached hereto, and which is established and maintained in accordance with Section 11.01. 

“Cash Trap Account” shall have the meaning assigned to such term in the Cash Trap Account Security Agreement.

“Casualty Event” shall mean any loss of or damage to, any portion of any Project by fire or other casualty.

“Change of Control” shall mean, with respect to any Permitted Public REIT, any event or series of events by which any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding (i) any person or group consisting of Named Principals or Related Parties, (ii) any “person” or “group” which is controlled by one or more Named Principals or Related Parties, (iii) the Depository Trust Company or its nominees, (iv) any “dealer” (as defined in the Securities Act of 1933) who acquires securities of the Permitted Public REIT with a view to, or in connection with, (A) the distribution of such securities, (B) the resale of such securities in accordance with the provisions of Rule 144A(d) promulgated under the Securities Act of 1933 or (C) the resale of such securities in accordance with the provisions of Rule 904 (promulgated under the Securities Act)

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applicable to “Distributors” as defined in Rule 902 (promulgated under the Securities Act), (v) any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership “ of all securities that such person or group has the right to acquire (such right, an “option right”), whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of forty percent (40%) or more of the equity securities of the Permitted Public REIT entitled to vote for members of the board of directors or equivalent governing body of the Permitted Public REIT on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right).

“Closing Date” shall mean the date of this Agreement, which date shall be the initial funding date of the Loans pursuant to Section 2.02.

“Co-Borrower” shall mean the Co-Borrower named in the preamble to this Agreement, subject to the Joinder and Supplement, until such time (if any) as a Qualified Successor Entity shall acquire all of the Co-Borrower Projects and assume the obligations of Co-Borrower under the Loan Documents and the originally named Co-Borrower shall be released from its obligations under the Loan Documents, in accordance with Section 9.03(a)(iii), as set forth in Section 1(d)(xviii)(m) of the Joinder and Supplement, at which time the “Co-Borrower” shall be such Qualified Successor Entity.

“Co-Borrower Projects” shall have the meaning assigned to such term in the Joinder and Supplement.

“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.

“Commitment” shall mean, as to each Lender, the obligation of such Lender to make a Loan in a principal amount up to but not exceeding the amount set opposite the name of such Lender on Schedule 1.01(4) attached hereto under the caption “Commitment” or, in the case of a Person that becomes a Lender pursuant to an assignment permitted under Section 14.07(b) or pursuant to a Joinder under Section 2.11(g), as specified in the respective Assignment and Assumption pursuant to which such assignment is effected, or as specified in the respective Joinder, in either case, as such percentage may be modified by any Assignment and Assumption or any Joinder.

“Condemnation Awards” shall mean all compensation, awards, damages, rights of action and proceeds awarded to the Borrower by reason of a Taking.

“Consumer Price Index” shall mean the “Consumer Price Index -- For all Items” for the Los Angeles-Riverside-Orange County Consolidated Metropolitan Statistical Area, published monthly in the “Monthly Labor Review” of the Bureau of Labor Statistics of the United States Department of Labor.  If at any time the Consumer Price Index is no longer available, then the term “Consumer Price Index” shall be an index selected by the Administrative

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Agent which, in the opinion of the Administrative Agent, is comparable to the Consumer Price Index. 

“Continue”, “Continuation” and “Continued” shall refer to the continuation pursuant to Section 2.05 of (a) a Eurodollar Loan from one Interest Period to the next Interest Period or (b) Base Rate Loan at the Base Rate.

“Controlled Account” shall mean one or more deposit accounts established by the Administrative Agent (for the benefit of the Lenders) at a depository bank or financial institution that is acceptable to the Administrative Agent, and which is established and maintained in accordance with Section 14.28 hereof. 

“Controlled Account Agreement” shall have the meaning assigned to such term in Section 14.28(a)(i).

“Controlled Account Collateral” shall have the meaning assigned to such term in Section 14.28(c)(i).

“Convert”, “Conversion” and “Converted” shall refer to a conversion pursuant to Section 2.05 of one Type of Loan into another Type of Loan, which may be accompanied by the transfer by a Lender (at its sole discretion) of a Loan from one Applicable Lending Office to another.

“Debt Service Coverage Ratio” shall mean, with respect to any period being measured, the ratio of (a) Adjusted Net Operating Income for such period to (b) DSCR Debt Service for such period.  For purposes of calculating Debt Service Coverage Ratio pursuant to Section 2.09(a), Adjusted Net Operating Income and DSCR Debt Service shall be calculated on an annualized basis, and the Debt Service Coverage Ratio for such purposes shall be as determined by the Administrative Agent, based upon the quarterly results reflected in the most recent reports submitted by Borrower pursuant to Section 8.01 (or, if the most recent report has not been submitted pursuant to such section, based on such other information as the Administrative Agent shall determine in its reasonable discretion), which determination shall be conclusive in the absence of manifest error.  For purposes of calculating Debt Service Coverage Ratio pursuant to Section 10.03(c), Adjusted Net Operating Income and DSCR Debt Service shall be projected for a period of one year in accordance with Section 10.03(c)(iv).  

“Deed of Trust” shall mean each Deed of Trust, Assignment of Leases and Rents and Security Agreement and substantially in the form of Exhibit D-1 attached hereto (for Projects in California) or each Mortgage, Assignment of Leases and Rents and Security Agreement substantially in the form of Exhibit D-2 attached hereto (for Projects in Hawaii), to be executed, dated and delivered by the Borrower or the Co-Borrower, as applicable, to the Administrative Agent (on behalf of the Lenders) on the Closing Date, securing the obligations identified therein, as each such deed of trust or mortgage may be Modified and in effect from time to time. 

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“Default” shall mean an Event of Default or an event that with notice or lapse of time or both would become an Event of Default.

“Depository Bank” shall mean, at any time, the depository bank which is party to the Cash Trap Account Security Agreement, the Project-Level Account Security Agreement or a Controlled Account Agreement.

“DERA” shall mean ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Realty Advisors, a California corporation. 

“Disbursement Request” shall have the meaning assigned to such term in Section 11.01(c)(iii).

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

“▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Realty Funds” shall mean ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Joint Venture, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Realty Fund 1995, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Realty Fund 1996, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Realty Fund 1997, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Realty Fund 1998, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Realty Fund 2000, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Realty Fund 2002 and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Realty Fund 2005 and their respective Subsidiaries. 

“DSCR Debt Service” shall mean, for any period, an amount equal to the payment of interest which would be required under the Notes delivered by the Borrower based on the Outstanding Principal Amounts of such Notes as of the end of such period and the All-in-Rate at such time.  All such calculations shall be subject to the approval of the Administrative Agent.  For purposes of Section 10.03, the calculation of DSCR Debt Service shall be projected for a one year period in accordance with Section 10.03(c)(iv). 

“Eligible Assignee” means any of (i) a commercial bank organized under the Laws of the United States, or any state thereof, and having (x) total assets in excess of $25,000,000,000 and (y) a combined capital and surplus of at least $1,000,000,000; (ii) a commercial bank organized under the laws of any other country which is a member of the Organization of Economic Cooperation and Development (“OECD”), or a political subdivision of any such country, and having (x) total assets in excess of $25,000,000,000 and (y) a combined capital and surplus of at least $1,000,000,000, provided that such bank is acting through a branch or agency located in the United States or in the country in which it is organized or another country which is also a member of OECD; (iii) a life insurance company organized under the Laws of any state of the United States, or organized under the Laws of any country which is a member of OECD and licensed as a life insurer by any state within the United States and having (x) admitted assets of at least $25,000,000,000 and (y) a combined capital and surplus of at least $1,000,000,000; (iv) any Person described in Schedule 1.01(5); or (v) an Approved Fund having (1) total assets of at least $25,000,000,000 and (2) a net worth of at least $1,000,000,000; provided that any such Person meeting the requirements of (i) through (v) (or its holding company) shall also have a long-term senior unsecured indebtedness rating of BBB- or better by S&P (if rated by S&P) and Baa3 or better by ▇▇▇▇▇’▇ (if rated by ▇▇▇▇▇’▇) at the time an interest in the Loans is assigned to it.

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“Environmental Claim” shall mean, with respect to any Person, any written request for information by a Governmental Authority, or any written notice, notification, claim, administrative, regulatory or judicial action, suit, judgment, demand or other written communication by any Person or Governmental Authority alleging or asserting liability with respect to the Borrower or the Projects, whether for damages, contribution, indemnification, cost recovery, compensation, injunctive relief, investigatory, response, Remediation, damages to natural resources, personal injuries, fines or penalties arising out of, based on or resulting from (i) the presence, Use or Release into the environment of any Hazardous Substance originating at or from, or otherwise affecting, the Projects, (ii) any fact, circumstance, condition or occurrence forming the basis of any violation, or alleged violation, of any Environmental Law by the Borrower or otherwise affecting the health, safety or environmental condition of the Projects or (iii) any alleged injury or threat of injury to the environment by the Borrower or otherwise affecting the Projects.

“Environmental Indemnity” means that certain Environmental Indemnity Agreement by the Borrower and Co-Borrower in favor of the Administrative Agent and each of the Lenders substantially in the form of Exhibit E attached hereto, to be executed, dated and delivered to the Administrative Agent (on behalf of the Lenders) on the Closing Date, as the same may be Modified and in effect from time to time.

“Environmental Laws” shall mean any and all Applicable Laws relating to the regulation or protection of the environment or the Release or threatened Release of Hazardous Substances into the indoor or outdoor environment, including ambient air, soil, surface water, ground water, wetlands, land or subsurface strata, or otherwise relating to the Use of Hazardous Substances; provided, however, that solely for purposes of the Environmental Indemnity, “Environmental Laws” shall not include the California Environmental Quality Act or statutes, laws, regulations or orders which relate to zoning or otherwise regulating the permissible uses of land or permissible structures to be developed thereon. 

“Environmental Liens” shall have the meaning assigned thereto in Section 8.11(a).

“Environmental Losses” shall mean any losses, damages, costs, fees, expenses, claims, suits, judgments, awards, liabilities (including, but not limited to, strict liabilities), obligations, debts, diminutions in value, fines, penalties, charges, costs of Remediation (whether or not performed voluntarily), amounts paid in settlement, foreseeable and unforeseeable consequential damages, litigation costs, reasonable attorneys’ fees and expenses, engineers’ fees, environmental consultants’ fees, and investigation costs (including, but not limited to, costs for sampling, testing and analysis of soil, water, air, building materials, and other materials and substances whether solid, liquid or gas), of whatever kind or nature, and whether or not incurred in connection with any judicial or administrative proceedings, actions, claims, suits, judgments or awards relating to Hazardous Substances, Environmental Claims, Environmental Liens and violation of Environmental Laws.  Notwithstanding the foregoing, “Environmental Losses” shall not include any loss resulting from diminution in value of any Project suffered by any Lender if the Lenders shall have been paid in full all amounts payable by the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party or shall have

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otherwise realized all such amounts upon or prior to foreclosure of the collateral for the Loans; provided, that, subject to the provisions of Section 8 of the Environmental Indemnity, nothing contained in this sentence shall limit any claim for a loss (otherwise included within the term “Environmental Losses” as defined herein) suffered by the Administrative Agent, any Lender or any Affiliate as a result of a claim for the diminution in value of the interest of any Person (other than the interest of the Administrative Agent, any Lender or any Affiliate of the Administrative Agent or any Lender) in any Project (including the interest of any ground lessor, tenant, easement holder or other third party, but excluding any Person who has purchased or acquired the Borrower’s or Co-Borrower’s interest in such Project by foreclosure or deed-in-lieu of foreclosure or any time thereafter) or the diminution in value of any other property made against the Administrative Agent, any such Lender or any Affiliate by any other Person as a result of the Administrative Agent, any Lender or any Affiliate succeeding to the ownership of any Project through foreclosure or other exercise of remedies (but not as a result of any contractual obligation incurred by the Administrative Agent, any Lender or any Affiliate subsequent to or in connection with its acquisition of the ownership of a Project). 

“Environmental Reports” shall mean, collectively, each environmental survey and assessment report prepared for the Administrative Agent relating to each Project listed on Schedule 1.01(6) attached hereto; each such environmental report shall include a certification by the engineer (i) that such engineer has obtained and examined the list of prior owners, (ii) has made an on-site physical examination of the applicable Project and (iii) has made a visual observation of the surrounding areas and has found no evidence of the presence of toxic or Hazardous Substances, or of past or present Hazardous Substances activities that have not been remediated or are not subject to an operation and maintenance program.  The Administrative Agent acknowledges receipt of copies of the Environmental Reports. 

“Equity Interests” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any such equity interest.

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time.

“ERISA Affiliate” shall mean any trade or business (whether or not incorporated) that, together with any Borrower Party, is treated as a single employer under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 (b), (c), (m) or (o) of the Code.

“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan which is subject to Title IV of ERISA (other than an event for which the thirty (30) day notice period is waived); (b) the existence with respect to any Plan subject to Section 412 of the Code or Section 302 of ERISA of an “accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to

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any Plan subject to Section 412 of the Code or Section 302 of ERISA; (d) the incurrence by a Borrower Party or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan which is subject to Title IV of ERISA; (e) the receipt by any Borrower Party or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans which are subject to Title IV of ERISA or to appoint a trustee to administer any such Plan; (f) the incurrence by a Borrower Party or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan which is subject to Title IV of ERISA or Multiemployer Plan; or (g) the receipt by a Borrower Party or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from a Borrower Party or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.

“Eurodollar Loans” shall mean the portions of the Outstanding Principal Amount that bear interest based on a “LIBO Rate”.

“Eurohypo” shall mean Eurohypo AG, New York Branch.

“Event of Default” shall have the meaning assigned to such term in Article XII. 

“Excess Cash” shall mean with respect to any calendar month, the amount by which the sum of Operating Income actually received during such calendar month plus amounts actually paid during such month to or for the account of the Borrower, the Co-Borrower or Other Swap Pledgor by the counterparty under and pursuant to the Hedge Agreement (but only on account of any “regular” payments due thereunder (and not on account of any default or termination thereunder or any obligation to deliver collateral pursuant thereto)) exceeds the sum of (i) Operating Expenses actually paid during such month plus (ii) the sum of interest payments on the Loans and other amounts due and payable under the Loan Documents plus amounts actually paid during such month by the Borrower, the Co-Borrower or Other Swap Pledgor to the counterparty under and pursuant to the Hedge Agreement (but only on account of any “regular” payments due thereunder (and not on account of any default or termination thereunder or any obligation to deliver collateral pursuant thereto)) in each case, to the extent actually paid during such month; provided, however, that for purposes of determining Excess Cash, Operating Expenses shall exclude any amounts due or accrued for Insurance Premiums, Real Estate Taxes, Approved Capital Expenditures or Approved Leasing Expenditures, except for amounts actually paid in cash during the relevant month for Insurance Premiums, Real Estate Taxes and, if approved in accordance with the provisions of Article XI, Approved Capital Expenditures or Approved Leasing Expenditures (and the Borrower may utilize its Operating Income in such month to pay for Insurance Premiums, Real Estate Taxes and, if approved in accordance with the provisions of Article XI, Approved Capital Expenditures or Approved Leasing Expenditures).  For the avoidance of doubt, it is understood that the calculation of Excess Cash for any month shall be based upon the cash method of accounting notwithstanding references to GAAP or the imputation of any income or expense item that is not actually received or paid in such month in the definitions of “Operating Income” and “Operating Expenses.”  Notwithstanding the provisions set forth in the definition of “Operating Expenses” relating to the treatment of reserves specifically required under this Agreement and amounts paid from such reserves for

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purposes of that definition, for purposes of the calculation of Excess Cash, the deposit of sums into any such specifically-required reserve (but not the expenditure and release of sums from any such reserve) shall be treated as an expense.

“Excess Hedge Agreement” shall have the meaning assigned to such term in Section 8.19(a).

“Excluded Project” shall mean (a) any of the Residential Properties, (b) any of the Properties owned by the Borrower on the Closing Date other than the Projects which are identified on Schedule 1A (it being understood that the Property identified on Schedule 1.01(10)(A) shall be an Excluded Project until such future time (if at all) as it may be encumbered pursuant to the Loan Documents upon an additional loan advance in accordance with Section 2.11), (c) any Qualified Real Estate Interest that is acquired after the Closing Date by the Borrower or by a wholly-owned Subsidiary or Qualified Sub-Tier Entity, and (d) any Project which has been released from the Liens of the Loan Documents in accordance with Section 2.09.

“Excluded Taxes” shall mean, with respect to the Administrative Agent and any Lender, or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by the United States of America, or by the jurisdiction under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its Applicable Lending Office is located, (b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which the Borrower or Co-Borrower is located and (c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower or Co-Borrower under Section 5.07), any withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party to this Agreement (or designates a new lending office) or is attributable to such Foreign Lender’s failure to comply with Section 5.06(e), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation, to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 5.06(a).

“Extraordinary Capital or Leasing Expenditures” shall have the meaning assigned to such term in Section 11.01(b).

“Facility Amount” shall mean the amount of the Commitments, which initially is $110,000,000, as the same may be increased in accordance with Section 2.11 hereof. 

“Federal Funds Rate” shall mean, for any day, the weighted average (rounded upwards, if necessary, to the next 1/1000 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or if such day is not a Business Day, for the immediately preceding Business Day) on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/1000 of 1%) of the quotations for such day for such

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transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.

“Fee Letter” means that certain letter agreement, dated as of the date of this Agreement, between the Borrower, the Co-Borrower and the Administrative Agent with respect to certain fees payable by the Borrower and the Co-Borrower in connection with the Commitments, as the same may be Modified from time to time.

“Foreign Lender” shall mean any Lender that is organized under the laws of a jurisdiction other than that in which the Borrower is located.  For purposes of this definition, the United States of America, each state thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.

“GAAP” shall mean generally accepted accounting principles applied on a basis consistent with those that, in accordance with Section 1.02(a) and, except as otherwise provided in this Agreement, are to be used in making the calculations for purposes of determining compliance with this Agreement, it being understood that the annual and quarterly financial statements to be delivered by the Borrower or Co-Borrower shall be deemed prepared in accordance with “GAAP” for purposes of this Agreement notwithstanding that such financial statements contain adjustments for the market value of the Properties of the Borrower or Co-Borrower (as reflected in the auditor’s statement that is contained in the most recent such annual financial statement provided to the Administrative Agent on or before the Closing Date) and that the treatment of depreciation charges in such quarterly financial statements is consistent with the treatment of depreciation charges in the most recent such quarterly financial statements provided to the Administrative Agent on or before the Closing Date. 

“General Assignment” shall mean that certain Assignment of Contracts and Government Approvals substantially in the form of Exhibit F attached hereto, to be executed, dated and delivered by the Borrower or Co-Borrower to the Administrative Agent (on behalf of the Lenders) on the Closing Date, as the same may be Modified and in effect from time to time.

“Government Approval” shall mean any action, authorization, consent, approval, license, ruling, permit, tariff, rate, certification, exemption, filing or registration by or with any Governmental Authority, including all licenses, permits, allocations, authorizations, approvals and certificates obtained by or in the name of, or assigned to, the Borrower and used in connection with the ownership, construction, operation, use or occupancy of the Projects, including building permits, certificates of occupancy, zoning and planning approvals, business licenses, licenses to conduct business, and all such other permits, licenses and rights.

“Governmental Authority” shall mean any governmental department, commission, board, bureau, agency, regulatory authority, instrumentality, judicial or administrative body, federal, state or local, foreign or domestic, having jurisdiction over the matter or matters in question.

“Guarantee” shall mean a guarantee, an endorsement, a contingent agreement to purchase or to furnish funds for the payment or maintenance of, or otherwise to be or become

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contingently liable under or with respect to, the Indebtedness, other obligations, net worth, working capital or earnings of any Person, or a guarantee of the payment of dividends or other distributions upon the stock or equity interests of any Person, or an agreement to purchase, sell or lease (as lessee or lessor) Property, products, materials, supplies or services primarily for the purpose of enabling a debtor to make payment of such debtor’s obligations or an agreement to assure a creditor against loss, and including causing a bank or other financial institution to issue a letter of credit or other similar instrument for the benefit of another Person, but excluding endorsements for collection or deposit in the ordinary course of business.  The terms “Guarantee” and “Guaranteed” used as a verb shall have a correlative meaning. 

“Guaranteed Line of Credit” shall have the meaning set forth in Section 9.04(h). 

“Guarantor” shall mean the Borrower’s Manager, in its capacity as the guarantor under the Borrower’s Manager’s Limited Indemnity and Guarantee. 

“Guarantor Documents” shall mean the Borrower’s Manager’s Limited Indemnity and Guarantee. 

“Hazardous Substance” shall mean, collectively, (a) any petroleum or petroleum products, flammable materials, explosives, radioactive materials, asbestos, urea formaldehyde foam insulation, Mold, and transformers or other equipment that contain polychlorinated biphenyls (“PCB’s”), (b) any chemicals or other materials or substances that are now or hereafter become defined as or included in the definition of “hazardous substances”, “hazardous wastes”, “hazardous materials”, “extremely hazardous wastes”, “restricted hazardous wastes”, “toxic substances”, “toxic pollutants”, “contaminants”, “pollutants” or words of similar import under any Environmental Law and (c) any other chemical or other material or substance, exposure to which is now or hereafter prohibited, limited or regulated under any Environmental Law.

“Hedge Agreement” shall mean any Swap Agreement or Swap Agreements between the Borrower, the Co-Borrower or Other Swap Pledgor and one or more financial institutions providing for the transfer or mitigation of interest risks with respect to the Loans, either generally or under specific contingencies, as the same may be Modified and in effect from time to time in accordance with Section 8.19. 

“Hedge Agreement Pledge” shall mean that certain Assignment, Pledge and Security Agreement substantially in the form of Exhibit G-1 or G-2, as applicable, attached hereto, to be executed, dated and delivered by the Borrower, the Co-Borrower or Other Swap Pledgor to the Administrative Agent (on behalf of the Lenders) in accordance with Section 8.19 and at any other time the Borrower or Co-Borrower elects or is required to enter into, or cause to be delivered, a Hedge Agreement, covering the Borrower’s, the Co-Borrower’s or the Other Swap Pledgor’s right, title and interest in and to any such Hedge Agreement, as the same may be Modified and in effect from time to time. 

“Hedging Termination Date” shall mean the date which is three (3) months prior to August 1, 2010.

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“Immaterial Subsidiary” shall mean any Subsidiary of the Borrower or Co-Borrower which has incurred no Indebtedness other than (i) Indebtedness which is non-recourse to such Subsidiary, the Bankruptcy Parties and the Named Principals (except for “carve-outs” (or Guarantees guarantying the debtor’s liability with respect to “carve-outs”) for fraud, misrepresentation, misappropriation and other exceptions-from-non-recourse customary in the real estate finance industry and not materially more favorable to such lender than the exceptions-from-non-recourse set forth in the second sentence of Sections 14.23(a) (and which shall in no event include any recourse obligation of the Borrower on account of the occurrence with respect to such Subsidiary or any other Person of any event of the type described in Sections 12.01(d), (e) or (f) hereof)) and (ii) Indebtedness which, in the aggregate for all such Immaterial Subsidiaries, does not exceed ten percent (10%) of the aggregate Indebtedness of the Borrower, the Co-Borrower and their respective Subsidiaries. 

“Improvements” shall have the meaning assigned to such term in the Recitals.

“Indebtedness” of any Person means, without duplication, (a) all obligations of such Person for borrowed money or with respect to deposits or advances of any kind, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person upon which interest charges are customarily paid, (d) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (e) all obligations of such Person in respect of the deferred purchase price of property or services (excluding current accounts payable incurred in the ordinary course of business), (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person of Indebtedness of others or performance of obligations, (h) all Capital Lease Obligations of such Person, (i) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (j) all obligations under or in respect of Swap Agreements and (k) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances.  The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.

“Indemnified Parties” shall mean the Administrative Agent, the Arranger, the Affiliates of the Administrative Agent, the Arranger, and each Lender and each of the foregoing parties’ respective directors, officers, employees, attorneys, agents, successors and assigns.

“Indemnified Taxes” shall mean Taxes other than Excluded Taxes.

“Information” has the meaning assigned to such term in Section 14.24.

“Insurance Premiums” shall have the meaning assigned to such term in Section 8.05(b).

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“Insurance Proceeds” shall mean all insurance proceeds, damages, claims and rights of action and the right thereto under any insurance policies relating to the Projects. 

“Insurance Threshold Amount” shall have the meaning assigned to such term in Section 10.01(b).

“Interest Period” shall mean, at all times following the Stub Interest Period, with respect to any Eurodollar Loan, each period commencing on the date such Eurodollar Loan is made or Converted from a Base Rate Loan or (in the event of a Continuation) the last day of the immediately preceding Interest Period for such Loan and ending on the numerically corresponding day in the first, second, third, sixth or (but only if available from all Lenders) twelfth calendar month thereafter, as the Borrower or Co-Borrower may select as provided in Section 4.05; provided that, (i) except for the Stub Interest Period and the initial interest period for Loans made pursuant to Section 2.11, each Interest Period that commences on the last Business Day of a calendar month (or on any day for which there is no numerically corresponding day in the appropriate subsequent calendar month) shall end on the last Business Day of the appropriate subsequent calendar month; (ii) each Interest Period that would otherwise end on a day that is not a Business Day shall end on the next succeeding Business Day (or, if such next succeeding Business Day falls in the next succeeding calendar month, on the immediately preceding Business Day); (iii) except for the Stub Interest Period and the initial interest period for any Loans made pursuant to Section 2.11, no Interest Period shall have a duration of less than one month and, if the Interest Period for any Eurodollar Loan would otherwise be a shorter period (other than for the Stub Interest Period or the initial interest period for Loans made pursuant to Section 2.11), such Loan shall bear interest at the Base Rate plus the Applicable Margin for Base Rate Loans; (iv) in no event shall any Interest Period extend beyond the Maturity Date; and (v) there may be no more than seven (7) separate Interest Periods in respect of Eurodollar Loans outstanding from each Lender at any one time.  The first Interest Period shall be the Stub Interest Period.  Notwithstanding the foregoing, the Borrower may elect to have the initial Interest Period with respect to Loans made pursuant to Section 2.11 commence upon the date such Loan is funded and expire upon (but not include) the first Business Day of the next calendar month thereafter. 

“Interest Rate Hedge Period” shall have the meaning assigned to such term in Section 8.19(a).

“Investment” shall mean, for any Person:  (a) the acquisition (whether for cash, Property, services or securities or otherwise) of capital stock, bonds, notes, debentures, partnership or other ownership interests or other securities of any other Person or any agreement to make any such acquisition (including any “short sale” or any sale of any securities at a time when such securities are not owned by the Person entering into such sale); (b) the making of any deposit with, or advance, loan or other extension of credit to, any other Person (including the purchase of Property from another Person subject to an understanding or agreement, contingent or otherwise, to resell such Property to such Person), but excluding any such advance, loan or extension of credit having a term not exceeding ninety (90) days arising in connection with the sale of inventory or supplies by such Person in the ordinary course of business; (c) the entering into of any Guarantee of, or other contingent obligation with respect to, Indebtedness or other

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liability of any other Person and (without duplication) any amount committed to be advanced, lent or extended to such Person; or (d) the entering into of any Swap Agreement (other than the Hedge Agreement or any Excess Hedge Agreement).

“Joinder” shall have the meaning assigned to such term in Section 2.11(g). 

“Joinder and Supplement” shall have the meaning assigned to such term in the preamble.

“Lease Approval Package” shall have the meaning assigned to such term in Section 9.09(b)(iii).

“Lease Information Summary” shall have the meaning assigned to such term in Section 9.09(b)(iii).

“Leases” shall mean all leases and other agreements or arrangements with or assumed by the Borrower or the Co-Borrower as landlord for the use or occupancy of all or any portion of the Projects, including any signage thereat, now in effect or hereafter entered into (including lettings, subleases, licenses, concessions, tenancies and other occupancy agreements with or assumed by the Borrower or the Co-Borrower as landlord covering or encumbering all or any portion of the Projects), together with any Guarantees, Modifications of the same, and all additional remainders, reversions and other rights and estates appurtenant thereto.

“Leasing Affidavit” shall have the meaning assigned to such term in Section 6.01(p).

“Lender” shall have the meaning assigned to such term in the preamble.

“LIBO Rate” shall mean, for any Interest Period for any Eurodollar Loan, the rate per annum appearing on Page 3750 of the Dow ▇▇▇▇▇ Markets Service (Telerate) (or on any successor or substitute page of such service, or any successor to or substitute for such service, providing rate quotations comparable to those currently provided on such page of such service, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to Dollar deposits in the London interbank market) at approximately 11:00 a.m. London time on the date two (2) Business Days prior to the first day of such Interest Period as the rate for Dollar deposits having a term comparable to such Interest Period and in an amount comparable to the amount of the applicable Eurodollar Loan, provided that if such rate does not appear on such page as of the date of determination, or if such page shall cease to be publicly available at such time, or if the information contained on such page, in the sole judgment of the Administrative Agent shall cease accurately to reflect the rate offered by leading banks in the London interbank market, the LIBO Rate shall be based on the rate that appears as of 11:00 a.m. London time on such date of determination on the LIBO Page of Reuters Screen for Dollar deposits having a term comparable to such Interest Period and in an amount comparable to the amount of the applicable Eurodollar Loan.  If both of such pages shall cease to be publicly available as of the time of determination, or if the information contained on such page, in the sole but reasonable judgment of the Administrative Agent shall cease

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accurately to reflect the rate offered by leading banks in the London interbank market, the LIBO Rate shall be based on the rate reported by any publicly available source of similar market data selected by the Administrative Agent that, in its sole but reasonable judgment, accurately reflects such rate offered by leading banks in the London interbank market.  The LIBO Rate for the Stub Interest Period shall be 4.4120% per annum.  The LIBO Rate for the initial Interest Period with respect to Loans made pursuant to Section 2.11 shall be a rate as quoted by the Administrative Agent to the Borrower two (2) Business Days prior to the commencement of such initial Interest Period, which quoted rate shall be determined in accordance with the foregoing definition of the term “LIBO Rate” but for a period equal to the initial Interest Period for such Loans (or, if rate quotations are not available for such period in accordance with such definition, then based on an interpolation of the rate quotations which are available for any lesser or greater periods, as determined by the Administrative Agent in its reasonable discretion). 

“Lien” shall mean, with respect to any Property (including the Projects), any mortgage, deed of trust, lien, pledge, charge, security interest or encumbrance of any kind in respect of such Property.  For purposes of this Agreement and the other Loan Documents, a Person shall be deemed to own subject to a Lien any Property that it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement (other than an operating lease) relating to such Property.

“Limiting Regulation” shall mean any law or regulation of any Governmental Authority, or any interpretation, directive or request under any such law or regulation (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) by any court or Governmental Authority or monetary authority charged with the interpretation or administration thereof, or any internal bank policy resulting therefrom (applicable to loans made in the United States of America) which would or could in any way require a Lender to have the approval right contained in the last paragraph of Section 9.03.

“Loan” and “Loans” shall have the respective meanings assigned to such terms in Section 2.01 with reference to the extensions of credit provided to the Borrower and Co-Borrower hereunder.

“Loan Documents” shall mean, collectively, this Agreement, the Notes, the Security Documents, the Environmental Indemnity, the Guarantor Documents and each other agreement, instrument or document (excluding any Hedge Agreement or Excess Hedge Agreement) required to be executed and delivered in connection with the Loans, together with any Modifications thereof.

“Loan Transactions” shall have the meaning assigned to such term in Section 4.04.

“Losses” shall have the meaning assigned to such term in Section 14.04.

“Low DSCR Release Event” shall mean, at any time after the occurrence of a Low DSCR Trigger Event, that the Debt Service Coverage Ratio shall be at or above 1:20:1.00 for a period of at least two (2) consecutive calendar quarters.

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“Low DSCR Trigger Event” shall mean, at any time prior to the Maturity Date, that the Debt Service Coverage Ratio measured as of the end of any calendar quarter is less than 1:15:1.00.

“Low DSCR Trigger Period” shall mean the period of time after a Low DSCR Trigger Event until the occurrence of a Low DSCR Release Event.

“LP Claim” shall have the meaning set forth in Section 7.35.

“Major Default” shall mean (i) any Event of Default; (ii) any Default arising from the failure to make any payment on account of interest to any Lender required under the Loan Documents or any fees payable to the Administrative Agent under the Fee Letter, in each case on or before the due date therefor; and (iii) any other Default written notice of which has been delivered by the Administrative Agent to the Borrower unless, in the case of this clause (iii), the Borrower has provided written notice to the Administrative Agent, within seven (7) days after notice of such Default has been delivered to the Borrower, stating that the Borrower shall undertake to cure such Default on or prior to the expiration of the applicable cure period therefor, if any, set forth in the definition of the term “Event of Default” (and setting forth the steps that the Borrower intends to take in order to effectuate such cure), and the Administrative Agent shall not have provided notice to the Borrower within five (5) Business Days after receipt of such notice from the Borrower, setting forth the Administrative Agent’s determination, in its reasonable discretion, that the steps set forth in the notice from the Borrower are not likely to result in the timely cure of such default.  Notwithstanding the foregoing, for purposes of Sections 13.08 and 14.07(b)(i)(A), a Major Default of the type described in clause (ii) above shall not be deemed to “exist” unless the Borrower has received notice of such Major Default and has failed to cure such Major Default within five (5) Business Days.

“Major Lease” shall mean one or more Leases to the same tenant or its Affiliates covering an aggregate of either (i) 20% of the rentable square footage of any Project or (ii) 30,000 rentable square feet or more. 

“Material Adverse Effect” shall mean a material adverse effect, as determined by the Administrative Agent, in its reasonable judgment and discretion, on (a) any Project or the business, operations, financial condition, liabilities or capitalization of the Borrower, (b) the ability of the Borrower or any other Borrower Party to pay or perform (or cause to be performed) its respective material obligations under any of the Loan Documents to which it is a party, including the timely payment of the principal of or interest on the Loans or other amounts payable in connection therewith, (c) the Administrative Agent’s Liens in any of the collateral securing the Loans or the priority of any such Liens, (d) the validity or enforceability of any of the Loan Documents or (e) the rights and remedies of the Lenders and the Administrative Agent under any of the Loan Documents.

“Maturity Date” shall mean the earliest of (a) the Stated Maturity Date or (b) the date as to any Loans on which the Outstanding Principal Amounts under the Notes evidencing such Loans are accelerated or automatically become due and payable pursuant to the terms of the Notes or any other Loan Document.

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“Maximum Rate” shall have the meaning assigned to such term in Section 14.25.

“Modifications” shall mean any amendments, supplements, modifications, renewals, replacements, consolidations, severances, substitutions and extensions thereof from time to time; “Modify”, “Modified”, or related words shall have meanings correlative thereto.

“Mold” shall mean any microbial or fungus contamination or infestation in any Project of a type which could reasonably be anticipated (after due inquiry and investigation) to pose a risk to human health or the environment or could reasonably be anticipated (after due inquiry and investigation) to negatively impact the value of such Project in any material respect. 

“Moody’s” shall mean ▇▇▇▇▇’▇ Investors Service, Inc., or any successor thereto.

“Multiemployer Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA.

“Named Principals” shall mean ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇. 

“Net Operating Income” shall mean, for any period, the excess, if any, of Operating Income for such period over Operating Expenses for such period.

“Net Proceeds” shall have the meaning assigned to such term in Section 10.03(b).

“Net Proceeds Deficiency” shall have the meaning assigned to such term in Section 10.03(h). 

“New Lender” shall have the meaning ascribed to such term in Section 2.11(e). 

“Note A” shall mean those certain notes or note denominated “Note A” dated concurrently with the Loan Agreement, executed by Borrower and Co-Borrower to the order of the Lender named therein, in the aggregate original principal amount of $62,678,062.68, as the same may be Modified from time to time.  Each Note A shall constitute a “Note” for all purposes under this Agreement and the other Loan Documents. 

“Note A Applicable Margin” shall mean (a) for Base Rate Loans, 80 basis points per annum; and (b) for Eurodollar Loans, 65 basis points per annum. 

“Note B” shall mean those certain notes or note denominated “Note B” dated concurrently with the Loan Agreement, executed by Borrower and Co-Borrower to the order of the Lender named therein, in the aggregate original principal amount of $41,054,131.06, as the same may be Modified from time to time.  Each Note B shall constitute a “Note” for all purposes under this Agreement and the other Loan Documents. 

“Note B Applicable Margin” shall mean (a) for Base Rate Loans, 110 basis points per annum; and (b) for Eurodollar Loans, 85 basis points per annum. 

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“Note C” shall mean those certain notes or note denominated “Note C” dated concurrently with the Loan Agreement, executed by Borrower and Co-Borrower to the order of the Lender named therein, in the aggregate original principal amount of $6,267,806.26, as the same may be Modified from time to time.  Each Note C shall constitute a “Note” for all purposes under this Agreement and the other Loan Documents. 

“Note C Applicable Margin” shall mean (a) for Base Rate Loans, 410 basis points per annum; and (b) for Eurodollar Loans, 285 basis points per annum. 

“Notes” shall mean, collectively, each Note A, Note B, Note C and each other promissory note hereafter executed by the Borrower and Co-Borrower to the order of any of the Lenders evidencing such Lender’s respective Commitment and Loans, as such notes may be Modified or substituted and in effect from time to time.  Subject to such modifications thereto as may be deemed necessary by the Administrative Agent to reflect the Applicable Margin applicable to such Notes or to denominate any such Note as a Note A, Note B, Note C or similar reference, and subject to the provisions of Section 14.30, each of the Notes shall be substantially in the form of Exhibit H attached hereto. 

“Obligations” means all obligations, liabilities and indebtedness of every nature of the Borrower or Co-Borrower from time to time owing to the Administrative Agent or any Lender under or in connection with this Agreement, the Notes or any other Loan Document to which it is a party, including principal, interest, fees (including fees of counsel), and expenses whether now or hereafter existing under the Loan Documents to which it is a party.

“OECD” has the meaning assigned to such term in the definition of “Eligible Assignee”. 

“OP Merger Sub” shall have the meaning set forth in Section 14.31. 

“Operating Expenses” shall mean, for any period, all expenditures, computed in accordance with GAAP, of whatever kind or nature relating to the ownership, operation, maintenance, repair or leasing of the Projects that are incurred on a regular monthly or other periodic basis, including (a) allocated amounts on account of Insurance Premiums and Real Estate Taxes, prorated on an annual basis, (b) management fees in an amount which is the greater of (i) management fees actually paid and (ii) management fees at an imputed rate of 2.0% of Operating Income for such period and (c) imputed capital expenditure in an amount equal to a prorated portion of an annual amount equal to $0.20 per square foot; provided, however, that Operating Expenses shall not include (i) depreciation, amortization and other non-cash charges or capital expenditures (except as provided above), (ii) leasing commissions, tenant improvement allowances or other expenditures incurred for tenant improvements, (iii) any deposits to cash reserves (if any) required to be maintained under the Loan Documents (except if and to the extent any sums are withdrawn therefrom to pay (and are actually used to pay) expenses which otherwise constitute Operating Expenses without duplication), (iv) any payment or expense for which the Borrower or the Co-Borrower was or is to be reimbursed by any third party if the receipt of the related reimbursement payment is required to be excluded in the calculation of Operating Income, (v) any payment payable by the Borrower, the Co-Borrower or any Other

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Swap Pledgor under the Hedge Agreement, (vi) any changes in value of derivative contracts or of the Projects, and (vii) any principal, interest or other debt service payable with respect to the Loans.  Operating Expenses shall be determined on an annualized basis based on the relevant quarterly results for purposes of Section 2.09(a), and on a projected annual basis for purposes of Section 10.03(c)(iv). 

“Operating Income” shall mean, for any period, all regular ongoing income, computed in accordance with GAAP (but without taking into account any treatment of Rent on a straight-line amortization basis over the term of a lease that would otherwise be required by GAAP), during such period from the ownership or operation, or otherwise arising in respect, of the Projects, including (a) all amounts payable to the Borrower or the Co-Borrower by any Person as Rents under Approved Leases, (b) business interruption proceeds and rent loss insurance proceeds (except with respect to any Leases that have been terminated as of the date of computation as a result of any Casualty Event or Taking) and (c) all other amounts which are included in the Borrower’s or the Co-Borrower’s financial statements as operating income of the Projects, including, receipts from leases and parking agreements, concession fees and charges, other miscellaneous operating revenues, but excluding any extraordinary income, including (i) any Condemnation Awards or Insurance Proceeds (other than business interruption and rent loss proceeds as aforementioned), (ii) any item of income otherwise includable in Operating Income but paid directly to a Person other than the Borrower or the Co-Borrower, or their representative or its Affiliate (except, in each case, to the extent the Borrower or the Co-Borrower receives monetary credit for such payment from the recipient thereof or such item is treated as an income item to the Borrower or the Co-Borrower, in accordance with GAAP), (iii) security deposits and ▇▇▇▇▇▇▇ money deposits received from tenants until forfeited or applied in accordance with their Leases, (iv) lease buyout payments made by tenants in connection with any surrender, cancellation or termination of their Leases, (v) any disbursements to the Borrower or the Co-Borrower from the Cash Trap Account (it being understood that nothing set forth in this clause (v) shall prevent the receipt of funds that have been deposited into the Cash Trap Account from being treated as Operating Income when received to the extent such receipt otherwise constitutes Operating Income as provided in the definition thereof), (vi) any changes in value of derivative contracts or of the Projects, and (vii) any payment payable to the Borrower, the Co-Borrower or any Other Swap Pledgor under the Hedge Agreement.  Operating Income shall be determined on an annualized basis based on the relevant quarterly results for purposes of Section 2.09(a), and on a projected annual basis for purposes of Section 10.03(c). 

“Operating Partnership” shall mean, with respect to a Permitted REIT, its affiliated operating partnership majority-owned and controlled, directly or indirectly, by such Permitted REIT through which such REIT holds substantially all of its assets. 

“Organizational Documents” shall mean (a) for any corporation, the certificate or articles of incorporation, the bylaws, any certificate of determination or instrument relating to the rights of preferred shareholders of such corporation, any shareholder rights agreement, and any amendments thereto, (b) for any limited liability company, the articles of organization and any certificate relating thereto and the limited liability company (or operating) agreement of such limited liability company, and any amendments thereto, and (c) for any partnership (general or limited), the certificate of limited partnership or other certificate pertaining to such partnership

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and the partnership agreement of such partnership (which must be a written agreement), and any amendments thereto.

“Other Charges” shall mean all ground rents, maintenance charges, impositions other than Real Estate Taxes, and any other charges, including vault charges and license fees for the use of vaults, chutes and similar areas adjoining the Projects, now or hereafter levied or assessed or imposed against the Projects or any part thereof, other than Excluded Taxes.

““Other Swap Pledgor” shall mean (i) Borrower’s Member, (ii) Co-Borrower, (iii) any Qualified Successor Entity to whom the Projects are transferred pursuant to Section 9.03(a)(iii), (iv) any entity that qualifies under clause (I) of the definition of Qualified Successor Entity, (v) a Permitted Public REIT, its Operating Partnership or any Permitted Public REIT Subsidiary and/or (vi) a Permitted Private REIT or any Permitted Private REIT Subsidiary. 

“Other Taxes” means any and all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made under any Loan Document or from the execution, delivery, ownership or enforcement of, or otherwise with respect to, any Loan Document.

“Outstanding Principal Amount” shall mean the outstanding principal amount of the Loans at any point in time after giving effect to any repayment thereof pursuant to Sections 2.06, 2.07, 2.09 and 3.01 or other applicable provisions of this Agreement. 

“Participant” shall have the meaning assigned to such term in Section 14.07(c)(i).

“Payment Date” shall mean the first Business Day of each calendar month.  The first Payment Date shall be October 1, 2005. 

“Payor” shall have the meaning assigned to such term in Section 4.06.

“PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.

“Permitted Investments” shall mean:  (a) direct obligations of the United States of America, or of any agency thereof, or obligations guaranteed as to principal and interest by the United States of America, or by any agency thereof, in either case maturing not more than ninety (90) days from the date of acquisition thereof; (b) certificates of deposit issued by any bank or trust company organized under the laws of the United States of America or any state thereof and having capital, surplus and undivided profits of at least $500,000,000, maturing not more than ninety (90) days from the date of acquisition thereof; and (c) commercial paper rated A-1 or P-1 or better by S&P or Moody’s, respectively, maturing not more than ninety (90) days from the date of acquisition thereof; in each case so long as the same (i) provide for the payment of principal and interest (and not principal alone or interest alone) and (ii) are not subject to any contingency regarding the payment of principal or interest.

“Permitted Liens” shall mean for each Project: (a) any Lien created by the Loan Documents, (b) Liens for Real Estate Taxes not yet delinquent and Liens for Other Charges

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imposed by any Governmental Authority not yet due or delinquent, (c) rights of existing and future tenants under Approved Leases as tenants only, (d) Permitted Title Exceptions that constitute Liens, (e) utility and other easements entered into by the Borrower or the Co-Borrower in the ordinary course of business having no adverse impact on the occupation, use, enjoyment, operation, value or marketability of any Project and approved in advance in writing by the Administrative Agent in its reasonable discretion, (f) any Lien for the performance of work or the supply of materials affecting any Project unless the Borrower or Co-Borrower fails to discharge such Lien by payment or bonding (in accordance with statutory bonding requirements the effect of which is to release such Lien from the affected Project and to limit the Lien claimant’s rights to a recovery on the bond) on or prior to the date that is the earlier of (i) thirty (30) days after the date of filing of such Lien and (ii) the date on which the Project or the Borrower’s or Co-Borrower’s interest therein is subject to risk of sale, forfeiture, termination, cancellation or loss, (g) any Lien consisting of the rights of a lessor under equipment leases which are entered into in compliance with Sections 9.02(h) and 9.04(d), and (h) any other title and survey exceptions (not referred to in clauses (a) through (g) above) affecting the Projects as the Administrative Agent may approve in advance in writing and in its sole discretion. 

“Permitted Private REIT” shall have the meaning set forth in Section 9.03(a)(iii).

“Permitted Private REIT Subsidiary” shall mean any wholly-owned Subsidiary of a Permitted Private REIT or its Operating Partnership.

“Permitted Public REIT” shall mean a REIT, in which, at the time of the initial public offering of shares therein, at least two (2) of the Named Principals are senior officers of such REIT.

“Permitted Public REIT Subsidiary” shall mean any wholly-owned Subsidiary of the Permitted Public REIT or its Operating Partnership.

“Permitted Public REIT Transfer” shall mean (a) a transfer, through one or a series of related transactions, of one hundred percent (100%) of the direct or indirect Equity Interests in the Borrower or the Co-Borrower or any Qualified Successor Entity to the Permitted Public REIT, its Operating Partnership or a Permitted Public REIT Subsidiary in accordance with this Agreement; provided that the Projects continue to be directly owned by the Borrower or the Co-Borrower or such Qualified Successor Entity, as the case may be, or (b) a transfer, in compliance with Section 9.03(a)(iii), of all but not less than all of the Projects to a Qualified Successor Entity that is a Permitted Public REIT Subsidiary of the Permitted Public REIT (other than its Operating Partnership).  Nothing in this definition or in Section 9.03(a)(iii) shall prohibit the transfer by the Co-Borrower of the Co-Borrower Projects to a separate Qualified Successor Entity provided that (i) the Borrower shall transfer the Projects owned by the Borrower to the same Qualified Successor Entity or to another Qualified Successor Entity that qualifies as such pursuant to the same clause (i.e., clause (I), (II) or (III) of the definition of Qualified Successor Entity set forth in Section 9.03(a)(iii)), or (ii) direct or indirect Equity Interests in the Borrower are transferred to a Person that controls, is controlled by or is under common control with the Qualified Successor Entity to which the Co-Borrower Projects are transferred and such transfer of Equity Interests is otherwise permitted by this Agreement.

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“Permitted REIT” shall mean a Permitted Private REIT or the Permitted Public REIT.

“Permitted REIT Subsidiary” shall mean a Permitted Public REIT Subsidiary or a Permitted Private REIT Subsidiary.

“Permitted Reorganization” shall have the meaning set forth in Section 14.31.  

“Permitted Title Exceptions” shall mean as to any Project, the outstanding liens, easements, restrictions, security interests and other exceptions to title set forth in the policy of title insurance insuring the lien of the Deed of Trust encumbering such Project approved by the Administrative Agent.

“Person” shall mean any individual, corporation, company, voluntary association, partnership, limited liability company, joint venture, trust, unincorporated organization or government (or any agency, instrumentality or political subdivision thereof).

“Plan” shall mean any employee pension benefit plan (other than a Multiemployer Plan) as defined in Section 3(2) of ERISA, and in respect of which any Borrower Party or its ERISA Affiliates is (or, if such plan were terminated, would, if the Plan were subject to Title IV of ERISA, under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

“Policy” and “Policies” shall have the respective meanings assigned to such terms in Section 8.05(b).

“Post-Default Rate” shall mean a rate per annum equal to 5% plus the Base Rate as in effect from time to time plus the Applicable Margin for Base Rate Loans, provided that, with respect to principal of a Eurodollar Loan, the “Post-Default Rate” shall be the greater of (a) 5% plus the interest rate for such Loan as provided in Section 3.02(a)(ii) and (b) the rate provided for above in this definition; provided, however, that in no event shall the Post-Default Rate exceed the Maximum Rate. 

“Primary Credit Facility” means, with respect to any Permitted REIT, the primary credit facility under which such Permitted REIT obtains financing for its general purposes. 

“Principal Office” shall mean the office of Eurohypo, located on the date hereof at 1114 Avenue of the Americas, 29^th Floor, New York, New York, or such other office as the Administrative Agent shall designate upon ten (10) days’ prior notice to the Borrower and Co-Borrower and the Lenders. 

“Principals” shall mean the Named Principals and any other Person holding ten percent (10%) or more of the shares, partnership interests, membership interests, or other voting or beneficial interests in Borrower’s Manager.  As of the date hereof, the Named Principals own all of the shares in Borrower’s Manager. 

“Project” shall have the meaning assigned to such term in the Recitals.

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“Project-Level Account” shall have the meaning assigned to such term in the Project-Level Account Security Agreement. 

“Project-Level Account Security Agreement” shall mean the Project-Level Account Security Agreement, among the Borrower or Co-Borrower, the Administrative Agent (on behalf of the Lenders) and the Depository Bank, substantially in the form of Exhibit I attached hereto, delivered on the Closing Date, as the same may be Modified and in effect from time to time. 

“Property” shall mean any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible.

“Property Condition Report” shall mean, collectively, those certain property condition reports for each Project prepared for the Administrative Agent and listed on Schedule 1.01(7) attached hereto.  The Administrative Agent acknowledges receipt of copies of the foregoing Property Condition Reports. 

“Property Management Agreement” shall mean, collectively, (a) each Property Management Agreement between the Borrower and the Property Manager listed on Schedule 1.01(8) attached hereto and (b) any other property management and/or leasing agreement entered into with a Property Manager appointed in accordance with the definition of Property Manager contained in this Section 1.01, as the same shall be Modified in accordance with the provisions of this Agreement.

“Property Manager” shall mean ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and Company or such successor manager and/or leasing agent as shall be reasonably approved by the Administrative Agent or otherwise permitted without such approval pursuant to Section 9.15 or Section 14.31.

“Property Manager’s Consent” shall mean a Property Manager’s Consent and Subordination of Property Management Agreement substantially in the form of Exhibit J attached hereto, to be executed, dated and delivered by (a) the Property Manager and the Borrower or Co-Borrower to the Administrative Agent (on behalf of the Lenders) on the Closing Date and (b) any other Property Manager to the Administrative Agent (on behalf of the Lenders) prior to its appointment as Property Manager, as such agreements may be Modified and in effect from time to time.

“Proportionate Share” shall mean, with respect to each Lender, the percentage set forth opposite such Lender’s name on Schedule 1.01(4) attached hereto under the caption “Proportionate Share” or in the Assignment and Assumption or in the Joinder (in accordance with the terms of this Agreement) pursuant to which such Lender became a party hereto, in any case, as such percentage may be Modified in the most recent Assignment and Assumption (in accordance with the terms of this Agreement) to which such Lender is a party or which may be Modified by a Joinder pursuant to Section 2.11(g).  The aggregate Proportionate Shares of all Lenders shall equal one hundred percent (100%).

“Proposed Lender” shall have the meaning assigned to such term in Section 5.07.

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“Qualified Real Estate Interest” shall mean any real estate asset of a type and quality, located in markets, consistent with the Projects or any Residential Property as of the date this Agreement is entered into or which is otherwise consistent with the investment practices prior to the date hereof of the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Realty Funds taken as a whole and which is acquired after the Closing Date directly by the Borrower or the Co-Borrower or by a Qualified Sub-Tier Entity. 

“Qualified Successor Entity” shall have the meaning set forth in Section 9.03(a)(iii). 

“Qualified Sub-Tier Entity” means an entity wholly- or majority-owned and controlled by the Borrower or the Co-Borrower. 

“Real Estate Taxes” shall mean all real estate taxes and all general and special assessments, levies, permits, inspection and license fees, all water and sewer rents and charges, all charges for utilities and all other public charges whether of a like kind or different nature, imposed upon or assessed against the Borrower or the Co-Borrower, the Projects or any part thereof or upon the revenues, rents, issues, income and profits of the Projects or arising in respect of the occupancy, use or possession thereof.

“Register” shall have the meaning assigned to such term in Section 14.07(b)(iv).

“Regulations A, D, T, U and X” shall mean, respectively, Regulations A, D, T, U and X of the Board of Governors of the Federal Reserve System (or any successor), as the same may be Modified and in effect from time to time.

“Regulatory Change” shall mean, with respect to any Lender, any change after the Closing Date in federal, state or foreign law or regulations (including Regulation D) or the adoption or making after such date of any interpretation, directive or request applying to a class of banks including such Lender of or under any federal, state or foreign law or regulations (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) by any Governmental Authority or monetary authority charged with the interpretation or administration thereof.

“REIT” shall mean a real estate investment trust as defined in Sections 856-860 of the Code.

“REIT Merger Sub 1” shall have the meaning set forth in Section 14.31.

“REIT Merger Sub 2” shall have the meaning set forth in Section 14.31.

“Rejecting Lender” shall have the meaning set forth in Section 9.03(c).

“Related Entity” shall mean, as to any Person, (a) any other Person which directly or indirectly owns 51% or more of the partnership, membership or other ownership interests of such Person and directly or indirectly controls such Person; (b) any other Person into which, or with which, such Person is merged, consolidated or reorganized, or which is otherwise a

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successor to such Person by operation of law, or which acquires all or substantially all of the assets of such Person; (c) any other Person which is a successor to the business operations of such Person and engages in substantially the same activities; or (d) any other Person in which a Person described in clauses (b) and (c) of this definition directly or indirectly owns 51% or more of the partnership, membership or other ownership interests of such Person and directly or indirectly controls such Person.  As used in this definition, “control” (including, with its correlative meanings, “controlled by” and “under common control with”) shall mean possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise).

“Related Party” shall mean:

(i)                                     any family member of any Named Principal; or

(ii)                                  any trust, corporation, partnership, limited liability company or other entity, in which any Named Principal and/or such other persons referred to in the immediately preceding clause (i) have a controlling interest. 

“Release” shall mean any release, spill, emission, leaking, pumping, injection, pouring, dumping, deposit, disposal, discharge, dispersal, leaching, seeping or migration into the indoor or outdoor environment, including the movement of Hazardous Substances through ambient air, soil, surface water, ground water, wetlands, land or subsurface strata.

“Remediation” shall mean, without limitation, any investigation, site monitoring, response, remedial, removal, or corrective action, any activity to cleanup, detoxify, decontaminate, contain or otherwise remediate any Hazardous Substance, any actions to prevent, cure or mitigate any Release of any Hazardous Substance, any action to comply with any Environmental Laws or with any permits issued pursuant thereto, any inspection, investigation, study, monitoring, assessment, audit, sampling and testing, laboratory or other analysis, or evaluation relating to any Hazardous Substances.  “Remediate” shall have a correlative meaning. 

“Rents” means all rents (whether denoted as base rent, advance rent, minimum rent, percentage rent, additional rent or otherwise), issues, income, royalties, profits, revenues, proceeds, bonuses, deposits (whether denoted as security deposits or otherwise), termination fees, rejection damages, buy-out fees and any other fees made or to be made in lieu of rent to the Borrower or the Co-Borrower, any award made hereafter to the Borrower or the Co-Borrower in any court proceeding involving any tenant, lessee, licensee or concessionaire under any of the Leases in any bankruptcy, insolvency or reorganization proceedings in any state or federal court, and all other payments, rights and benefits of whatever nature from time to time due to the Borrower or the Co-Borrower under the Leases (including any Leases with respect to signage), including (i) rights to payment earned under the Leases, (ii) any payments or rights to payment with respect to parking facilities or other facilities in any way contained within or associated with the Projects, and (iii) all other income, consideration, issues, accounts, profits or benefits of any nature arising from the possession, use and operation of the Projects.

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“Requesting Lender” shall have the meaning assigned to such term in Section 5.07.

“Required Lenders” shall mean Lenders holding at least 66.67% of the Outstanding Principal Amount.

“Required Payment” shall have the meaning assigned to such term in Section 4.06.

“Reserve Requirement” shall mean, for any Interest Period for any Eurodollar Loan, the average maximum rate at which reserves (including any marginal, supplemental or emergency reserves) are required to be maintained during such Interest Period under Regulation D by member banks of the Federal Reserve System in New York City with deposits exceeding one billion Dollars against “Eurocurrency liabilities” (as such term is used in Regulation D).  Without limiting the effect of the foregoing, the Reserve Requirement shall include any other reserves required to be maintained by such member banks by reason of any Regulatory Change with respect to (i) any category of liabilities that includes deposits by reference to which the LIBO Rate is to be determined as provided in the definition of “LIBO Rate” in this Section 1.01 or (ii) any category of extensions of credit or other assets that includes Eurodollar Loans. 

“Residential Properties” shall have no meaning for purposes of this Agreement.

“Restoration” shall have the meaning assigned to such term in Section 10.01(a).

“Restoration Consultant” shall have the meaning assigned to such term in Section 10.03(e).

“Restoration Retainage” shall have the meaning assigned to such term in Section 10.03(f).

“Restricted Payment” shall mean all distributions of the Borrower or the Borrower’s Member (in cash, Property or other obligations) on, or other payments or distributions on account of (or the setting apart of money for a sinking or other analogous fund for) the purchase, redemption, retirement or other acquisition of, any portion of any Equity Interest in the Borrower or the Borrower’s Member or of any warrants, options or other rights to acquire any such Equity Interest.

“Rollover Breakage Costs” shall have the meaning assigned to such term in Section 2.08.

“Security Accounts” shall mean, collectively, the Cash Trap Account, the Project-Level Account and any Controlled Account. 

“Security Documents” shall mean, collectively, the Deed of Trust, the Hedge Agreement Pledge, the Cash Trap Account Security Agreement, the Project-Level Account Security Agreement, the Controlled Account Agreement, the General Assignment and such other security documents as the Administrative Agent may reasonably request and all Uniform

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Commercial Code financing statements required by this Agreement, the Deed of Trust, the Hedge Agreement Pledge, the Cash Trap Account Security Agreement, the Project-Level Account Security Agreement, the Controlled Account Agreement, the General Assignment or any other security document the Administrative Agent may reasonably request to be filed with respect to the applicable security interests. 

“Significant Casualty Event” shall have the meaning assigned to such term in Section 10.01(b). 

“SNDA Agreement” shall mean (i) the form of Subordination, Non-Disturbance, and Attornment Agreement attached hereto as Exhibit K, (ii) any form attached to a Major Lease currently in effect or which has been approved by the Administrative Agent pursuant to the terms of this Agreement or (iii) such other form as is reasonably satisfactory to the Administrative Agent.

“Solvent” shall mean, when used with respect to any Person, that at the time of determination: (i) the fair saleable value of its assets is in excess of the total amount of its liabilities (including contingent liabilities); (ii) the present fair saleable value of its assets is greater than its probable liability on its existing debts as such debts become absolute and matured; (iii) it is then able and expects to be able to pay its debts (including contingent debts and other commitments) as they mature; and (iv) it has capital sufficient to carry on its business as conducted and as proposed to be conducted.

“S&P” shall mean Standard & Poor’s Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successor thereto.

“Stated Maturity Date” shall mean the date that is seven (7) years from the expiration of the Stub Interest Period, subject to Section 2.10.

“Stub Interest Period” shall mean the period commencing on the Closing Date and ending on (but not including) the first calendar day of the first month following the Closing Date (or if such day is not a Business Day, the next Business Day thereafter).

“Subsidiary” shall mean, with respect to any Person, any corporation, limited liability company, partnership or other entity of which at least a majority of the securities or other ownership interests having by the terms thereof ordinary voting power to elect a majority of the board of directors or other persons performing similar functions of such corporation, limited liability company, partnership or other entity (irrespective of whether or not at the time securities or other ownership interests of any other class or classes of such corporation, limited liability company, partnership or other entity shall have or might have voting power by reason of the happening of any contingency) is at the time directly or indirectly owned or controlled by such Person or one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person.

“Swap Agreement” means any agreement (whether one or more) with respect to any swap, forward, future or derivative transaction or option or similar agreement (including,

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without limitation, any cap or collar) involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions.  For purposes hereof, the credit exposure at any time of any Person under a Swap Agreement to which such Person is a party shall be determined at such time in accordance with the standard methods of calculating credit exposure under similar arrangements as reasonably prescribed from time to time by the Administrative Agent, taking into account (a) potential interest rate movements, (b) the respective termination provisions, (c) the notional principal amount and term of such Swap Agreement and (d) any provisions providing for the netting of amounts payable by and to a Person thereunder (or simultaneous payments of amounts by and to such Person).

“Syndication” shall have the meaning assigned to such term in Section 14.26.

“Taking” means a taking or voluntary conveyance during the term hereof of all or part of any Project or any interest therein or right accruing thereto or use thereof, as the result of, or in settlement of, any condemnation or other eminent domain proceeding by any Governmental Authority affecting such project or any portion thereof whether or not the same shall have actually been commenced.

“Taxes” shall mean any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority.

“Third Party Counterparty” shall have the meaning assigned to such term in Section 8.19(a). 

“Third Party Hedge Agreement” shall have the meaning assigned to such term in Section 8.19(c). 

“Title Company” shall mean Chicago Title Insurance Company and any one or more reinsurers identified on Schedule 1.01(9) attached hereto; provided, however, that (i) in no event shall the amount insured by any such title insurer exceed the limits shown on Schedule 1.01(9) and (ii) any reinsurance shall be subject to direct access agreements from such reinsurers.

“Title Policy” shall have the meaning assigned to such term in Section 6.01(k).

“Trading with the Enemy Act” shall mean 50 U.S.C. App. 1 et seq.

“Transactions” shall mean, collectively, (a) the execution, delivery and performance by the Borrower and Co-Borrower of this Agreement and the other Loan Documents to which it is a party, the borrowing of their Loans and the use of the proceeds thereof and (b) the execution, delivery and performance by the other Borrower Parties of the other Loan Documents to which they are a party and the performance of their obligations thereunder.

“Transfer” shall mean any transfer, sale, assignment, mortgage, encumbrance, pledge or conveyance, whether voluntary or involuntary. 

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“Trillium Commitment Amount” shall have the meaning set forth in Section 2.11(a). 

“Trillium Commitment Notice” shall have the meaning ascribed to such term in Section 2.11(e). 

“Trillium Commitment Request” shall have the meaning ascribed to such term in Section 2.11(a). 

“Trillium Project” shall mean the office property commonly known as the “Trillium”, located at ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, consisting of approximately 661,062 rentable square feet. 

“Type” shall have the meaning assigned to such term in Section 1.03.

“Uniform Commercial Code” shall mean the Uniform Commercial Code of the State of California, except with respect to those circumstances in which the Uniform Commercial Code of the State of California shall require the application of the Uniform Commercial Code of another state, in which case, for purposes of such circumstances, the “Uniform Commercial Code” shall mean the Uniform Commercial Code of such other state. 

“Use” shall mean, with respect to any Hazardous Substance, the generation, manufacture, processing, distribution, handling, use, treatment, recycling or storage of such Hazardous Substance or transportation to or from the property of such Person of such Hazardous Substance. 

“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan.

1.02                           Accounting Terms and Determinations.

(a)                                  Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time.

(b)                                 Without first obtaining the Administrative Agent’s consent, the Borrower will not change the last day of its fiscal year from December 31, or the last days of the first three fiscal quarters in each of its fiscal years.

1.03                           Types of Loans.  Loans hereunder are distinguished by “Type”.  The “Type” of a Loan refers to whether such Loan is a Base Rate Loan or a Eurodollar Loan, each of which constitutes a Type.

1.04                           Terms Generally.  The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.  The word “will” shall be construed to have the same meaning and effect as the word

35

“shall”.  Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time Modified (subject to any restrictions on such Modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights and (f) whenever this Agreement provides that any consent or approval will not be “unreasonably withheld” or words of like import, the same shall be deemed to include within its meaning that such consent or approval will not be unreasonably delayed or conditioned.

ARTICLE 2

COMMITMENTS, LOANS, NOTES AND PREPAYMENTS

2.01                           Loans.  Each Lender severally agrees, on the terms and conditions of this Agreement, to make a loan (each such loan being a “Loan” and collectively, the “Loans”) on a non-revolving basis to the Borrower and the Co-Borrower in Dollars on the Closing Date in a principal amount up to but not exceeding the amount of the Commitment of such Lender.  Thereafter the Borrower or Co-Borrower may Convert all or a portion of the Outstanding Principal Amount of one Type of Loan into another Type of Loan (as provided in Section 2.05) or Continue one Type of Loan as the same Type of Loan (as provided in Section 2.05), subject in all cases to the limit on the number of Interest Periods that may be outstanding at any one time as set forth in the definition of “Interest Period”. 

2.02                           Funding of Loans.  On the Closing Date, each Lender shall make available from its Applicable Lending Office the amount of the Loan to be made by it on such date to the Administrative Agent as specified by the Administrative Agent, in immediately available funds, for account of the Borrower or Co-Borrower, as applicable.  The amount so received by the Administrative Agent shall, subject to the terms and conditions of this Agreement, be made available to the Borrower or Co-Borrower, as applicable, in immediately available funds, for the uses and purposes identified on a sources and uses statement approved by the Administrative Agent, the Borrower and the Co-Borrower. 

2.03                           Several Obligations.  The failure of any Lender to make any Loan to be made by it on the date specified therefor shall not relieve any other Lender of its obligation to make its Loan on such date, but neither any Lender nor the Administrative Agent shall be responsible for the failure of any other Lender to make a Loan to be made by such other Lender.  The amounts payable by the Borrower at any time hereunder and under the Note to each Lender shall be a separate and independent debt.  It is understood and agreed that the Closing hereunder shall not occur unless each of the Lenders shall have funded the amount of the Loan to be made by it. 

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2.04                           Notes.

(a)                                  Notes.  The Loan made by each Lender shall be evidenced by its Note.

(b)                                 Substitution, Exchange and Subdivision of Notes.  No Lender shall be entitled to have its Note substituted or exchanged for any reason, or subdivided for promissory notes of lesser denominations, except (i) in connection with a permitted assignment of all or any portion of such Lender’s Commitment, Loan and Note pursuant, and subject to the terms and conditions of, Section 14.07(b) (and, if requested by any Lender in connection with such permitted assignment, the Borrower agrees to so exchange any such Note provided the original Note subject to such exchange has been delivered to the Borrower) (ii) as provided in Section 2.11 if the provisions of Section 2.11 are exercised by the Borrower or (iii) as provided in Section 14.30 with respect to severance of Notes if elected by Eurohypo, provided the original Note severed, split, divided or otherwise replaced pursuant to Section 14.30 has been delivered to the Borrower.

(c)                                  Loss, Theft, Destruction or Mutilation of Notes.  In the event of the loss, theft or destruction of any Note, upon the Borrower’s receipt of a reasonably satisfactory indemnification agreement executed in favor of the Borrower and Co-Borrower by the holder of such Note, or in the event of the mutilation of any Note, upon the surrender of such mutilated Note by the holder thereof to the Borrower, the Borrower and Co-Borrower shall execute and deliver to such holder a replacement Note in lieu of the lost, stolen, destroyed or mutilated Note.

2.05                           Conversions or Continuations of Loans. 

(a)                                  Subject to Section 4.04, the Borrower and Co-Borrower shall have the right to Convert Loans of one Type into Loans of another Type or Continue Loans of one Type as Loans of the same Type, at any time or from time to time; provided that:  (i) the Borrower or Co-Borrower shall give the Administrative Agent notice of each such Conversion or Continuation as provided in Section 4.05; (ii) Eurodollar Loans may be Converted only on the last day of an Interest Period for such Loans unless the Borrower or Co-Borrower complies with the terms of Section 5.05 and (iii) subject to Sections 5.01(a) and 5.03, any Conversion or Continuation of Loans shall be pro rata among the Lenders.  Notwithstanding the foregoing, and without limiting the rights and remedies of the Administrative Agent and the Lenders under Article XII, in the event that any Event of Default exists, the Administrative Agent may (and at the request of the Required Lenders shall) suspend the right of the Borrower and Co-Borrower to Convert any Loan into a Eurodollar Loan, or to Continue any Loan as a Eurodollar Loan for so long as such Event of Default exists, in which event all Loans shall be Converted (on the last day(s) of the respective Interest Periods therefor) into, or Continued as, as the case may be, Base Rate Loans.  In connection with any such Conversion, a Lender may (at its sole discretion) transfer a Loan from one Applicable Lending Office to another.

(b)                                 Notwithstanding anything to the contrary contained in this Agreement, at any time that a Hedge Agreement is in effect, the Borrower, shall have the right to choose only an Interest Period which is the same as the Interest Rate Hedge Period, provided that the

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foregoing shall only apply to a Hedge Agreement that is required by Section 8.19(a) of this Agreement. 

2.06                           Prepayment. 

(a)                                  Prepayment of the Loans.  Upon not less than ten (10) days’ prior written notice to the Administrative Agent, the Borrower or Co-Borrower may prepay the Loans, in whole or in part, in minimum increments of One Million Dollars ($1,000,000) except as otherwise provided by Section 2.06(c), subject to the following:

(i)                                     any such prepayment shall be accompanied by the amount of interest theretofore accrued but unpaid in respect of the principal amount so prepaid, in accordance with Section 2.08;

(ii)                                  except as provided below, any such prepayment (except as a result of a Casualty Event or Taking or any prepayment made pursuant to Section 10.03(j) or Section 14.25)) shall be accompanied by a prepayment premium equal to the following percentage of the principal amount so prepaid:

and

(iii)                               such prepayment shall be accompanied by any amounts payable to a Lender pursuant to Section 5.05 as a result of such prepayment while a Eurodollar Loan is in effect, in accordance with Section 2.08. 

If the Loans are paid or prepaid in whole or in part for any reason (including acceleration of the Loans or because the Loans automatically become due and payable in accordance with Section 12.02(a)), other than by a Casualty Event or Taking or any prepayment made pursuant to Section 10.03(j) or Section 14.25) at any time, the Borrower shall pay to the Administrative Agent (on behalf of the Lenders) the amount(s) described in clauses (i), (ii),

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as applicable, and (iii), of the immediately preceding sentence.  Notwithstanding the foregoing, no prepayment premium pursuant to clause (ii) of Section 2.06(a) shall be payable in connection with any prepayment of principal made other than pursuant to Section 2.09(a), if such prepayment, when aggregated with all past prepayments made other than pursuant to Section 2.09(a), would not exceed $27,500,000 plus twenty-five percent (25%) of the amount theretofore advanced pursuant to Section 2.11. 

(b)                                 Treatment of Prepayments.  Except for any mandatory prepayment made pursuant to Section 2.07 and any prepayment made under Sections 2.06(c) and 2.09, and notwithstanding when such prepayment is made, each partial prepayment of the Loans shall be deemed to reduce the Allocated Loan Amounts pro-rata in accordance with the Allocated Loan Amount for each Project. 

(c)                                  Prepayment Upon Release of Projects.  Notwithstanding anything to the contrary contained in this Section 2.06, any prepayment made in connection with the release in accordance with the terms contained in Section 2.09 of any one or more of the Projects may be made at any time upon not less than ten (10) days’ prior written notice to the Administrative Agent, and without reference to the minimum One Million Dollars ($1,000,000) increment requirements of Section 2.06(a), but subject to payment of any applicable prepayment premium under clause (ii) of Section 2.06(a) and compliance with the provisions set forth in clause (iii) of Section 2.06(a) above, and the applicable provisions set forth in Section 2.09. 

(d)                                 Acknowledgments Regarding Prepayment Premium.  The prepayment premiums required by this Section 2.06 are acknowledged by the Borrower to be partial compensation to the Lenders for the costs of reinvesting the proceeds of the Loans and for the loss of the contracted rate of return on the Loans and shall be due in accordance with the terms of this Section 2.06 upon any prepayment of the Loans, including any prepayment occurring after an acceleration resulting from a violation of the provisions restricting Transfers set forth in this Agreement.  Furthermore, the Borrower acknowledges that the loss that may be sustained by the Lenders as a result of such a prepayment by the Borrower is not susceptible of precise calculation, and the prepayment premium represents the good faith effort of the Borrower and the Lenders to compensate the Lenders for such loss and the parties’ reasonable estimate of such loss, and is not a penalty.  By initialing this provision where indicated below, the Borrower waives any rights it may have under California Civil Code Section 2954.10, or any successor statute, and the Borrower confirms that the Lenders’ agreement to make the Loans at the interest rate and on the other terms set forth herein constitutes adequate and valuable consideration, given individual weight by the Borrower, for the prepayment provisions set forth in this Section 2.06. 

2.07                           Mandatory Prepayments.  If a Casualty Event or Taking shall occur with respect to any Project, the Borrower, upon the Borrower’s or the Administrative Agent’s receipt of the applicable Insurance Proceeds or Condemnation Awards, shall prepay the Loan, if

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required by the provisions of Article X, on the dates and in the amounts specified therein without premium (but subject to the provisions of Sections 2.08 and 5.05) or, at the instruction of the Borrower (provided no Event of Default is then continuing), shall be held in a Controlled Account by the Administrative Agent and applied to prepayment of the Loan on the next Payment Date (in which case the amount so held shall continue to bear interest at the rate(s) provided in this Agreement until so applied to prepay the Loan).  Nothing in this Section 2.07 shall be deemed to limit any obligation of the Borrower under the Deeds of Trust or any other Security Document, including any obligation to remit to the Cash Trap Account, Project-Level Account, or a Controlled Account pursuant to the Deeds of Trust or any of the other Security Documents the Insurance Proceeds, Condemnation Awards or other compensation received in respect of any Casualty Event or Taking.

2.08                           Interest and Other Charges on Prepayment.  If the Loans are prepaid, in whole or in part, pursuant to Section 2.06 or 2.07, each such prepayment shall be made together with (a) the accrued and unpaid interest on the principal amount prepaid, and (b) any amounts payable to a Lender pursuant to Section 5.05 as a result of such prepayment while an Adjusted LIBO Rate is in effect (provided the Borrower is notified of such amount or an estimate thereof), including, without limitation, any such amounts that may result from a prepayment other than on the last day of an Interest Period for a Eurodollar Loan the Interest Period of which has been automatically Continued pursuant to Section 4.05 during any period on which a prepayment date has been postponed in accordance with the provisions set forth below in this Section 2.08; provided, however, that any such prepayment shall be applied first, to the prepayment of any portions of the Outstanding Principal Amount that are Base Rate Loans and, second, to the prepayment of any portions of the Outstanding Principal Amount that are Eurodollar Loans applying such sums first to Eurodollar Loans of the shortest maturity so as to minimize Rollover Breakage Costs (as defined below); provided further, however, that if an Event of Default exists, the Administrative Agent may distribute such payment to the Lenders for application in such manner as it or the Required Lenders, subject to Section 4.02, may determine to be appropriate.  Each prepayment pursuant to Section 2.06 shall be made on the prepayment date specified in the notice of prepayment delivered pursuant to Section 4.05, unless such notice is revoked (or the date of prepayment is postponed) by a further written notice (which may be delivered by the Borrower or Co-Borrower by facsimile to the Administrative Agent).  Any notice revoking a notice of prepayment (or postponing a previously-specified prepayment date) shall be delivered not less than one (1) Business Day prior to the date of prepayment specified in the notice of prepayment; provided, however, in the event that the Borrower or Co-Borrower revokes or postpones such notice during the last three (3) Business Days of any Interest Period for a Eurodollar Loan, and provided that the Borrower or Co-Borrower has not elected to Convert such Eurodollar Loan into a Base Rate Loan pursuant to Section 2.05, the Borrower acknowledges that losses, costs and expenses for which the Borrower is responsible pursuant to Section 5.05(b) shall include, without limitation, losses, costs and expenses that may subsequently result from the early repayment, termination, cancellation or failure of the Borrower to borrow any Eurodollar Loan that was to have been automatically continued pursuant to Section 4.05 (“Rollover Breakage Costs”). 

2.09                           Release of Projects.  Except as set forth in this Section 2.09, or unless the Obligations have been paid in full, the Borrower shall have no right to obtain the release of any

40

Project from the Lien of the Loan Documents, and no repayment or prepayment of any portion of the Loans shall cause, give rise to a right to require, or otherwise result in, the release of the Lien of the Deed of Trust on any Project or any other collateral securing the Loans.  Any release upon payment of the Obligations in full shall be in accordance with the provisions of the Deeds of Trust governing releases.

(a)                                  Release of Projects.  At any time following the Closing Date, the Borrower or Co-Borrower on one or more occasions may obtain, and the Administrative Agent shall take such actions as are necessary to effectuate pursuant to this Section 2.09(a), the release of the entirety of any Project from the Lien of the Deeds of Trust (and related Loan Documents) thereon and the release of the Borrower’s and Co-Borrower’s obligations under the Loan Documents with respect to such Project (other than those which expressly survive repayment, including, but not limited to, those set forth in the Environmental Indemnity), upon satisfaction of each of the following conditions: 

(i)                                     The Borrower or Co-Borrower shall submit to the Administrative Agent (on behalf of the Lenders), by 3:00 P.M., New York City time, at least ten (10) days prior to the date of the proposed release, written notice of its election to obtain such release (which notice shall include a certification by an Authorized Officer of the Borrower or Co-Borrower that the proposed release complies with all of the conditions set forth in this Section 2.09(a)), together with the form or forms for a release of Lien and related Loan Documents (or, in the case of a Deed of Trust, a request for reconveyance) for such Project for execution by the Administrative Agent, which the Administrative Agent shall execute and deliver to the Borrower or Co-Borrower, as applicable, for recordation upon satisfaction of all conditions set forth in this Section 2.09(a).  Such release shall be in a form appropriate in each jurisdiction in which the applicable Project is located and reasonably satisfactory to the Administrative Agent and its counsel.  Any notice of a proposed release of a Project pursuant to this Section 2.09(a) may be revoked (or the date proposed for such release may be postponed) by a further written notice (which may be delivered by the Borrower or Co-Borrower by facsimile to the Administrative Agent).  Any notice revoking a proposed release (or postponing the date for a proposed release) shall be delivered not less than one (1) Business Day prior to the date of such release specified in the notice of release; provided, however, in the event that the Borrower or Co-Borrower revokes or postpones such notice during the last three (3) Business Days of the Interest Period for any Eurodollar Loan, and provided that the Borrower or Co-Borrower has not elected to Convert such Eurodollar Loan into a Base Rate Loan pursuant to Section 2.05, the Borrower acknowledges that the losses, costs and expenses for which the Borrower shall be responsible under Section 5.05(b) shall include Rollover Breakage Costs;

(ii)                                  The Borrower or Co-Borrower shall remit to the Administrative Agent an amount equal to one hundred ten percent (110%) of the Allocated Loan Amount for the applicable Project (for application to the principal balance of the Loans), plus any prepayment premium payable in connection with such prepayment pursuant to clause (ii) of Section 2.06(a).  The minimum One Million Dollar ($1,000,000) increment

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requirements of Section 2.06(a) shall not apply to a prepayment of the Loans made in accordance with this Section 2.09(a);

(iii)                               The Borrower or Co-Borrower shall pay to the Administrative Agent all sums, including, but not limited to, interest payments and principal payments, if any, that are then due and payable under the Notes, this Agreement, the Deeds of Trust and the other Loan Documents, and all costs due pursuant to Section 5.05 and clause (viii) of this Section 2.09(a) (it being agreed that accrued interest on the principal amount to be paid pursuant to clause (ii) of this Section 2.09(a) shall not be due and payable in connection with such release (unless such accrued interest is otherwise due and payable), but shall be due and payable on the next Payment Date);

(iv)                              [Reserved];

(v)                                 Immediately prior to such release, the Debt Service Coverage Ratio as calculated for all of the Projects then securing the Loans other than the Project proposed to be released (and assuming for purposes of the calculation of the DSCR Debt Service that the principal of the Loans shall have been reduced by the principal amount payable with respect to the Project to be released in accordance with clause (ii) of this Section 2.09(a)) shall be equal to or greater than 1.50-to-1.00;

(vi)                              After giving effect to such release and the payment of principal required to be made in connection therewith, the Outstanding Principal Amount of the Loans (unless the Loans shall be repaid in full) shall not be less than $55,000,000 plus fifty percent (50%) of the amount theretofore advanced pursuant to Section 2.11. 

(vii)                           No Default or Event of Default exists at the time of the Borrower’s or Co-Borrower’s request or on the date of the proposed release or after giving effect thereto (other than a Default or Event of Default that would be cured by effectuating such release); and

(viii)                        The Borrower or Co-Borrower shall pay all costs and expenses (including, but not limited to, reasonable legal fees and disbursements, escrow and trustee fees, costs for title insurance endorsements required by the Administrative Agent to confirm the continued priority of the Liens in favor of the Lenders on the Projects not being released and other out-of-pocket costs and expenses) incurred by the Administrative Agent in connection with such release.

It is understood and agreed that no such release shall impair or otherwise adversely affect the Liens, security interests and other rights of the Administrative Agent or the Lenders under the Loan Documents not being released (or as to the parties to the Loan Documents and Projects subject to the Loan Documents not being released). 

(b)                                 Any Project released from the Lien of the Deed of Trust and other Loan Documents pursuant to this Section 2.09 shall, effective upon such release, no longer be considered a “Project” for purposes of this Agreement or the other Loan Documents, except for

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purposes of those indemnification obligations and other covenants which, by their terms, expressly survive any such release. 

2.10                           Call Date.  Notwithstanding anything to the contrary contained in this Agreement, (i) the Outstanding Principal Amount under all Notes shall become automatically due and payable on the fifth (5th) anniversary of the expiration of the Stub Interest Period if on or prior to such date the Borrower or Co-Borrower has not paid to the Administrative Agent in accordance with the Fee Letter for the benefit of the Lenders an extension fee equal to five (5) basis points (0.05%) times the Outstanding Principal Amount under all Notes as of the fifth (5th) anniversary of the expiration of the Stub Interest Period or if on such date an Event of Default exists and (ii) the Outstanding Principal Amount under all Notes shall become automatically become due and payable on the sixth (6th) anniversary of the expiration of the Stub Interest Period if on such date the Borrower or Co-Borrower has not paid to the Administrative Agent in accordance with the Fee Letter for the benefit of the Lenders an extension fee equal to five (5) basis points (0.05%) times the Outstanding Principal Amount under all Notes as of the sixth (6th) anniversary of the expiration of the Stub Interest Period or if on such date an Event of Default exists. 

2.11                           Financing of Trillium Project. 

(a)                                  The Borrower has advised the Administrative Agent and the Lenders that the Borrower may have an interest in refinancing the Trillium Project.  If the Borrower decides to obtain financing to refinance the Trillium Project, the Borrower shall give the Administrative Agent written notice thereof (the “Trillium Commitment Request”), no later than November 30, 2006, together with the items identified below in this Section 2.11(a), identifying the amount of the financing sought by the Borrower in connection with such refinancing, not to exceed $125,000,000 (such amount requested by Borrower being the “Trillium Commitment Amount”), and the required funding deadline for such financing (which deadline shall be no earlier than the earliest date on which the Accepting Lenders and New Lenders are obligated to fund any additional advance they elect to make for the Trillium Commitment Amount, as specified below).  The Borrower shall also provide, with the Trillium Commitment Request, (i) true and correct copies of any leases affecting the Trillium Project and of the Borrower’s internally prepared lease summaries relating thereto, (ii) copies of the most recent budget and financial statements related to the Trillium Project, (iii) a Leasing Affidavit relating to the Trillium Project in the form of Leasing Affidavit delivered by the Borrower relating to the Projects pursuant to Section 7.22 hereto, and (iv) a certificate whereby the Borrower certifies, as of the date of its notice, that the representations and warranties made by the Borrower in this Agreement with respect to the Projects are true and correct as to the Trillium Project (or, if applicable, identifying with reasonable specificity any respects in which such representations and warranties are not so true and correct as to the Trillium Project). 

(b)                                 Reserved. 

(c)                                  Following its receipt of the Trillium Commitment Request, the Administrative Agent shall promptly notify the Lenders of such request, and shall request each Lender to promptly provide information as to whether it would be prepared to provide as an

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additional Commitment its pro rata share of the Trillium Commitment Amount (it being understood that, as between the Administrative Agent and the Lenders, any such increase in a Lender’s Commitment shall be on the same terms and pricing and shall be evidenced as applicable by a Note A, Note B or Note C as is consistent with the terms, pricing and form of Note that such Lender received in connection with its respective original Commitments). 

(d)                                 Upon its receipt of the Trillium Commitment Request, the Administrative Agent shall have the right to request and obtain (at the Borrower’s expense) an Environmental Report for the Trillium Project, a Property Condition Report for the Trillium Project, a seismic report and a survey for the Trillium Project, and the Borrower shall deliver to the Administrative Agent a title report for the Trillium Project together with all underlying title documents, and such other information and documentation with respect to the Trillium Project as is described in Sections 6.01(m), (n), (q), (r), (u) and (v) as if it were one of the “Projects”) (all such reports and materials are collectively referred to herein as the “Trillium Due Diligence Materials”), it being understood that the items described in Sections 6.01(q) and (r) shall be provided on a commercially reasonable efforts basis pursuant to the terms of such Sections.  The Administrative Agent shall make the reports, information and materials received by it pursuant to this Section 2.11(d) available for review by the Accepting Lenders and New Lenders. 

(e)                                  Within thirty (30) days following receipt of the Trillium Commitment Request, the Administrative Agent on behalf of the Lenders may, but shall not be obligated to, provide to the Borrower notice (the “Trillium Commitment Notice”) as to whether the Lenders or any one of them would be prepared to make an additional advance under this Agreement in the amount of the Trillium Commitment Amount and in accordance with the funding deadline set forth in the Borrower’s notice (each such Lender, an “Accepting Lender”) or any other lender meeting the qualifications of an Eligible Assignee (each a “New Lender”).  The date on which the Accepting Lenders and New Lenders shall be required to fund such additional advance shall be not earlier than three (3) Business Days after the fifteenth (15^th) day following the later of the date the Trillium Commitment Notice is delivered to the Borrower or the thirtieth (30^th) day following the receipt of the Trillium Commitment Request, and such Lenders’ obligation to fund such additional advance shall be subject to no conditions other than the execution and delivery by the Borrower of the documentation, and the issuance to the Administrative Agent upon the funding of such additional advance of the title policy and endorsements, referred to in Section 2.11(f), the receipt, review and approval by such Lenders in their discretion (prior to the fifteenth (15^th) day following the later of the date the Trillium Commitment Notice is delivered to the Borrower or the thirtieth (30^th) day following the receipt of the Trillium Commitment Request) of the Trillium Due Diligence Materials, and that no Default or Event of Default shall exist upon such funding or shall result therefrom.  The obligations of the Accepting Lenders and New Lenders to fund such additional advance in accordance with the terms of the Trillium Commitment Notice shall lapse and be of no further force or effect on 5:00 P.M., California time, on the date which is the ninetieth (90^th) day after the required funding deadline indicated in the Borrower’s Trillium Commitment Request.  Notwithstanding anything to the contrary contained herein or in the other Loan Documents, as an additional condition precedent with respect to any additional advance to be funded pursuant to this Section 2.11, the Borrower shall obtain interest rate protection until the Hedging Termination Date pursuant to Section 8.19 with respect to any additional advances made pursuant to this Section 2.11.

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(f)                                    If, during the thirty (30) day period described in Section 2.11(e) above, the Administrative Agent provides to the Borrower a Trillium Commitment Notice indicating the Accepting Lenders’ or New Lenders’ conditional commitment to provide financing for the Trillium Project as described in Section 2.11(a) in the full amount of the Trillium Commitment Amount which is structured as an additional advance under this Agreement in an amount not to exceed sixty percent (60%) of the appraised value of the Trillium Project (as determined by the Appraisal obtained by the Administrative Agent for the Trillium Project); is at the same rate (on a weighted average yield basis) and proportionate fees (including those provided for in the Fee Letter) and has the same maturity date and other payment terms as the Loans made pursuant hereto; is secured by a Deed of Trust encumbering such Trillium Project insured by a title insurance policy consistent with the requirements set forth in Section 6.01(m) and by all other Deeds of Trust executed by the Borrower and other Loan Documents to which the Borrower is a party; and is subject to no conditions other than those provided for in Section 2.11(e), then the Borrower shall be obligated to accept such financing, and shall, within three (3) Business Days after its receipt of the Trillium Commitment Notice, deliver to the Administrative Agent the Borrower’s unqualified written acceptance of such conditional commitment, and, at the time of the funding of the Trillium Commitment Amount, shall pay a commitment fee in the amount set forth in the Fee Letter (the “Trillium Commitment Fee”) (which commitment fee shall be non-refundable in all events).  The Borrower shall, in connection with the consummation of such additional advance, (i) execute and deliver a Deed of Trust and such other Loan Documents and instruments (including, without limitation, recordable amendments to the Deeds of Trust and the other Loan Documents, and such documents as may be required under Section 2.11(g) below) as shall be reasonably acceptable to the Administrative Agent and the Borrower and shall perform such other acts with respect to the Trillium Project as may be consistent with the documentation and actions delivered and performed in connection with the Closing, or as may be deemed by the Administrative Agent to be necessary or reasonably desirable to reflect such understandings and to confirm the Allocated Loan Amount and Appraised Value for the Trillium Project, (ii) obtain for the benefit of the Administrative Agent and the Lenders such title insurance endorsements as may be reasonably required to confirm that the Deeds of Trust encumbering all Projects have been amended to secure such additional advance with no loss of priority, and (iii) the Borrower shall deliver opinion letters of Borrower’s counsel with respect to all Loan Documents delivered in connection with the additional advance, in form and substance satisfactory to the Administrative Agent and in substantially the same form as the opinion letters delivered in connection with the initial advance hereunder.  Upon the consummation of such additional advance, such additional advance shall be one of the “Loans” hereunder and secured by the collateral for the Loans.  If, during the thirty (30) day period described above, the Administrative Agent does not provide to the Borrower a Trillium Commitment Notice or provides a notice which proposes terms and conditions other than as described above in Section 2.11(e) and this Section 2.11(f), or if the Lenders shall have timely provided a Trillium Commitment Notice in compliance with this Section 2.11, but shall thereafter fail to fund the full amount of the Trillium Commitment Amount within the time limits for funding specified in Section 2.11(e) for any reason other than the failure of a condition precedent to such funding set forth in Section 2.11(e) (other than a condition precedent that involves the discretionary review by the Administrative Agent or any Lender of any due diligence items related to the Trillium Project), a default by the Borrower or a requested postponement by the Borrower, then in each such case, the Lenders

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shall be deemed to have elected not to provide financing for the Trillium Project pursuant to this Section 2.11, and the rights of the Lenders to provide the financing for the Trillium Project under this Section 2.11 shall automatically thereupon expire and, if such failure to fund results from a breach or default by the Accepting Lenders and/or New Lenders, then subject to all other applicable limitations set forth herein (including, without limitation, those set forth in Section 14.11), the Borrower shall have such rights and remedies against the Accepting Lenders and/or New Lenders as shall be available at law or in equity for breaching their respective obligations (such obligations are several and not joint and several in nature) hereunder and under the conditional commitment.

(g)                                 If, in connection with any proposal to finance the Trillium Project in an amount equal to the Trillium Commitment Amount, any Lender (each such Lender, a “Non-Accepting Lender”) has not provided sufficient increases in its respective Commitments to equal the Trillium Commitment Amount, then the Administrative Agent shall notify all Accepting Lenders of the unfunded balance of the Trillium Commitment Amount and of the terms and pricing applicable thereto and each Accepting Lender shall be entitled to increase its respective Commitment (which, as between the Administrative Agent and the Accepting Lenders, shall be on the same terms and pricing arrangements as would have been applicable to the applicable Non-Accepting Lender had such Non-Accepting Lender elected to increase its respective Commitments on a pro rata basis as provided in Section 2.11(c)).  If, within three (3) Business Days after delivery of such notice there remains unsubscribed-for a portion of the Trillium Commitment Amount, the Administrative Agent may designate one or more New Lenders to fund such balance of the Trillium Commitment Amount (which, as between the Administrative Agent and the New Lenders, shall be on terms and pricing arrangements that represent, on a weighted average yield basis, the same terms and pricing as would have been available to the Non-Accepting Lenders, in the aggregate).  The foregoing shall not act to extend the thirty (30) day period described in Sections 2.11(e).  The Administrative Agent may allocate the Trillium Commitment Amount to the Accepting Lenders and any New Lenders in its sole discretion, up to the amount of the increase each Accepting Lender or New Lender has agreed to accept.  The Commitments of the Accepting Lenders shall, upon the funding of their respective portions of the Trillium Commitment Amount, be increased by such portions without the consent of any other Lender.  Upon funding of the Trillium Commitment Amount, the Borrower shall (i) issue substitute Notes (in exchange for the original Notes so substituted) or additional Notes to the Accepting Lenders and issue Notes to any New Lenders evidencing their shares of the Loans and such Trillium Commitment Amount, (ii) together with the Accepting Lenders and the Administrative Agent, execute such other documents evidencing such adjustments in the Commitments and the Loans as shall be reasonably acceptable to the Borrower, the Accepting Lenders, and the Administrative Agent, (iii) together with any New Lenders and the Administrative Agent, execute such other documents evidencing the addition of such New Lenders as Lenders hereunder and the adjustment of the Commitments and the Loans as shall be reasonably acceptable to the Borrower, the Administrative Agent and such New Lenders, including a joinder agreement (a “Joinder”), substantially in the form of Exhibit P attached hereto, and other documentation with respect to each New Lender which is in compliance with the provisions of clauses (ii), (iii) and (v) of Section 14.07(b) and (iv) pay all of the Administrative Agent’s reasonable out-of-pocket expenses in connection with the foregoing

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incurred prior to the funding date.  Upon such funding, the Lenders acknowledge that their shares of outstanding Loans shall be adjusted to be in proportion to the revised Commitments of all Lenders after giving effect to the increase in Commitments resulting from the Accepting Lenders’ and each New Lender’s shares of the Trillium Commitment Amount.

(h)                                 In no event shall the additional Commitments to be added under the terms of this Section 2.11 with respect to the Trillium Project exceed the One Hundred Twenty-Five Million Dollars ($125,000,000) without the consent of all Lenders.

(i)                                     Notwithstanding anything to the contrary contained in this Agreement or the other Loan Documents, each Lender hereby authorizes the Administrative Agent (on behalf of the Lenders) to enter into amendments and modifications of this Agreement and the other Loan Documents to the extent necessary to reflect the adjustment of the Commitments and the Loans, the addition of new Lenders and the other matters contemplated by this Section 2.11.

(j)                                     The Administrative Agent’s and Lenders’ right to provide financing under this Section 2.11 shall automatically expire upon the earlier to occur of (i) the date the Lenders shall have elected not to (or are deemed to have elected not to) provide the financing for the Trillium Project pursuant to Sections 2.11(f), (ii) the date the Outstanding Principal Amount (together with any accrued and unpaid interest thereon) has been repaid or (iii) the Maturity Date.

ARTICLE 3

PAYMENTS OF PRINCIPAL AND INTEREST

3.01                           Repayment of Loans.  The Borrower hereby promises to pay to the Administrative Agent for the account of each Lender the principal amount of such Lender’s outstanding Loans to the Borrower, together with accrued and unpaid interest, any applicable fees and all other amounts due under the Loan Documents with respect to such Loans, which amounts, to the extent not previously paid, shall, without notice, demand or other action, be due and payable on the Maturity Date.

3.02                           Interest.

(a)                                  The Borrower hereby promises to pay to the Administrative Agent for the account of each Lender interest on the unpaid principal amount of each Loan (which may be Base Rate Loans and/or Eurodollar Loans) made by such Lender for the period from and including the date of such Loan to but excluding the date such Loan shall be paid in full if paid in the time and manner provided for in Section 4.01, at the following rates per annum:

(i)                                     during such periods as such Loan is a Base Rate Loan, the Base Rate plus the Applicable Margin; and

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(ii)                                  during such periods as such Loan is a Eurodollar Loan, for each Interest Period relating thereto, the Adjusted LIBO Rate for such Loan for such Interest Period plus the Applicable Margin.

(b)                                 Accrued interest on each Loan shall be payable (i) monthly in arrears on each Payment Date for all interest accrued through but not including the relevant Payment Date and (ii) in the case of any Loan, upon the payment or prepayment thereof (except as expressly provided in Section 2.09(a)(iii)) or the Conversion of such Loan to a Loan of another Type (but only on the principal amount so paid, prepaid or Converted), except that interest payable hereunder at the Post-Default Rate shall be payable from time to time on demand.

(c)                                  Notwithstanding anything to the contrary contained herein, after the Maturity Date and during any period when an Event of Default exists, the Borrower shall pay to the Administrative Agent for the account of each Lender interest at the applicable Post-Default Rate on the outstanding principal amount of any Loan made by such Lender, any interest payments thereon not paid when due and on any other amount due and payable by the Borrower hereunder, under the Notes and any other Loan Documents.

(d)                                 Promptly after the determination of any interest rate provided for herein or any change therein, the Administrative Agent shall give notice thereof to the Lenders to which such interest is payable and to the Borrower, but the failure of the Administrative Agent to provide such notice shall not affect the Borrower’s obligation for the payment of interest on the Loans.

(e)                                  In addition to any sums due under this Section 3.02, the Borrower shall pay to the Administrative Agent for the account of the Lenders a late payment premium in the amount of four percent (4%) of (i) any payments of principal under the Loans not made when due, and (ii) any payments of interest or other sums under the Loans not made when due, provided, in each case, that such payments are not made within the earlier of (i) two (2) Business Days after the Borrower receives written notice from the Administrative Agent of Borrower’s failure to make such payment when due and (ii) five (5) days after the date the same became due, which late payment premium shall be due with any such late payment or upon demand by the Administrative Agent.  Such late payment charge represents the reasonable estimate of the Borrower, the Administrative Agent and the Lenders of a fair average compensation for the loss that may be sustained by the Lenders due to the failure of the Borrower to make timely payments.  Such late charge shall be paid without prejudice to the right of the Administrative Agent and the Lenders to collect any other amounts provided herein or in the other Loan Documents to be paid or to exercise any other rights or remedies under the Loan Documents. 

(f)                                    Reserved. 

3.03                           Project-Level Account.  The Borrower shall, and shall cause the Property Manager to (a) deposit all Rents from the Projects, and all amounts received by the Borrower or the Property Manager constituting Rent or other revenue or sums of any kind from the Projects, into the applicable Project-Level Account for such Project in accordance with the Project-Level Account Security Agreement and (b) upon an Event of Default, and upon written request of the

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Administrative Agent, deliver irrevocable written instructions to all tenants under Leases to deliver all Rents payable thereunder directly to the applicable Project-Level Account for such Project.  The Borrower shall not maintain any checking, money market or other deposit accounts for the deposit and holding of any revenues or sums derived from the ownership or operation of the Projects other than the Project-Level Account (except for such replacement or additional deposit accounts in which the Administrative Agent shall have been granted, pursuant to a written instrument in form and substance satisfactory to the Administrative Agent, a first priority security interest on the terms provided herein, in which case the “Project-Level Account” referred to herein shall include such replacement or additional account), other than (i) accounts into which funds initially deposited in a Project-Level Account have been, or may be, transferred in compliance with the Project-Level Account Security Agreement and (ii) any Cash Trap Account or Controlled Account required hereunder.

ARTICLE 4

PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.

4.01                           Payments.

(a)                                  Payments by the Borrower.  Except to the extent otherwise provided herein, all payments of principal, interest and other amounts to be made by the Borrower under this Agreement, the Notes and any other Loan Document, shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to the Administrative Agent at the Administrative Agent’s Account, not later than 3:00 p.m., New York City time, on the date on which such payment shall become due (each such payment made after such time on such due date to be deemed to have been made on the next succeeding Business Day).

(b)                                 Application of Payments.  The Borrower or Co-Borrower may, at the time of making each payment under this Agreement, any Note or any other Loan Document for the account of any Lender (if such payment is not comprised solely of interest), specify to the Administrative Agent (which shall so notify the intended recipient(s) thereof) the Loans or other amounts to which such payment is to be applied (and in the event that the Borrower or Co-Borrower fails to so specify, or if an Event of Default exists, the Administrative Agent may apply such payment to amounts then due to the Lenders, subject to Section 4.02, pro rata in accordance with their Proportionate Share and, thereafter, may apply any remaining portion of such payment in such manner as it or the Required Lenders, subject to Section 4.02, may determine to be appropriate).  To the extent that the Borrower or Co-Borrower has the right pursuant to this Section 4.01(b) to designate the obligations to which a payment made by the Borrower or Co-Borrower under the Loan Documents is to be applied, the Borrower or Co-Borrower shall exercise such rights in such a manner as shall result in the application of such payment to the designated obligation in a manner that will result in each Lender receiving its pro rata share of the amount so paid by the Borrower or Co-Borrower on account of the designated obligation in proportion to the respective amounts then due and payable on account of the designated obligation to all Lenders entitled to payment of the designated obligation.  Notwithstanding the foregoing and to avoid any potential ambiguity between this provision and Section 2.06, nothing in the foregoing sentence is intended to modify or supersede Section 2.06.

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(c)                                  Payments Received by the Administrative Agent.  Each payment received by the Administrative Agent under this Agreement, any Note or any other Loan Document for account of any Lender shall be paid by the Administrative Agent promptly to such Lender (and in any event, the Administrative Agent shall use commercially reasonable efforts to pay such sums to such Lender on the same Business Day such sums are received by the Administrative Agent provided the Administrative Agent has actually received such sums prior to 3:00 p.m. on such Business Day), in immediately available funds, for account of such Lender’s Applicable Lending Office for the Loan or other obligation in respect of which such payment is made.  In the event that the Administrative Agent fails to make such payment to such Lender within two (2) Business Days of receipt, subject to any delays resulting from force majeure, then such Lender shall be entitled to interest from the Administrative Agent at the Federal Funds Rate from the date that such payment should have been paid by the Administrative Agent to such Lender until the Administrative Agent makes such payment.

(d)                                 Extension to Next Business Day.  If the due date of any payment under this Agreement or any Note would otherwise fall on a day that is not a Business Day, such date shall be extended to the next succeeding Business Day, and interest shall be payable for any principal so extended for the period of such extension.

4.02                           Pro Rata Treatment.  Except to the extent otherwise provided herein:  (a) each borrowing from the Lenders under Section 2.01 shall be made from the Lenders on a pro rata basis according to the amounts of their respective Commitments; (b) except as otherwise provided in Section 5.04, Eurodollar Loans having the same Interest Period shall be allocated pro rata among the Lenders according to the amounts of their respective Commitments (in the case of the making of Loans) or their respective Loans (in the case of Conversions and Continuations of Loans); (c) each payment or prepayment of principal of Loans by the Borrower or Co-Borrower shall be made for account of the Lenders on a pro rata basis in accordance with the respective unpaid principal amounts of the Loans held by them; and (d) each payment of interest on Loans by the Borrower or Co-Borrower shall be made for the account of the Lenders on a pro rata basis in accordance with the amounts of interest on such Loans then due and payable to the respective Lenders.  Notwithstanding anything to the contrary contained in this Agreement or in any of the other Loan Documents, (a) all payments received by the Administrative Agent on account of interest, principal (including, without limitation, prepayments), fees or other amounts which are required under this Agreement to be paid to the Lenders pro rata, or in accordance with their respective Proportionate Shares, shall be paid to the Lenders pro rata in proportion to the respective amounts of interest, principal, fees or other amounts, as applicable, then due and payable to all Lenders pursuant to the Loan Documents, and (b) during the existence of an Event of Default, all payments received by the Administrative Agent with respect to the Loan shall be applied as provided in that certain Co-Lender Agreement to be entered into by and among the Lenders and the Administrative Agent, as the same may be Modified from time to time.

4.03                           Computations.  Interest on all Loans shall be computed on the basis of a year of 360 days and actual days elapsed (including the first day but excluding the last day) occurring in the period for which payable.

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4.04                           Minimum Amounts. Except for (a) mandatory prepayments made pursuant to Section 2.07, 8.19(g), 10.03(j) or 14.25 of this Agreement or Section 7.08 of the Deed of Trust, (b) Conversions or prepayments made pursuant to Section 5.04, and (c) prepayments made pursuant to Section 2.06 or Section 2.09 (which shall be governed by such Sections) each borrowing, Conversion, Continuation and partial prepayment of principal other than made pursuant to Section 2.09 (collectively, “Loan Transactions”) of Loans shall be in an aggregate amount at least equal to $1,000,000 (Loan Transactions of or into Loans of different Types or Interest Periods at the same time hereunder shall be deemed separate Loan Transactions for purposes of the foregoing, one for each Type or Interest Period); provided that if any Loans or borrowings would otherwise be in a lesser principal amount for any period, such Loans shall be Base Rate Loans during such period. Notwithstanding the foregoing, the minimum amount of $1,000,000 shall not apply to Conversions of lesser amounts into a tranche of Loans that has (or will have upon such Conversion) an aggregate principal amount exceeding such minimum amount and one Interest Period.

4.05                           Certain Notices. Notices by the Borrower to the Administrative Agent regarding Loan Transactions and the selection of Types of Loans and/or of the duration of Interest Periods shall be effective only if received by the Administrative Agent not later than 3:00 PM, New York City time, on the date which is the number of calendar days or Business Days, as applicable, prior to the date of the proposed Loan Transaction specified immediately below:

Notices of the selection of Types of Loans and/or of the duration of Interest Periods shall be irrevocable. Each notice of a Loan Transaction shall specify the amount (subject to Section 4.04), Type, and Interest Period of such proposed Loan Transaction, and the date (which shall be a Business Day) of such proposed Loan Transaction. Notices for Conversions and Continuations shall be in the form of Exhibit L attached hereto. Each such notice specifying the duration of an Interest Period shall specify the portion of the Loans to which such Interest Period is to relate. The Administrative Agent shall promptly notify the Lenders of the contents of each such notice. If the Borrower and Co-Borrower fail to select (i) the Type of Loan or (ii) the duration of any Interest Period for any Eurodollar Loan within the time period (i.e., three (3) Business Days prior to the first day of the next applicable Interest Period) and otherwise as provided in this Section 4.05, such Loan (if outstanding as a Eurodollar Loan) will automatically be continued as

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a Eurodollar Loan as of the last day of the then current Interest Period for such Loan, with such Eurodollar Loan having an Interest Period of one month, and the Borrower and Co-Borrower shall be deemed to have provided to the Administrative Agent three (3) Business Days prior to the first day of such Interest Period a duly completed and unqualified notice requesting such Continuation in the form of Exhibit L.

4.06                           Non-Receipt of Funds by the Administrative Agent. Unless the Administrative Agent shall have been notified by a Lender or the Borrower or Co-Borrower (each, for purposes of this Section 4.06, a “Payor”) prior to the date on which such Payor is to make payment to the Administrative Agent of (in the case of a Lender) the proceeds of a Loan to be made by such Payor hereunder or (in the case of the Borrower or Co-Borrower) a payment to the Administrative Agent for the account of one or more of the Lenders hereunder (such payment being herein called a “Required Payment”), which notice shall be effective upon receipt, that such Payor does not intend to make such Required Payment to the Administrative Agent, the Administrative Agent may assume that such Required Payment has been made and may, in reliance upon such assumption (but shall not be required to), make the amount thereof available to the intended recipient(s) on such date; and, if such Payor has not in fact made the Required Payment to the Administrative Agent, the recipient(s) of such payment from the Administrative Agent shall, on demand, repay to the Administrative Agent the amount so made available together with interest thereon in respect of each day during the period commencing on the date (the “Advance Date”) such amount was so made available by the Administrative Agent until the date the Administrative Agent recovers such amount at a rate per annum equal to (a) the Federal Funds Rate for such day in the case of payments returned to the Administrative Agent by any of the Lenders or (b) the applicable interest rate due hereunder with respect to payments returned by the Borrower or Co-Borrower to the Administrative Agent and, if such recipient(s) shall fail to promptly make such payment, the Administrative Agent shall be entitled to recover such amount, on demand, from such Payor, together with interest at the same rates as aforesaid; provided that if neither the recipient(s) nor such Payor shall return the Required Payment to the Administrative Agent within three (3) Business Days (five (5) days in the case the Borrower or Co-Borrower is the Payor) of the Advance Date, then, retroactively to the Advance Date, such Payor and the recipient(s) shall each be obligated to pay interest on the Required Payment as follows:

(i)                                     if the Required Payment shall represent a payment to be made by the Borrower to the Administrative Agent for the benefit of the Lenders, the Borrower and the recipient(s) shall each be obligated to pay interest retroactively to the Advance Date in respect of the Required Payment at the Post-Default Rate (without duplication of the obligation of the Borrower under Section 3.02 to pay interest on the Required Payment at the Post-Default Rate), it being understood that the return by the recipient(s) of the Required Payment to the Administrative Agent shall not limit such obligation of the Borrower under Section 3.02 to pay interest at the Post-Default Rate in respect of the Required Payment, and it being further understood that to the extent the Administrative Agent actually receives from the Borrower or Co-Borrower any such interest at the Post-Default Rate on such Required Payment, such amount so received shall be credited against the amount of interest (if any) payable by the applicable recipient(s), and

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(ii)                                  if the Required Payment shall represent proceeds of a Loan to be made by the Lenders to the Borrower, such Payor and the Borrower shall each be obligated retroactively to the Advance Date to pay interest in respect of the Required Payment pursuant to whichever of the rates specified in Section 3.02 is applicable to the Type of such Loan, it being understood that the return by the Borrower of the Required Payment to the Administrative Agent shall not limit any claim that the Borrower or Co-Borrower may have against such Payor in respect of such Required Payment and shall not relieve such Payor of any obligation it may have hereunder or under any other Loan Documents to the Borrower or Co-Borrower and no advance by the Administrative Agent to the Borrower or Co-Borrower under this Section 4.06 shall release any Lender of its obligation to fund such Loan except as set forth in the following sentence. If any such Lender shall thereafter advance any such Required Payment to the Administrative Agent, together with interest on such Required Payment as provided herein, such Required Payment shall be deemed such Lender’s applicable Loan to the Borrower or Co-Borrower, as applicable, and shall be advanced by the Administrative Agent to the Borrower or Co-Borrower, as applicable, to the extent the Borrower or Co-Borrower, as applicable, has remitted the Required Payment and such interest to the Administrative Agent.

4.07                           Sharing of Payments, Etc.

(a)                                  Sharing. If any Lender shall obtain payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any other Loan Document through the exercise (subject to the provisions of Section 14.10) of any right of set-off, banker’s lien or counterclaim or similar right or otherwise (other than from the Administrative Agent as provided herein), and, as a result of such payment, such Lender shall have received a greater percentage of the principal of or interest on the Loans or such other amounts then due hereunder or thereunder by the Borrower to such Lender than the percentage received by any other Lender, it shall promptly purchase from such other Lenders participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans or such other amounts, respectively, owing to such other Lenders (or in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with the unpaid principal of and/or interest on the Loans or such other amounts, respectively, owing to each of the Lenders. To such end all the Lenders shall make appropriate adjustments among themselves (by the resale of participations sold or otherwise) if such payment is rescinded or must otherwise be restored. Each Lender agrees that it shall turn over to the Administrative Agent (for distribution by the Administrative Agent to the other Lenders in accordance with the terms of this Agreement) any payment (whether voluntary or involuntary, through the exercise of any right of setoff or otherwise) on account of the Loans held by it in excess of its ratable portion of payments on account of the Loans obtained by all the Lenders.

(b)                                 Consent by the Borrower. The Borrower agrees that any Lender so purchasing such a participation (or direct interest) may exercise (subject, as among the Lenders, to Section 14.10) all rights of set-off, banker’s lien, counterclaim or similar rights with respect to

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such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.

(c)                                  Rights of Lenders; Bankruptcy. Nothing contained herein shall require any Lender to exercise any right of set-off, banker’s lien or counterclaim or similar right or otherwise or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other indebtedness or obligation of the Borrower. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a set-off to which this Section 4.07 applies, then such Lender shall, to the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 4.07 to share in the benefits of any recovery on such secured claim.

ARTICLE 5

YIELD PROTECTION, ETC.

5.01                           Additional Costs.

(a)                                  Costs of Making or Maintaining Eurodollar Loans. The Borrower shall pay directly to each Lender from time to time such amounts as such Lender may determine to be necessary to compensate such Lender for any costs that such Lender determines are attributable to its making or maintaining of any Eurodollar Loans, or its obligation to make any Eurodollar Loans, hereunder, or, subject to the following provisions of this Article V, any reduction in any amount receivable by such Lender hereunder in respect of any of such Eurodollar Loans or such obligation (such increases in costs and reductions in amounts receivable being herein called “Additional Costs”), provided such Additional Costs result from any Regulatory Change that:

(i)                                     shall subject any Lender (or its Applicable Lending Office for any of such Eurodollar Loans) to any tax, duty or other charge in respect of such Eurodollar Loans or its Note or changes the basis of taxation of any amounts payable to such Lender under this Agreement or its Note in respect of any of such Eurodollar Loans (other than Excluded Taxes); or

(ii)                                  imposes or Modifies any reserve, special deposit or similar requirements (other than the Reserve Requirement utilized in the determination of the Adjusted LIBO Rate for such Eurodollar Loan) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, any Lender (including any of such Eurodollar Loans or any deposits referred to in the definition of “LIBO Rate” in Section 1.01), or any commitment of such Lender (including the Commitment of such Lender hereunder); or

(iii)                               imposes any other condition affecting this Agreement or the Note of any Lender (or any of such extensions of credit or liabilities) or its Commitment.

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If any Lender requests compensation from the Borrower or Co-Borrower under this Section 5.01(a) or Section 5.01(b), the Borrower or Co-Borrower may, by notice to such Lender (with a copy to the Administrative Agent), suspend the obligation of such Lender thereafter to make or Continue Eurodollar Loans, or to Convert Base Rate Loans into Eurodollar Loans, until the Regulatory Change giving rise to such request ceases to be in effect or until the Borrower or Co-Borrower notifies such Lender that the Borrower or Co-Borrower is lifting such suspension (in which case the provisions of Section 5.04 shall be applicable), provided that such suspension shall not affect the right of such Lender to receive the compensation so requested for so long as any Eurodollar Loan remains in effect.

(b)                                 Costs Attributable to Regulatory Change or Risk-Based Capital Guidelines. Without limiting the effect of the provisions of this Section 5.01 (but without duplication), the Borrower shall pay to each Lender from time to time on request such amounts as such Lender may determine to be necessary to compensate such Lender (or, without duplication, the bank holding company or other legal entity of which such Lender is a subsidiary) for any costs that it determines are attributable to the maintenance of its Eurodollar Loans hereunder by such Lender (or any Applicable Lending Office or such bank holding company or other legal entity), pursuant to any law or regulation or any interpretation, directive or request (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) of any Governmental Authority (i) following any Regulatory Change with respect to such law, regulation, interpretation, directive or request resulting in such costs or (ii) implementing any risk-based capital guideline or other requirement of capital (whether or not having the force of law and whether or not the failure to comply therewith would be unlawful) hereafter issued by any Governmental Authority implementing at the national level the Basel Accord, in respect of its Commitment or its Eurodollar Loans (such compensation to include an amount equal to any reduction of the rate of return on assets or equity of such Lender (or any Applicable Lending Office or such bank holding company or other legal entity) to a level below that which such Lender (or any Applicable Lending Office or such bank holding company or other legal entity) could have achieved but for such law, regulation, interpretation, directive or request).

(c)                                  Notification and Certification. Each Lender shall notify the Borrower of any event occurring after the date hereof entitling such Lender to compensation under subsections (a) or (b) of this Section 5.01 (setting forth in reasonable detail the basis of such determination) as promptly as practicable, but in any event within sixty (60) days, after such Lender obtains actual knowledge thereof; provided that (i) if any Lender fails to give such notice within sixty (60) days after it obtains actual knowledge of such an event, such Lender shall, with respect to compensation payable pursuant to this Section 5.01 in respect of any costs resulting from such event, be entitled to payment under this Section 5.01 only for costs incurred from and after the date sixty (60) days prior to the date that such Lender does give such notice and (ii) each Lender shall designate a different Applicable Lending Office (if applicable) for the Eurodollar Loans of such Lender affected by such event if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the sole opinion of such Lender, be disadvantageous to such Lender. Each Lender shall furnish to the Borrower and Co-Borrower a certificate setting forth the basis and amount of each request by such Lender for compensation under subsection (a) or (b) of this Section 5.01. Determinations and allocations by any Lender

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for purposes of this Section 5.01 of the effect of any Regulatory Change pursuant to subsection (a) or (b) of this Section 5.01, or of the effect of capital maintained pursuant to subsection (b) of this Section 5.01, on its costs or rate of return of maintaining Eurodollar Loans or its obligation to make Eurodollar Loans, or on amounts receivable by it in respect of Eurodollar Loans, and of the amounts required to compensate such Lender under this Section 5.01, as set forth in the certificate of the Lender, shall be prima facie evidence of the accuracy of the determinations and calculations contained or asserted therein. Notwithstanding anything to the contrary contained herein, it shall be a condition to the Borrower’s and Co-Borrower’s obligation to pay compensation under subsections (a) or (b) of this Section 5.01 that such compensation requirements are also being imposed on substantially all other similar classes or categories of commercial loans or commitments of such Lender similarly affected by the Regulatory Change and the other guidelines and requirements referred to in this Section 5.01.

5.02                           Limitation on Eurodollar Loans. Anything herein to the contrary notwithstanding, if, on or prior to the determination of any LIBO Rate for any Interest Period for any Eurodollar Loan:

(a)                                  after making reasonable efforts, the Administrative Agent determines, which determination shall be conclusive absent manifest error, that quotations of interest rates for the relevant deposits referred to in the definition of “LIBO Rate” in Section 1.01 are not being provided in the relevant amounts or for the relevant maturities for purposes of determining rates of interest for Eurodollar Loans as provided herein; or

(b)                                 the Administrative Agent determines, which determination shall be conclusive absent manifest error, that, as a result of circumstances arising after the Closing Date, the relevant rates of interest referred to in the definition of “LIBO Rate” in Section 1.01 upon the basis of which the rate of interest for Eurodollar Loans for such Interest Period is to be determined are not likely adequately to cover the cost to such Lenders of making or maintaining Eurodollar Loans for such Interest Period;

then the Administrative Agent shall give the Borrower and each Lender prompt notice thereof and, so long as such condition remains in effect, the Lenders shall be under no obligation to make additional Eurodollar Loans, to Continue Eurodollar Loans or to Convert Base Rate Loans into Eurodollar Loans, and the Borrower shall, on the last day(s) of the then current Interest Period(s) for the outstanding Eurodollar Loans, either prepay such Eurodollar Loans in accordance with Sections 2.06 and 2.07 or, in accordance with Section 2.05, Convert such Eurodollar Loans into Base Rate Loans or other Eurodollar Loans in amounts and maturities which are still being provided. Notwithstanding the foregoing, (i) if the applicable conditions under clauses (a) or (b) of this Section 5.02 affect only a portion of the Eurodollar Loans, the balance of the Eurodollar Loans may continue as Eurodollar Loans and (ii) if the applicable conditions under clauses (a) and (b) of this Section 5.02 only affect certain Interest Periods, the Borrower or Co-Borrower, subject to the terms and conditions of this Agreement, may elect to have Eurodollar Loans with such other Interest Periods.

5.03                           Illegality. Notwithstanding any other provision of this Agreement, if it becomes unlawful for any Lender or its Applicable Lending Office to honor its obligation to

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make or maintain Eurodollar Loans hereunder (and, in the sole opinion of such Lender, the designation of a different Applicable Lending Office would either not avoid such unlawfulness or would be disadvantageous to such Lender), then such Lender shall promptly notify the Borrower thereof (with a copy to the Administrative Agent) and such Lender’s obligation to make or Continue, or to Convert portions of its Loan of any other Type into, Eurodollar Loans shall be suspended until such time as such Lender may again make and maintain Eurodollar Loans (in which case the provisions of Section 5.04 shall be applicable).

5.04                           Treatment of Affected Loans. If the obligation of any Lender to make Eurodollar Loans or to Continue, or to Convert Base Rate Loans into, Eurodollar Loans shall be suspended pursuant to Sections 5.01 or 5.03, then such Lender’s Eurodollar Loans shall be automatically Converted into Base Rate Loans on the last day(s) of the then current Interest Period(s) for Eurodollar Loans (or, in the case of a Conversion resulting from a circumstance described in Section 5.03, on such earlier date as such Lender may specify to the Borrower with a copy to the Administrative Agent) and, unless and until either (a) such Lender gives notice as provided below that the circumstances specified in Sections 5.01 or 5.03 that gave rise to such Conversion no longer exist or (b) the Borrower or Co-Borrower, in the case of Section 5.01, ends any suspension by the Borrower or Co-Borrower:

(a)                                  to the extent that such Lender’s Eurodollar Loans have been so Converted, all payments and prepayments of principal that would otherwise be applied to such Lender’s Eurodollar Loans shall be applied instead to its Base Rate Loans; and

(b)                                 all portions of its Loan that would otherwise be made or Continued by such Lender as Eurodollar Loans shall be made or Continued instead as Base Rate Loans, and all Base Rate Loans of such Lender that would otherwise be Converted into Eurodollar Loans shall remain as Base Rate Loans.

If such Lender gives notice to the Borrower with a copy to the Administrative Agent that the circumstances specified in Section 5.01 or 5.03 that gave rise to the Conversion of such Lender’s Eurodollar Loans pursuant to this Section 5.04 no longer exist (which notice such Lender agrees to give promptly upon such circumstances ceasing to exist) or the Borrower or Co-Borrower terminates its applicable suspension at a time when Eurodollar Loans made by other Lenders are outstanding, such Lender’s Base Rate Loans shall be automatically Converted, on the first day(s) of the next succeeding Interest Period(s) for such outstanding Eurodollar Loans, to the extent necessary so that, after giving effect thereto, all Base Rate and Eurodollar Loans are allocated among the Lenders ratably (as to principal amounts, Types and Interest Periods) in accordance with their respective Commitments.

5.05                           Compensation. The Borrower shall pay to the Administrative Agent for account of each Lender, upon the request of such Lender through the Administrative Agent, such amount as shall be sufficient to compensate it for any loss, cost or expense that such Lender reasonably determines is attributable to:

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(a)                                  any payment, mandatory or optional prepayment or Conversion of a Eurodollar Loan made by such Lender for any reason (including the acceleration of the Loans pursuant to Article XII) on a date other than the last day of the Interest Period for such Loan;

(b)                                 any failure by the Borrower for any reason to prepay a Eurodollar Loan pursuant to a notice of prepayment given in accordance with Section 2.06 (or any notice timely given postponing the date for prepayment given in accordance with Section 2.08), unless such notice is timely revoked pursuant to a notice of revocation given in accordance with Section 2.08; or

(c)                                  the assignment of any Eurodollar Loan other than on the last day of the applicable Interest Period as a result of a request by the Borrower pursuant to Section 5.07; or

(d)                                 following timely notification from the Administrative Agent that the Accepting Lenders and New Lenders will fund the Trillium Commitment Amount in connection with the refinancing of the Trillium Project pursuant to Section 2.11, any failure by the Borrower for any reason (including the failure of any of the conditions precedent specified in Section 2.11 to be satisfied except conditions that are based upon the discretionary approval of the Administrative Agent or any Lender of any due diligence items related to the Trillium Project) to borrow a Eurodollar Loan from such Lender (other than the default of such Lender) on the funding deadline as provided in the Borrower’s notice delivered pursuant to Section 2.11(a) (as such deadline may be modified (subject to the outside expiration date of the Trillium Commitment Notice, as specified in Section 2.11(e)) by at least three (3) Business Days prior notice to the Administrative Agent).

Without limiting the effect of the preceding provisions, such compensation shall include an amount equal to the excess, if any, of (i) the amount of interest that otherwise would have accrued on the principal amount so paid, prepaid, Converted or not borrowed for the period from the date of such payment, prepayment, Conversion or failure to borrow to the last day of the then current Interest Period for such Loan (or, in the case of a failure to borrow, the Interest Period for such Loan that would have commenced on the date specified for such borrowing) at the applicable Adjusted LIBO Rate for such Loan provided for herein over (ii) the amount of interest that such Lender would earn on such principal amount for such period if such Lender would have bid in the London interbank market for Dollar deposits of leading banks in amounts comparable to such principal amount and with maturities comparable to such period (as reasonably determined by such Lender), or if such Lender shall not, or shall cease to, make such bids, the equivalent rate, as reasonably determined by such Lender, derived from Page 3750 of the Dow ▇▇▇▇▇ Markets Service (Telerate) or other publicly available source as described in the definition of “LIBO Rate” in Section 1.01, plus, in the case of Section 5.05(c), the amount of interest for such period paid to such Lender pursuant to Section 5.07. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section 5.05 shall be delivered to the Borrower and shall be prima facie evidence of the accuracy of the determinations and calculations contained or asserted therein. The Borrower shall pay such Lender the amount shown as due on any such certificate within ten (10) days after receipt thereof. Any payment due to any of the Lenders pursuant to this Section 5.05 shall be deemed additional interest under such Lender’s Note.

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5.06                           Taxes.

(a)                                  Payments Free of Taxes. Any and all payments by or on account of any obligation of the Borrower hereunder or under any other Loan Document shall be made free and clear of and without deduction for any Indemnified Taxes or Other Taxes; provided that if the Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 5.06) the Administrative Agent and each Lender (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law.

(b)                                 Payment of Other Taxes by the Borrower. In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.

(c)                                  Indemnification by the Borrower. The Borrower shall indemnify the Administrative Agent and each Lender, within ten (10) days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent or such Lender, as the case may be, on or with respect to any payment by or on account of any obligation of the Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 5.06) and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be prima facie evidence of the accuracy of the determinations and calculations contained or asserted therein.

(d)                                 Evidence of Payments. As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the Borrower or Co-Borrower to a Governmental Authority, the Borrower or Co-Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(e)                                  Foreign Lenders. Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the Borrower is located, or any treaty to which such jurisdiction is a party, with respect to payments under this Agreement shall deliver to the Borrower or Co-Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable law, such properly completed and executed documentation prescribed by applicable law or reasonably requested by the Borrower or Co-Borrower as will permit such payments to be made without withholding or at a reduced rate. Until such documentation is provided, the Borrower or Co-Borrower shall be entitled to take all actions that are required to comply with Applicable Laws with respect to payments payable hereunder on account of Loans made to the Borrower and Co-Borrower by any Foreign Lender

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who has not complied with the requirements of this Section 5.06(e), and such actions shall not constitute a Default or an Event of Default.

(f)                                    Refunds. If the Administrative Agent or a Lender determines, in its sole discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section 5.06, provided no Major Default or Event of Default exists, it shall pay over such refund to the Borrower (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section 5.06 with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided, that the Borrower, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. This Section 5.06(f) shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information relating to its taxes which it deems confidential) to the Borrower or any other Person.

5.07                           Replacement of Lenders. If any Lender requests compensation pursuant to Section 5.01 or 5.06, or any Lender’s obligation to Continue Loans of any Type, or to Convert Loans of any Type into the other Type of Loan, shall be suspended pursuant to Section 5.01 or 5.03 (any such Lender requesting such compensation, or whose obligations are so suspended, being herein called a “Requesting Lender”), the Borrower, upon five (5) Business Days notice to such Requesting Lender and the Administrative Agent, may require that such Requesting Lender transfer all of its right, title and interest under this Agreement and such Requesting Lender’s Note and its interest in the other Loan Documents to an Eligible Assignee (a “Proposed Lender”) identified by the Borrower that is satisfactory to the Administrative Agent in its sole discretion (i) if such Proposed Lender agrees to assume all of the obligations of such Requesting Lender hereunder, and to purchase all of such Requesting Lender’s Loan hereunder for consideration equal to the aggregate outstanding principal amount of such Requesting Lender’s Loan, together with interest thereon to the date of such purchase (to the extent not paid by the Borrower), and satisfactory arrangements are made for payment to such Requesting Lender of all other amounts accrued and payable hereunder to such Requesting Lender as of the date of such transfer (including any fees accrued hereunder and any amounts that would be payable under Section 5.05 as if all of such Requesting Lender’s Loan were being prepaid in full on such date) and (ii) if such Requesting Lender has requested compensation pursuant to Section 5.01 or 5.06, such Proposed Lender’s aggregate requested compensation, if any, pursuant to Section 5.01 or 5.06 with respect to such Requesting Lender’s Loan is lower than that of the Requesting Lender. Subject to the provisions of Section 14.07(b), such Proposed Lender shall be a “Lender” for all purposes hereunder. Without prejudice to the survival of any other agreement of the Borrower hereunder the agreements of the Borrower contained in Sections 5.01, 5.06, 14.03 and 14.04 (without duplication of any payments made to such Requesting Lender by the Borrower or the Proposed Lender) shall survive for the benefit of such Requesting Lender under this Section 5.07 with respect to the time prior to such replacement.

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ARTICLE 6

CONDITIONS PRECEDENT

6.01                           Conditions Precedent to Effectiveness of Loan Commitments. The effectiveness of the Commitments and the obligation of the Lenders to make the Loans are subject to the conditions precedent that, on or prior to the Closing Date, (i) the Administrative Agent shall have received each of the documents (duly executed and completed by the part(y)(ies) thereto and acknowledged when applicable) referred to below in this Section 6.01, (ii) each of the other conditions listed below in this Section 6.01 is satisfied, the satisfaction of each of such conditions to be satisfactory to the Administrative Agent (and to the extent specified below, to each Lender) in form and substance (or any such condition shall have been waived in accordance with Section 14.05), (iii) all of the representations and warranties of the Borrower (without giving effect to any qualification therein which limits any such representations and warranties to the “knowledge” or “best knowledge” of the Borrower or any other Borrower Party) shall be true and correct on the Closing Date, (iv) the Liens granted by the Security Documents shall have attached and been perfected, with the priority as required pursuant to the terms hereof or thereof (or, in the case of the Liens encumbering the Projects the Title Policies insuring the effectiveness and priority of such Liens shall have been unconditionally delivered to the Administrative Agent in accordance with the closing instructions delivered on its behalf), (v) no Default or Event of Default shall exist or shall result therefrom, and (vi) all conditions incorporated into the Joinder and Supplement shall have been satisfied.

(a)                                  Agreement. From each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.

(b)                                 Notes. The Notes for each Lender.

(c)                                  Deed of Trust. Each Deed of Trust, in form for recording.

(d)                                 Environmental Indemnity. The Environmental Indemnity.

(e)                                  Project-Level Account Security Agreement. The Project-Level Account Security Agreement.

(f)                                    General Assignment. The General Assignment.

(g)                                 Property Manager’s Consent. The Property Manager’s Consent.

(h)                                 Other Loan Documents. The Guarantor Documents and all other Loan Documents.

(i)                                     Opinion of Counsel to the Borrower Parties. A favorable written opinion, dated the Closing Date, of ▇▇▇, Castle & ▇▇▇▇▇▇▇▇▇ LLP, counsel to the Borrower and furnishing

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such opinions at the Borrower’s request on behalf of the other Borrower Parties, and covering such matters relating to the Borrower Parties, this Agreement, the other Loan Documents, and the Transactions as the Administrative Agent shall reasonably request. The Borrower hereby requests such counsel to deliver such opinion to the Lenders and the Administrative Agent.

(j)                                     Organizational Documents. Copies of (i) the Certificate of Incorporation, Certificate of Formation, Certificate of Limited Partnership or similar formation document of each of the Borrower Parties, certified by the Secretary of State of the state of formation of such Person as of a recent date, (ii) the other Organizational Documents of each of the Borrower Parties certified by any Authorized Officer on behalf of such Borrower Party, (iii) the applicable resolutions of each of the Borrower Parties authorizing the execution and delivery of the Loan Documents to which they are a party, in each case certified by an Authorized Officer on behalf of such Borrower Party as of the date of this Agreement as being accurate and complete, all in form and substance satisfactory to the Administrative Agent and its counsel, (iv) certificates signed by an Authorized Officer on behalf of the applicable Person certifying the name, incumbency and signature of each individual authorized to execute the Loan Documents to which such Person is a party and the other documents or certificates to be delivered pursuant hereto or thereto, on which the Administrative Agent and the Lenders may conclusively rely unless a revised certificate is similarly so delivered in the future, and (v) good standing certificates with respect to each Borrower Party that is organized under the laws of any state of the United States of America from such state and good standing certificates and authority to conduct business with respect to the Borrower, the Borrower’s Member and the Borrower’s Manager from the State of California.

(k)                                  Title Insurance; Priority. An ALTA policy or policies (or pro forma policy or policies) of title insurance for each Project satisfactory to the Administrative Agent (collectively, the “Title Policy”), together with evidence of the payment of all premiums due thereon, issued by the Title Company (i) each insuring the Administrative Agent for the benefit of the Lenders in an amount equal to the aggregate amount of the Commitments (to the extent advanced) in effect on the Closing Date (with a tie-in endorsement satisfactory to the Administrative Agent) that the Borrower is lawfully seized and possessed of a valid and subsisting fee simple (or other applicable) interest in the Projects subject to no Liens other than Permitted Title Exceptions and (ii) providing such other affirmative insurance and endorsements as the Administrative Agent may require in each case as approved by the Administrative Agent. In addition, the Borrower shall have paid to the Title Company all expenses and premiums of the Title Company in connection with the issuance of such policies and all recording and filing fees payable in connection with recording the Deeds of Trust and the filing of the Uniform Commercial Code financing statements related thereto in the appropriate offices.

(l)                                     Survey. An “as-built” survey of each Project, each satisfactory to the Administrative Agent in form and content and made by a registered land surveyor satisfactory to the Administrative Agent, each survey showing, among other things through the use of course bearings and distances, (i) all easements and roads or rights of way (including all access to public roads) and setback lines, if any, affecting the Improvements and that the same are unobstructed or any such obstructions are acceptable to the Administrative Agent; (ii) the dimensions of all existing buildings and distance of all material Improvements from the lot lines; (iii) no

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encroachments by improvements located on adjoining property that are not acceptable to the Administrative Agent; and (iv) such additional information which may be reasonably required by the Administrative Agent. Each said survey shall be dated a date reasonably satisfactory to the Administrative Agent, bear a proper certificate substantially in the form of Exhibit M attached hereto by the surveyor in favor of the Administrative Agent (on behalf of the Lenders) and the Title Company and include the legal description of the Project.

(m)                               Certificates of Occupancy. Copies of permanent and unconditional certificates of occupancy permitting the fully functioning operation and occupancy of the Projects and of such other permits necessary for the use and operation of the Projects issued by the respective Governmental Authorities having jurisdiction over the Projects, together with such other evidence as may be requested by the Administrative Agent with respect to the compliance of the Projects with zoning requirements.

(n)                                 Insurance. A copy of the insurance policies required by Section 8.05 or certificates of insurance with respect thereto, such policies or certificates, as the case may be, to be in form and substance, and issued by companies, acceptable to the Administrative Agent and otherwise in compliance with the terms of Section 8.05, together with evidence of the payment of all premiums therefor.

(o)                                 Environmental Report. The Environmental Reports.

(p)                                 Leases. (i) An affidavit (the “Leasing Affidavit”) of an Authorized Officer of the Borrower certifying that except as disclosed in the estoppel certificates delivered to the Administrative Agent prior to the Closing Date, that certain ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Company Delinquency/Aging Report (Summarized) dated 7/20//2005 provided to the Administrative Agent, or the rent rolls delivered to the Administrative Agent pursuant to Section 7.22, (A) each tenant lease listed in the Leasing Affidavit is in full force and effect; (B) the tenant lease summaries provided by the Borrower to the Administrative Agent are true and correct and, as to all matters contained therein relating to rent, term, termination rights, options to renew, extend or expand, rights of first refusal or offer, tenant improvement allowances, security deposits and other credit enhancements, insurance, tax and operating expense recovery, and obligations with respect to subordination, non-disturbance and attornment, complete in all material respects, and such summaries do not fail to disclose any material term of any Lease which would adversely affect the obligation of the tenant thereunder to pay rent or perform any of its other material obligations for the entire term thereof consistent with the terms disclosed in such summary and the rent rolls delivered to the Administrative Agent pursuant to Section 7.22; (C) no defaults exist under any of the Leases (other than the Major Leases) by any party (including any guarantor) thereto that, individually or in the aggregate with respect to all such defaults, would result in a Material Adverse Effect and, to the knowledge of the Borrower, no material default exists under any of the Major Leases; and (D) to the Borrower’s knowledge, no event which would result in a material adverse change in the financial condition, operations or business of one or more tenants under Major Leases has occurred which the Borrower has determined would adversely affect the ability of such tenant to pay its rent and perform its other material obligations under such Major Lease and (ii) the standard office lease form and the standard retail lease form (both as approved by the Administrative Agent) to be used for the Projects.

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(q)                                 Estoppels. Estoppel certificates in form and substance satisfactory to the Administrative Agent from tenants covering at least seventy-five percent (75%) of all the leased space in the Projects, except to the extent that the Administrative Agent agrees in writing to defer the receipt of any estoppel certificate to a date subsequent to the Closing Date, in which case the Borrower shall use commercially reasonable efforts to obtain such deferred estoppel certificates as promptly as possible following the Closing Date. For purposes of this requirement, it is agreed that the form tenant estoppels required by any applicable Approved Lease shall be acceptable to the Administrative Agent.

(r)                                    SNDA Agreements. The Borrower will distribute and use commercially reasonable efforts to obtain the SNDA Agreements duly executed by each tenant under a Major Lease.

(s)                                  Non-Foreign Status. A certificate by an Authorized Officer certifying the Borrower’s tax identification number and the fact that the Borrower is not a foreign person under the Code.

(t)                                    UCC Searches. Uniform Commercial Code searches with respect to the Borrower, the Borrower’s Member and the Borrower’s Manager as required by the Administrative Agent.

(u)                                 Appraisal. The Appraisals indicating an “as-is” value for each of the Projects, such that the Allocated Loan Amount for each Project shall not exceed sixty percent (60%) of the Appraised Value of such Project.

(v)                                 Property Management and Leasing Agreements. The Property Management Agreement and all brokerage and/or leasing agreements affecting the Projects and certified by an Authorized Officer to be true, correct and complete in all respects.

(w)                               Financial Statements. Copies of the most recent audited and unaudited annual and quarterly financial statements of the Borrower’s Member, and a certificate dated the Closing Date and signed by an Authorized Officer on behalf of the Borrower’s Member stating that (i) such financial statements are true, complete and correct in all material respects and (ii) no event that could reasonably be expected to have a Material Adverse Effect has occurred since the date of such financial statements, all of the foregoing to be satisfactory to the Administrative Agent and each Lender in their reasonable discretion.

(x)                                   Approved Annual Budget. A copy of the Annual Budget for each Project for the current calendar year.

(y)                                 Property Condition Report. A survey of the physical condition of the Projects prepared by a licensed engineer selected by the Administrative Agent and in accordance with the Administrative Agent’s scope.

(z)                                   Project-Level Accounts. The Project-Level Accounts shall have been established pursuant to the terms of this Agreement and any other Loan Document.

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(aa)                            Seismic Report. A seismic report for each Project prepared by a firm of licensed engineers selected by the Administrative Agent and prepared in accordance with the Administrative Agent’s scope for such reports and otherwise acceptable to the Administrative Agent in all respects.

(bb)                          Fees and Expenses. The Borrower shall have paid (i) all fees then due and payable to the Administrative Agent pursuant to the Fee Letter, (ii) any other fees then due to the Administrative Agent, Eurohypo or the Arranger and (iii) any fees and expenses due to the Administrative Agent or the Arranger pursuant to Section 14.03, including the reasonable fees and expenses of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent and Eurohypo.

(cc)                            Other Documents. Such other documents as the Administrative Agent may reasonably request.

ARTICLE 7

REPRESENTATIONS AND WARRANTIES

The Borrower represents and warrants to the Administrative Agent and the Lenders as of the date hereof that:

7.01                           Organization; Powers. Each of the Borrower Parties is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, has all requisite power and authority to carry on its business as now conducted and, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required. The Borrower Parties are each qualified to do business and in good standing in the State of California except for the Co-Borrower which is qualified to do business and in good standing in the State of Hawaii.

7.02                           Authorization; Enforceability. The Transactions applicable to each Borrower Party are within such Borrower Party’s organizational powers and have been duly authorized by all necessary organizational action under their respective Organizational Documents. This Agreement and the other Loan Documents have been duly executed and delivered by the Borrower Parties party thereto and each of the Loan Documents to which a Borrower Party is a party when delivered will constitute, a legal, valid and binding obligation of the applicable Borrower Party, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

7.03                           Government Approvals; No Conflicts. The Transactions (a) do not require any Government Approvals of, registration or filing with, or any other action by, any Governmental Authority, except for (i) such as have been obtained or made and are in full force and effect and (ii) filings and recordings in respect of the Liens created pursuant to the Security Documents, (b) will not violate any Applicable Law applicable to the Borrower Parties or the

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Organizational Documents of any of the Borrower Parties, (c) will not violate or result in a default under any material indenture, agreement or other instrument binding upon any of the Borrower Parties, or give rise to a right thereunder to require any payment to be made by any of the Borrower Parties, and (d) except for the Liens created pursuant to the Security Documents, will not result in the creation or imposition of any Lien on any asset of any of the Borrower Parties.

7.04                           Financial Condition. The Borrower has heretofore furnished to the Administrative Agent certain financial statements of the Borrower’s Member. All such financial statements are complete and correct in all material respects and fairly present the financial condition of Borrower’s Member, as of the dates of such financial statements, all in accordance with GAAP. Each of the Borrower and Borrower’s Member, on the date hereof, does not have any Indebtedness (other than security deposits and tenant improvement allowances under the Leases that are described in the tenant lease summaries provided by the Borrower to the Administrative Agent and that are in amounts and on terms consistent with market terms and in the ordinary course of business), material contingent liabilities, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments, except as referred to or reflected or provided for in said financial statements as of said dates and except for Real Estate Taxes and Other Charges that are not yet delinquent. Since the applicable dates of such financial statements, except as disclosed in Schedule 7.04 attached hereto, there has been no event that could reasonably be expected to have a Material Adverse Effect.

7.05                           Litigation. Except as disclosed in Schedule 7.05 hereto, there are no legal or arbitral proceedings, or any proceedings by or before any Governmental Authority or agency of which the Borrower, Borrower’s Member or Borrower’s Manager has received written notice, now pending or (to the knowledge of the Borrower) threatened in writing against the Borrower, the Projects, the Borrower’s Member or Borrower’s Manager except for those which (a) (subject to applicable deductibles or self-insurance) are fully covered by insurance maintained by or for the Borrower, the Borrower’s Member or the Borrower’s Manager or (b) involve uninsured claims that do not exceed $75,000 individually, or in the aggregate for all such claims.

7.06                           ERISA. Neither the Borrower nor Borrower’s Member has established any Plan which would cause the Borrower or the Borrower’s Member to be subject to ERISA and none of the Borrower’s or the Borrower’s Member’s assets constitutes or will constitute “plan assets” of one or more Plans. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to result in a Material Adverse Effect. Each Plan established by a Borrower Party and, to the knowledge of the Borrower Parties, each of its ERISA Affiliates and each Multiemployer Plan, is in compliance with, the applicable provisions of ERISA, the Code and any other Applicable Law.

7.07                           Taxes. Each of the Borrower Parties has timely filed or timely caused to be filed (or obtained effective extensions for filing) all tax returns and reports required to have been filed and has paid or caused to be paid all Taxes required to have been paid by it, except Taxes that are being contested in good faith by appropriate proceedings and (a) for which such

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Borrower Party has set aside on its books adequate reserves in accordance with GAAP or (b) to the extent that the failure to do so could not reasonably be expected to result in a Material Adverse Effect.

7.08                           Investment and Holding Company Status. None of the Borrower Parties is (a) an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940 or (b) a “holding company”, or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company”, as defined in, or subject to regulation under, the Public Utility Holding Company Act of 1935.

7.09                           Environmental Matters. Except for matters expressly and specifically set forth in the Environmental Reports or the Property Condition Reports or matters disclosed in Schedule 7.09 or Schedule 8.11 attached hereto, to the Borrower’s knowledge:

(a)                                  The Borrower and each Project is in compliance with all applicable Environmental Laws, except where the failure to comply with such laws is not reasonably likely to result in a Material Adverse Effect.

(b)                                 There is no Environmental Claim of which the Borrower has received written notice pending, or to the Borrower’s knowledge, threatened in writing, and no penalties arising under Environmental Laws have been assessed, against the Borrower, any Project or, to the Borrower’s knowledge, against any Person whose liability for any Environmental Claim the Borrower or the Borrower’s Member has or may have retained or assumed either contractually or by operation of law, and the Borrower has received no written notice of any investigation or review which is pending or, to the knowledge of the Borrower, threatened in writing by any Governmental Authority, citizens group, employee or other Person with respect to any alleged failure by the Borrower, the Borrower’s Member or any Project to have any environmental, health or safety permit, license or other authorization required under, or to otherwise comply with, any Environmental Law or with respect to any alleged liability of the Borrower or the Borrower’s Member for any Use or Release of any Hazardous Substances.

(c)                                  There have been no past, and there are no present, Releases of any Hazardous Substance that could reasonably be anticipated to form the basis of any Environmental Claim against the Borrower, the Borrower’s Member, any Project or, to the knowledge of the Borrower, against any Person whose liability for any Environmental Claim the Borrower or the Borrower’s Member has or may have retained or assumed either contractually or by operation of law.

(d)                                 To the Borrower’s knowledge, there is no Release of Hazardous Substances migrating to any Project which could require Remediation or require the Borrower to provide notice to any Governmental Authority.

(e)                                  There is not present at, on, in or under any Project, PCB-containing equipment, asbestos or asbestos containing materials, underground storage tanks or surface impoundments for Hazardous Substances, lead in drinking water (except in concentrations that

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comply with all Environmental Laws), or lead-based paint (except in compliance with all applicable Environmental Laws).

(f)                                    No Liens are presently recorded with the appropriate land records under or pursuant to any Environmental Law with respect to any Project and, to the Borrower’s knowledge no Governmental Authority has been taking or is in the process of taking any action that could subject any Project to Liens under any Environmental Law.

(g)                                 The Borrower has provided to the Administrative Agent’s environmental consultant prior to the Closing Date true and correct copies of all materials, environmental reports and other documents pertaining to the Projects requested by the consultant and in the Borrower’s possession or control.

7.10                           Organizational Structure. The Borrower has heretofore delivered to the Administrative Agent a true and complete copy of the Organizational Documents of each Borrower Party. The sole member of the Borrower on the date hereof is the Borrower’s Member. The sole manager of Borrower and general partner of Borrower’s Member on the date hereof is Borrower’s Manager.

7.11                           Subsidiaries. The Borrower’s Member has no Subsidiaries except for Borrower and those specifically disclosed on Schedule 7.11. No other Borrower Party has any Subsidiaries except for those specifically disclosed on Schedule 7.11.

7.12                           Title. On the Closing Date, the Borrower will own and on such date will have good, indefeasible and insurable fee simple title to the portion of the Projects consisting of real property free and clear of all Liens, other than Permitted Title Exceptions. On the Closing Date, the Borrower will own or (in compliance with Section 9.04(d)) lease and will have good title to all other portions of the Project free and clear of all Liens, other than Permitted Title Exceptions and rights of equipment lessors under equipment leases currently in effect which comply with the requirements set forth in Sections 9.02(h) and 9.04(d). There are no outstanding options to purchase or rights of first refusal to purchase affecting the Projects.

7.13                           No Bankruptcy Filing. Neither the Borrower nor the Borrower’s Member is contemplating either the filing of a petition by it under any state or federal bankruptcy or insolvency laws or the liquidation of all or a major portion of its assets or property, and neither the Borrower nor Borrower’s Member has knowledge of any Person contemplating the filing of any such petition against the Borrower, the Borrower’s Member or the Borrower’s Manager.

7.14                           Executive Offices; Places of Organization. The location of the Borrower’s, the Borrower’s Member’s and the Borrower’s Manager’s principal place of business and chief executive office is the address identified in the “Address for Notices” area beneath the Borrower’s name on the Borrower’s signature page to this Agreement, except to the extent changed in accordance with Section 9.07. The Borrower was organized in the State of Delaware, and the Borrower’s Member and the Borrower’s Manager were organized in the State of California.

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7.15                           Compliance; Government Approvals. Except as expressly set forth in the Property Condition Report for each Project, the Environmental Reports, or the seismic reports delivered for the Projects pursuant to Section 6.01(aa), the Borrower, each Project and the Borrower’s use thereof and operations thereat comply in all material respects with all Applicable Laws. All material Government Approvals necessary under Applicable Law in connection with the operation of the Projects as contemplated by the Loan Documents have been duly obtained, are in full force and effect, are not subject to appeal, are held in the name of the Borrower (or Borrower’s Member for the benefit of the Borrower) and are free from conditions or requirements compliance with which could reasonably be expected to have a Material Adverse Effect or which the Borrower does not reasonably expect to be able to satisfy. To the best knowledge of the Borrower, there is no proceeding pending or threatened in writing that seeks, or may reasonably be expected, to rescind, terminate, Modify or suspend any such Government Approval. Except for business licenses and other licenses or permits that are not specifically applicable to the Projects, the Borrower has no reason to believe that the Administrative Agent, acting for the benefit of the Lenders, will not be entitled, without undue expense or delay, to the benefit of each such Government Approval upon the exercise of remedies under the Security Documents.

7.16                           Condemnation; Casualty. To the Borrower’s knowledge, no Taking has been commenced or is presently contemplated with respect to all or any portion of any Project or for the relocation of roadways providing access to any Project. No Casualty Event of any material nature that has not been substantially repaired has occurred with respect to any Project.

7.17                           Utilities and Public Access; No Shared Facilities. Each Project has adequate rights of access to public ways and is served by adequate electric, gas, water, sewer, sanitary sewer and storm drain facilities. All public utilities necessary to the use and enjoyment of each Project as intended to be used and enjoyed are located in the public right-of-way abutting each Project except as otherwise shown on the survey of such Project provided to the Administrative Agent.

7.18                           Solvency. On the Closing Date and after and giving effect to the Loans occurring on the Closing Date, and the disbursement of the proceeds of such Loans pursuant to the Borrower’s instructions, each Borrower Party is and will be Solvent.

7.19                           Foreign Person. Neither the Borrower nor Borrower’s Member is a “foreign person” within the meaning of Section 1445(f)(3) of the Code.

7.20                           No Joint Assessment; Separate Lots. The Borrower has not suffered, permitted or initiated the joint assessment of any Project with any other real property constituting a separate tax lot.

7.21                           Security Interests and Liens. The Security Documents create (and upon recordation of the Deeds of Trust, filing of the applicable financing statements in the appropriate filing offices and the execution and delivery by the Depository Bank of control agreements with respect to any pledged deposit accounts there will be perfected as to any portion of such collateral consisting of the deposit account itself and the securities entitlements thereto), as

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security for the Obligations, valid, enforceable, perfected and first priority security interests in and Liens on all of the respective collateral intended to be covered thereunder, in favor of the Administrative Agent as administrative agent for the ratable benefit of the Lenders, subject to no Liens other than the Permitted Title Exceptions and rights of equipment lessors under equipment leases currently in effect which comply with the requirements set forth in Sections 9.02(h) and 9.04(d), except as enforceability may be limited by applicable insolvency, bankruptcy, reorganization, moratorium or other laws affecting creditors’ rights generally, or general principles of equity, whether such enforceability is considered in a proceeding in equity or at law. Other than in connection with any future change in the Borrower’s name or the location in which the Borrower is organized or registered, no further recordings or filings are or will be required in connection with the creation, perfection or enforcement of such security interests and Liens, other than the filing of continuation statements and Notices of Intent to Preserve Security Interests in accordance with the Uniform Commercial Code and the California Civil Code. A financing statement covering all property covered by any Security Document that is subject to a Uniform Commercial Code financing statement has been filed and/or recorded, as appropriate, (or irrevocably delivered to the Administrative Agent or a title agent for such recordation or filing) in all places necessary to perfect a valid first priority security interest with respect to the rights and property that are the subject of such Security Document to the extent governed by the Uniform Commercial Code and to the extent such security can be perfected by such filing.

7.22                           Leases. Except as disclosed in the estoppel certificates delivered to the Administrative Agent prior to the Closing Date, in that certain ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Company Delinquency/Aging Report (Summarized) dated 7/20/2005 provided to the Administrative Agent prior to the Closing Date, or (as to items (2) through (10) below) the rent rolls for each Project attached hereto as Schedule 7.22, with respect to the Leases (which term, for the purposes of this Section 7.22 is limited to tenant leases): (1) the rent rolls attached hereto as Schedule 7.22 are true, correct and complete and the Leases referred to thereon are all valid and in full force and effect; (2) the Leases (including Modifications thereto) are in writing, and there are no oral agreements with respect thereto; (3) the copies of each of the Leases (if any) delivered to the Administrative Agent are true, correct and complete in all material respects and have not been Modified (or further Modified); (4) the lease summaries delivered to the Administrative Agent are true and correct in all material respects and, as to all matters contained therein relating to rent, term, termination rights, options to renew, extend or expand, rights of first refusal or offer, tenant improvement allowances, security deposits and other credit enhancements, insurance, tax and operating expense recovery, and obligations with respect to subordination, non-disturbance and attornment, complete in all material respects, and such summaries do not fail to disclose any material term of any Lease which would materially impact the obligation of the tenant thereunder to pay rent or perform any of its other material obligations for the entire term thereof as disclosed in such summary and the rent rolls attached hereto as Schedule 7.22; (5) to the Borrower’s knowledge, no defaults exist under any of the Leases (other than the Major Leases) by any party (including any guarantor) thereto that, individually or in the aggregate with respect to all such defaults would result in a Material Adverse Effect and, to the knowledge of the Borrower, no material default exists under any of the Major Leases; (6) the Borrower has no knowledge of any presently effective notice of termination or notice of default given by any tenant with respect to any Major Lease or under any other Leases that individually or in the aggregate could be

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reasonably expected to result in a Material Adverse Effect; (7) the Borrower has not made any presently effective assignment or pledge of any of the Leases, the rents or any interests therein except to the Administrative Agent; (8) no tenant or other party has an option or right of first refusal to purchase all or any portion of any Project; (9) except as disclosed in the lease summaries delivered by the Borrower to the Administrative Agent, no tenant has the right to terminate its lease prior to expiration of the stated term of such Lease (except as a result of a casualty or condemnation); and (10) no tenant has prepaid more than one month’s rent in advance (except for bona fide security deposits and estimated payments of operating expenses, taxes and other pass-throughs paid by tenants pursuant to their Leases not prepaid more than one month prior to the date such estimated payments are due).

7.23                           Insurance. The Borrower has in force, and has paid (in each case to the extent now due and payable) the Insurance Premiums in respect of all of the insurance required by Section 8.05.

7.24                           Physical Condition. Except as expressly and specifically described and disclosed in the Property Condition Reports for the Projects, the seismic reports delivered for the Projects pursuant to Section 6.01(aa), the Environmental Reports for the Projects and the capital improvement schedules contained in the 2005 budgets for the Projects previously delivered to the Administrative Agent, and except for the work described in Schedule 8.21, to the Borrower’s knowledge, each Project, including all buildings, improvements, parking facilities, sidewalks, storm drainage systems, roofs, plumbing systems, HVAC systems, fire protection systems, electrical systems, equipment, elevators, exterior sidings and doors, landscaping, irrigation systems and all structural components, is in good condition, order and repair in all material respects; to the Borrower’s knowledge, there exists no structural or other material defects or damages in any Project, whether latent or otherwise, and the Borrower has not received written notice from any insurance company or bonding company of any defects or inadequacies in any Project, or any part thereof, which would adversely affect the insurability of the same or cause the imposition of extraordinary premiums or charges thereon or of any termination or threatened termination of any policy of insurance or bond. Notwithstanding the provisions of Section 12.01(c), if any representation or warranty contained in this Section 7.24 is untrue at any time with respect to any Project, such Default or Event of Default may be cured if the Borrower, within the cure period set forth in Section 12.01(r), performs such acts as are sufficient to cause this representation and warranty to be true by the end of such cure period.

7.25                           Flood Zone. Except as may be disclosed on the survey of the Project, or any flood zone certification delivered by the Borrower to the Administrative Agent prior to the Closing Date, no portion of any Project is located in a flood hazard area as designated by the Federal Emergency Management Agency or, if in a flood zone, flood insurance is maintained therefor in full compliance with the provisions of Section 8.05(a)(i).

7.26                           Management Agreement. The Property Management Agreement is the only management and/or leasing agreement related to each Project, and is in full force and effect with no default or event of default existing thereunder, and the copy of the Property Management Agreement delivered to the Administrative Agent is a true, correct and complete copy.

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7.27                           Boundaries. Except as may be disclosed on the surveys delivered pursuant to Section 6.01(l) and in the Title Policy, to the Borrower’s knowledge: (i) none of the Improvements is outside the boundaries of any Project (or building restriction or setback lines applicable thereto); (ii) no improvements on adjoining properties encroach upon any Project; and (iii) no Improvements encroach upon or violate any easements or (in any respect which would have a Material Adverse Effect) any other encumbrance upon any Project.

7.28                           Illegal Activity. No portion of any Project has been purchased with proceeds of any illegal activity and no part of the proceeds of the Loans will be used in connection with any illegal activity.

7.29                           Permitted Liens. None of the Permitted Title Exceptions or Permitted Liens individually or in the aggregate will have a Material Adverse Effect.

7.30                           Foreign Assets Control Regulations, Etc. Neither the execution and delivery of the Notes and the other Loan Documents by the Borrower Parties nor the use of the proceeds of the Loan, will violate the Trading with the Enemy Act, as amended, or any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or the Anti-Terrorism Order or any enabling legislation or executive order relating to any of the same. Without limiting the generality of the foregoing, no Borrower Party or any of their respective Subsidiaries (a) is or will become a blocked person described in Section 1 of the Anti-Terrorism Order or (b) knowingly engages or will engage in any dealings or transactions or be otherwise associated with any person who is known or who (after such inquiry as may be required by Applicable Law) should be known to such Borrower Party or Subsidiary to be such a blocked person.

7.31                           Defaults. No Default exists under any of the Loan Documents.

7.32                           Other Representations. All of the representations in this Agreement and the other Loan Documents by the Borrower and its Affiliates are true, correct and complete in all material respects as of the date hereof.

7.33                           True and Complete Disclosure. The information, reports, financial statements, exhibits and schedules furnished in writing by or on behalf of the Borrower Parties to the Administrative Agent or any Lender in connection with the negotiation, preparation or delivery of this Agreement and the other Loan Documents or included herein or therein or delivered pursuant hereto or thereto, do not contain any untrue statement of material fact or omit to state any material fact known to the Borrower necessary to make the statements herein or therein, in light of the circumstances under which they were made, not misleading. All written information furnished after the date hereof by any Borrower Party to the Administrative Agent and the Lenders in connection with this Agreement and the other Loan Documents and the Transactions will, to the Borrower’s knowledge, be true, complete and accurate in every material respect, or (in the case of projections) based on reasonable estimates, on the date as of which such information is stated or certified. There is no fact presently known to the Borrower or the Borrower’s Manager that could reasonably be anticipated to have a Material Adverse Effect that has not been disclosed herein, in the other Loan Documents or in a report, financial statement,

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exhibit, schedule, disclosure letter or other writing furnished to the Administrative Agent or the Lenders for use in connection with the Transactions.

7.34                           Reserved.

7.35                           Limited Partners. The Borrower represents and warrants to the Lenders as follows: (a) no limited partner of the Borrower’s Member is presently asserting, or has threatened to assert, by action or otherwise, any claims or other liability of the Borrower’s Manager in its capacity as the general partner of Borrower’s Member or otherwise or any person related to such general partner with respect to the business, operations or financing of the Borrower or the Borrower’s Member or the past, present or future offering of any limited partnership interests in the Borrower’s Member or the making of the Loans or the grant of the security therefor (an “LP Claim,” which term shall also refer to any other claim that any such limited partner may make against the Borrower’s Manager from time to time of a nature that would indicate that any assurance contained in this Section may be incorrect); and (b) to the extent required, the consent of such limited partners to the Loans has been obtained and is fully effective.

7.36                           Non-Foreign Status. The Borrower represents and warrants to the Lenders that its tax identification number is ▇▇-▇▇▇▇▇▇▇ under the Code and that the Borrower’s Member’s tax identification number is ▇▇-▇▇▇▇▇▇▇ under the Code.

7.37                           Borrower’s Member. The Borrower’s Member is permitted under the limited partnership agreement of the Borrower’s Member, as amended, or pursuant to consents obtained from the limited partners of the Borrower’s Member, to enter into or authorize Borrower to enter into the Transactions including the borrowing of the Loans by the Borrower. There is not, and after the Closing Date the original Borrower’s Member will not incur, any ‘Portfolio Debt’ (as such term is defined in the limited partnership agreement of the Borrower’s Member, as amended) that is not permitted under the limited partnership agreement of the Borrower’s Member, as amended, or pursuant to consents obtained from the limited partners of the Borrower’s Member.

7.38                           Co-Borrower’s Representations. All of the Co-Borrower’s representations made pursuant to the Joinder and Supplement are true and correct.

ARTICLE 8

AFFIRMATIVE COVENANTS OF THE BORROWER

The Borrower covenants and agrees with the Lenders and the Administrative Agent that, so long as any Commitment or Loan is outstanding and until payment in full of all amounts payable by the Borrower hereunder:

8.01                           Information. The Borrower shall deliver to the Administrative Agent:

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(a)                                  Within one hundred (100) days after the end of each fiscal year of the Borrower’s operation of the Project, the Borrower shall furnish to the Administrative Agent (i) an annual report containing a summary of operating results for such year, a history of operating results broken down by quarter and twelve (12) month periods for the Borrower and the Borrower’s Member since inception (which may be consolidated provided that such report contains notes clearly identifying each item on such report which is attributable to the Borrower and the Borrower’s Member), an investment summary broken down for each of the Borrower’s properties, a comparison of actual results to budget for all of the Borrower’s properties for such year, audited financial statements for such year for the Borrower and the Borrower’s Member (which may be consolidated provided that such financial statements contain notes clearly identifying each item on such financial statements which is attributable to the Borrower, the Borrower’s Member and the Projects) (including a balance sheet, statement of income, statement of aggregate partners’ capital or member’s equity, statement of cash flows, and notes), and the operating budget for each of the Projects for the fiscal year then under way, all in the same form as the Borrower’s Member’s 2004 audited financial statements and related materials, which form is acceptable to Administrative Agent, and (ii) an updated rent roll for each of the Projects in the form delivered to the Administrative Agent prior to the Closing Date; provided however, following a Permitted Public REIT Transfer, in lieu of the items in clauses (i) and (ii) above, the Borrower shall furnish to the Administrative Agent, within the later of the time period for delivery of the annual report provided above or five (5) Business Days after the annual Form 10-K of the Permitted Public REIT becomes publicly available, the following: (i) the annual Form 10-K of the Permitted Public REIT, (ii) an annual summary of operating results for each of the Projects for such year, (iii) a comparison of actual results to budget for each of the Projects for such year, (iv) the operating budget for each of the Projects for the fiscal year then under way, (v) an unaudited balance sheet and income statement for such year for the Borrower (which may be consolidated provided that such financial statements contain notes identifying each item on such financial statements that is attributable to the Borrower or the Projects) and (vi) an updated rent roll for each of the Projects;

(b)                                 Within fifty (50) days after the end of each calendar quarter (or, in the case of the fourth calendar quarter for each fiscal year, within one hundred (100) days after the end of such quarter), the Borrower shall furnish to the Administrative Agent (i) a quarterly report containing a summary of operating results for such quarter and for the twelve (12) months ending with such quarter, a history of operating results broken down by quarter and twelve (12) month periods for the Borrower and Borrower’s Member since inception (which may be consolidated provided that such report contains notes clearly identifying each item on such report which is attributable to the Borrower and the Borrower’s Member), an investment summary broken down for each of the Borrower’s properties, a comparison of actual results to budget for all of the Borrower’s properties for such quarter and for the twelve (12) months ending with such quarter, unaudited financial statements for that quarter and for the twelve (12) months ending with such quarter for the Borrower and the Borrower’s Member (which may be consolidated provided that such financial statements contain notes clearly identifying each item on such financial statements which is attributable to the Borrower, the Borrower’s Member and the Projects) (including a balance sheet, statement of income, statement of partners’ capital or member’s equity, statement of cash flows, and notes), and in the same form as the most recent

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(as of the date hereof) quarterly report of the Borrower’s Member provided to the Administrative Agent pursuant to Section 6.01(w), which form is acceptable to Administrative Agent and (ii) an updated rent roll for each of the Projects in the form delivered to the Administrative Agent in connection with the Closing; provided however, following a Permitted Public REIT Transfer, in lieu of the items in clauses (i) and (ii) above, the Borrower shall furnish to the Administrative Agent, within the later of the time period provided above for delivery of the quarterly report (which shall instead be based on the Permitted Public REIT’s fiscal quarter) or five (5) Business Days after the Form 10-Q of the Permitted Public REIT for such fiscal quarter becomes publicly available, the following: (i) the most recent Form 10-Q of the Permitted Public REIT, (ii) a summary of operating results for each of the Projects as of the end of the current quarter for the year-to-date, (iii) a comparison of actual results to budget for each of the Projects as of the end of the current quarter for the year-to-date, (iv) an unaudited balance sheet and income statement for the Borrower as of the end of the current quarter for the year-to-date (which may be consolidated provided that such financial statements contain notes identifying each item on such financial statements that is attributable to the Borrower or the Projects) and (v) an updated rent roll for each of the Projects;

(c)                                  at the time of the delivery of each of the financial statements provided for in subsection (a) and subsection (b) of this Section 8.01, a certificate of an Authorized Officer on behalf of the Borrower, certifying (i) that such respective financial statements and reports as being true, correct, and complete in all material respects; (ii) that such officer has no knowledge, except as specifically stated, of any Default or if a Default has occurred, specifying the nature thereof in reasonable detail and the action which the Borrower is taking or proposes to take with respect thereto; (iii) that the Borrower is in compliance with the restrictions on Indebtedness set forth in Section 9.04; and (iv) containing a calculation in such reasonable detail as is acceptable to the Administrative Agent setting forth the Operating Income, Operating Expenses, Net Operating Income, Adjusted Net Operating Income, DSCR Debt Service, and Debt Service Coverage Ratio of the Borrower for the most recent calendar quarter;

(d)                                 from time to time, within fifteen (15) days after request therefor, such other information regarding the financial condition, operations, business or prospects of the Borrower, the Projects, the other Borrower Parties, the Bankruptcy Parties or status or terms of the Permitted Reorganization as the Administrative Agent may reasonably request, including, without limitation, if there is a material variation in the application of accounting principles as further described herein (i) a description in reasonable detail of any material variation between the application of accounting principles employed in the preparation of any annual or quarterly financial statement under Section 8.01 and the application of accounting principles employed in the preparation of the immediately preceding annual or quarterly financial statements and (ii) reasonable estimates of the difference between such statements arising as a consequence thereof; and

(e)                                  within ten (10) Business Days after the end of each calendar month during a Low DSCR Trigger Period, (i) an operating statement (showing monthly activity), with such detail and in a form reasonably satisfactory to the Administrative Agent, showing Operating Income, Operating Expenses, Net Operating Income, Adjusted Net Operating Income, DSCR Debt Service, and the Borrower’s calculation of Excess Cash for such month; (ii) the

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computations of Debt Service Coverage Ratio as calculated as of the end of the most recent calendar month; and (iii) a reconciliation of the results for such month and year-to-date as compared to the Approved Annual Budget for such period.

(f)                                    In the event of a Transfer to a Permitted REIT or its Permitted REIT Subsidiary in accordance with Section 9.03(a)(iii), the Borrower shall furnish to the Administrative Agent (a) if the Borrower shall have delivered a Guarantee of the Guaranteed Line of Credit, all compliance certificates, financial statements and all other financial and material reports required pursuant to the terms of the Primary Credit Facility of the Permitted REIT on or prior to the date(s) required for the delivery thereof by such Permitted REIT pursuant to the terms of the Primary Credit Facility of such Permitted REIT and (b) at all other times such compliance certificates, financial statements and all other financial and material reports delivered by the Permitted REIT pursuant to the terms of the Primary Credit Facility of the Permitted REIT as may be requested by the Administrative Agent from time to time, promptly following such request.

Any reports, statements or other information required to be delivered under this Agreement (other than the Form 10-K and Form 10-Q of the Permitted Public REIT, which may be delivered in paper or electronic form) shall be delivered (1) in paper form, (2) on a diskette, and (3) if requested by the Administrative Agent and within the capabilities of the Borrower’s data systems without change or modification thereto, in electronic form and prepared using a Microsoft Word for Windows or WordPerfect for Windows files (which files may be prepared using a spreadsheet program and saved as word processing files).

8.02                           Notices of Material Events. The Borrower shall give to the Administrative Agent prompt written notice after becoming aware of any of the following:

(a)                                  the occurrence of any Default or Event of Default, including a description of the same in reasonable detail;

(b)                                 the commencement (or threatened commencement in writing) of all material legal or arbitral proceedings whether or not covered by insurance policies maintained by or for the Borrower, the Borrower’s Member or the Borrower’s Manager in accordance herewith (it being understood that any monetary claims asserted in any proceeding which, individually or in the aggregate, exceeds $3,000,000 shall be deemed material), and of all proceedings by or before any Governmental Authority of a material nature, and any material development in respect of such legal or other proceedings, affecting any of the Borrower Parties or any Project;

(c)                                  the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, could reasonably be expected to result in liability of the Borrower Parties in an aggregate amount exceeding $250,000;

(d)                                 promptly after the Borrower knows or has reason to believe any default has occurred by the Borrower or tenant under any Major Lease or the Borrower has received a written notice of default from the tenant under any Major Lease, a notice of such default;

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(e)                                  copies of any material notices or documents pertaining to or related to the Projects, the Borrower or the Borrower’s Member received from any Governmental Authority; and, with respect to Major Leases only, any notices received asserting a material default by the landlord under such lease, or relating to an assignment of the lease by the tenant, or a subletting of all or substantially all of the premises thereunder, or the vacation of all or a material portion of the premises by the tenant, or a change in control of the tenant, or an election by the tenant to terminate the lease or any other event or condition which, as reasonably determined by the Borrower, would impact the obligation of the tenant thereunder to pay rent or perform any of its other material obligations for the entire term thereof as previously disclosed to the Administrative Agent;

(f)                                    notice of any Taking threatened in writing; or the occurrence of any Casualty Event resulting in damage or loss in excess of $500,000; and

(g)                                 any other development that results in, or could reasonably be expected to result in, a Material Adverse Effect.

Each notice delivered under this Section 8.02 shall be accompanied by a statement of an Authorized Officer of the Borrower setting forth, in reasonable detail, the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.

8.03                           Existence, Etc. The Borrower will, and will cause each other Borrower Party to, preserve and maintain its legal existence and all material rights, privileges, licenses and franchises necessary for the maintenance of its existence and the conduct of its affairs.

8.04                           Compliance with Laws; Adverse Regulatory Changes.

(a)                                  The Borrower shall comply in all material respects (subject to such more stringent requirements as may be set forth elsewhere herein) with all Applicable Laws. The Borrower shall maintain in full force and effect all required Government Approvals and shall from time to time obtain all Government Approvals as shall now or hereafter be necessary under Applicable Law in connection with the operation or maintenance of the Projects and shall comply, in all material respects, with all such Government Approvals and keep them in full force and effect. Upon request from time to time, the Borrower shall promptly furnish a true, correct and complete copy of each such Government Approval to the Administrative Agent. The Borrower shall, unless otherwise approved by the Administrative Agent in writing, use its reasonable efforts to contest any proceedings before any Governmental Authority and to resist any proposed adverse changes in Applicable Law to the extent that such proceedings or changes are directed specifically toward any Project or could reasonably be expected to have a Material Adverse Effect, but only to the extent that Borrower deems such action to be in the best interests of the affected Project in the exercise of its business judgment.

(b)                                 The Borrower, at its own expense, may contest by appropriate legal proceedings promptly initiated and conducted in good faith and with due diligence, the validity or application of any Applicable Law, and shall provide the Administrative Agent with notice of any such contest of a material nature, provided that:

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(i)                                     Reserved;

(ii)                                  the Borrower shall pay any outstanding fines, penalties or other payments under protest unless such proceeding shall suspend the collection of such items;

(iii)                               such proceeding shall be permitted under and be conducted in accordance with the applicable provisions of any other instrument governing the contest of such Applicable Laws to which the Borrower or any such Project is subject and shall not constitute a default thereunder;

(iv)                              no part of or interest in any Project (or the Borrower’s interest therein) will be in danger of being sold, forfeited, terminated, canceled or lost during the pendency of the proceeding;

(v)                                 such proceeding shall not subject the Borrower, the Administrative Agent or any Lender to criminal or civil liability (other than civil liability of the Borrower as to which adequate security has been provided pursuant to clause (vi) below);

(vi)                              unless paid under protest, the Borrower shall have furnished such security as may be required in the proceeding, or as may be reasonably requested by the Administrative Agent, to insure the payment of any such items, together with all interest and penalties thereon, which shall not be less than 110% of the maximum liability of the Borrower as reasonably determined by the Administrative Agent; and

(vii)                           the Borrower shall promptly upon final determination thereof pay the amount of such items, together with all costs, interest and penalties.

8.05                           Insurance.

(a)                                  The Borrower shall obtain and maintain, or cause to be maintained, for the benefit of the Borrower, the Administrative Agent and the Lenders, insurance for each Project providing at least the following coverages:

(i)                                     comprehensive all risk insurance (A) in an amount equal to one hundred percent (100%) of the full replacement cost (less deductible amounts provided for herein), which for purposes of this Agreement shall mean actual replacement value (exclusive of costs of excavations, foundations, underground utilities and footings) with a waiver of depreciation; (B) containing an agreed amount endorsement with respect to the Improvements and personal property at each Project waiving all co-insurance provisions (if applicable); (C) providing for no deductible in excess of Seventy-Five Thousand Dollars ($75,000) for all such insurance coverage; and (D) containing an “Ordinance or Law Coverage” or “Enforcement” endorsement if any of the Improvements or the use of each Project shall at any time constitute legal non-conforming structures or uses. In addition, the Borrower shall obtain: (y) if any portion of the Improvements is currently or at any time in the future located in a federally designated “special flood hazard area”, flood hazard insurance in an amount equal to the lesser of (1) the Outstanding Principal

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Amount of the Notes or (2) the maximum amount of such insurance available under the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as each may be amended or such greater amount as the Administrative Agent shall require; and (z) subject to Sections 8.05(a)(xi) and (xii), coverage for terrorism, terrorist acts and earthquake; provided that the insurance pursuant to clauses (y) and (z) hereof shall be on terms (other than with respect to deductibles and self-insurance) consistent with the comprehensive all risk insurance policy required under this subsection (i);

(ii)                                  commercial general liability insurance against claims for personal injury, bodily injury, death or property damage occurring upon, in or about the Project, such insurance (A) to be on the so-called “occurrence” form with an occurrence limit of not less than One Million and No/100 Dollars ($1,000,000) and an aggregate limit of not less than Two Million and No/100 Dollars ($2,000,000); (B) to continue at not less than the aforesaid limit until required to be changed by the Administrative Agent by reason of changed economic conditions making such protection inadequate; and (C) to cover at least the following hazards: (1) premises and operations; (2) products and completed operations on an “if any” basis; (3) independent contractors; (4) blanket contractual liability for all legal contracts; and (5) contractual liability covering the indemnities contained in the Loan Documents to the extent the same is available;

(iii)                               business income insurance (A) with loss payable to the Administrative Agent (on behalf of the Lenders); (B) covering all risks required to be covered by the insurance provided for in subsection (i) above for a period commencing at the time of loss for such length of time as it takes to repair or replace with the exercise of due diligence and dispatch; (C) containing an extended period of indemnity endorsement which provides that after the physical loss to the Improvements and personal property has been repaired, the continued loss of income will be insured until such income either returns to the same level it was at prior to the loss, or the expiration of twelve (12) months from the date that the Project is repaired or replaced and operations are resumed, whichever first occurs, and notwithstanding that the policy may expire prior to the end of such period; and (D) if there is a separate sublimit for business income insurance, such sublimit shall be not less than one hundred percent (100%) of the projected gross income from the Project for a period of eighteen (18) months. The amount of such business income insurance shall be determined prior to the date hereof and at least once each year thereafter based on the Borrower’s reasonable estimate of the gross income from the Project for the succeeding eighteen (18) month period. All proceeds payable to the Administrative Agent pursuant to this subsection (iii) shall be held by the Administrative Agent and shall be applied to debt service that is due and payable under the Notes with the amount in excess of such debt service during the period of business interruption held in a Controlled Account and available for release to the Borrower upon the completion of the restoration of the Project provided no Major Default or Event of Default then exists; provided, however, that nothing herein contained shall be deemed to relieve the Borrower of its obligations to pay the obligations secured by the Loan Documents on the respective dates of payment provided for in the Notes and the other Loan Documents except to the

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extent such amounts are actually paid out of the proceeds of such business income insurance;

(iv)                              at all times during which structural construction, repairs or alterations are being made with respect to the Improvements, and only if or to the extent the coverage specified herein is not provided through the other insurance maintained by or for the benefit of the Borrower, (A) owner’s contingent or protective liability insurance covering claims not covered by or under the terms or provisions of the above mentioned commercial general liability insurance policy; and (B) the insurance provided for in subsection (i) above written in a so-called builder’s risk completed value form (1) on a non-reporting basis, (2) against all risks insured against pursuant to subsection (i) above, (3) including permission to occupy the Project, and (4) with an agreed amount endorsement waiving co-insurance provisions;

(v)                                 workers’ compensation, subject to the statutory limits of the state in which the Project is located, and employer’s liability insurance with a limit of at least One Million and No/100 Dollars ($1,000,000) per accident and per disease per employee, and One Million and No/100 Dollars ($1,000,000) for disease aggregate in respect of any work or operations on or about the Project, or in connection with the Project or its operation (if applicable);

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

(vii)                           umbrella liability insurance in addition to primary coverage in an amount not less than Fifty Million and No/100 Dollars ($50,000,000) per occurrence on terms consistent with the commercial general liability insurance policy required under subsection (ii) above and subsections (viii) and (ix) below;

(viii)                        motor vehicle liability coverage for all owned and non-owned vehicles, including rented and leased vehicles containing minimum limits per occurrence of One Million and No/100 Dollars ($1,000,000);

(ix)                                if applicable to a particular Project, so-called “dramshop” insurance or other liability insurance required in connection with the sale by the Borrower of alcoholic beverages;

(x)                                   insurance against employee dishonesty in an amount not less than one (1) month of Operating Income from the Project and with a deductible not greater than Ten Thousand and No/100 Dollars ($10,000.00);

(xi)                                such coverages with respect to terrorism and terrorist acts as are then being maintained by prudent owners of institutionally owned “Class A” office buildings in the market where the Projects are located as reasonably determined by the Borrower and the Administrative Agent; it being acknowledged and agreed that the

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Administrative Agent and the Lenders have accepted the Borrower’s existing coverages, deductibles and self-insurance limits in effect on the Closing Date with respect to terrorism and terrorist acts;

(xii)                             such coverages with respect to earthquake as are then being maintained by prudent owners of institutionally owned “Class A” office buildings in the market where the Projects are located as reasonably determined by the Borrower and the Administrative Agent; it being acknowledged and agreed that the Administrative Agent and the Lenders have accepted the Borrower’s existing coverages, deductibles and self-insurance limits in effect on the Closing Date with respect to earthquake; and

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

(b)                                 All insurance provided for in Section 8.05(a) shall be obtained under valid and enforceable policies (collectively, the “Policies” or in the singular, the “Policy”) and, to the extent not specified above, shall be subject to the approval of the Administrative Agent as to deductibles, loss payees and insureds. Not less than fifteen (15) days prior to the expiration dates of the Policies theretofore furnished to the Administrative Agent, certificates of insurance evidencing the Policies accompanied by evidence satisfactory to the Administrative Agent of payment of the premiums then due thereunder (the “Insurance Premiums”), shall be delivered by the Borrower to the Administrative Agent; provided, however, that no Event of Default shall result from the Borrower’s failure to deliver or cause to be delivered such certificates or other evidence unless (i) on or prior to the expiration date of the applicable Policy, the Administrative Agent shall not have obtained certificates or other evidence satisfactory to it confirming that the Policies required hereunder shall have been extended for an additional period or shall have been replaced for an additional period with replacement Policies that comply with the requirements set forth in this Section 8.05 and (ii) on or prior to the fifth (5^th) Business Day after the expiration of such expiring Policy, the Administrative Agent shall not have received certificates of insurance evidencing the extension of the existing Policies or replacement Policies for an additional period accompanied by evidence satisfactory to the Administrative Agent of payment of the Insurance Premiums then due thereunder.

(c)                                  Each Policy shall (i) provide that adjustment and settlement of any claim equal to or in excess of the Insurance Threshold Amount shall be subject to the approval of the Administrative Agent in accordance with Section 10.01(b); provided that so long as no Event of Default exists, the Borrower may, upon notice to the Administrative Agent, settle and adjust any claim with respect to a Casualty Event in excess of the Insurance Threshold Amount without the prior consent of the Administrative Agent and the Borrower is hereby authorized to collect the Insurance Proceeds with respect to any such claim; provided that such adjustment is carried out in a competent and timely manner; (ii) include permission by the insurer for the parties to the transaction to waive all rights of subrogation against each other; (iii) to the extent such provisions are reasonably obtainable, provide that such insurance shall not be impaired or

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invalidated by virtue of (1) any act, failure to act or negligence of, or violation of declarations, warranties or conditions contained in such policy by, the Borrower, the Administrative Agent, the Lenders or any other named insured, additional insured, or loss payee, except for the willful misconduct of the Administrative Agent or the Lenders knowingly in violation of the conditions of such Policy or (2) any foreclosure or other proceeding or notice of sale relating to the Projects; (iv) be subject to a deductible, if any, not greater than $10,000 (except as otherwise specifically provided in or permitted by Section 8.05(a)); (v) contain an endorsement providing that none of the Administrative Agent, the Lenders or the Borrower shall be, or shall be deemed to be, a co-insurer with respect to any risk insured by such Policy; (vi) include effective waivers by the insurer of all claims for insurance premiums against any loss payees, additional insureds and named insureds (other than the Borrower Parties); (vii) provide that if all or any part of such Policy shall be canceled or terminated, or shall expire, the insurer will forthwith give notice thereof to each named insured, additional insured and loss payee and that no cancellation, termination, expiration, reduction in amount of, or material change (other than an increase) in, coverage thereof shall be effective until at least thirty (30) days after receipt by each named insured, additional insured and loss payee of written notice thereof; and (viii) provide that the Administrative Agent shall not be liable for any Insurance Premiums thereon or subject to any assessments thereunder.

(d)                                 If any such Insurance Proceeds required to be paid to the Administrative Agent are instead made payable to the Borrower, the Borrower hereby appoints the Administrative Agent as its attorney-in-fact, irrevocably and coupled with an interest, to endorse and/or transfer any such payment to the Administrative Agent (on behalf of the Lenders).

(e)                                  Except as otherwise provided by the terms of the blanket insurance policies maintained by the Borrower and/or its Affiliates with respect to the Borrower and the Projects as of the Closing Date, or comparable blanket policies that may be obtained by the Borrower and/or its Affiliates after the Closing Date, any blanket insurance Policy shall specifically allocate to the Projects the amount of coverage from time to time required hereunder and shall otherwise provide the same protection as would a separate Policy insuring only the Projects in compliance with the provisions of Section 8.05(a).

(f)                                    All Policies of insurance provided for or contemplated by Section 8.05(a) shall be primary coverage and, except for the Policy referenced in Section 8.05(a)(v), shall name the Borrower as the insured and the Administrative Agent (on behalf of the Lenders) and its successors and/or assigns as the additional insured (or in the case of property insurance, as the “mortgagee”), as its interests may appear, and in the case of property damage, boiler and machinery, flood, earthquake and terrorism insurance, shall contain a standard non-contributing mortgagee endorsement in favor of the Administrative Agent providing that the loss thereunder shall be payable to the Administrative Agent. The Borrower shall not procure or permit any of its constituent entities to procure any other insurance coverage which would be on the same level of payment as the Policies or would adversely impact in any way the ability of the Administrative Agent or the Borrower to collect any proceeds under any of the Policies. All polices must EXACTLY state the following: Eurohypo AG, New York Branch Its successors and assigns ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇^▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: Director of Portfolio Operations.

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(g)                                 Without limiting the obligations of the Borrower under the foregoing provisions of this Section 8.05, if at any time the Administrative Agent is not in receipt of written evidence that all insurance required hereunder is in full force and effect, the Administrative Agent shall have the right, without notice to the Borrower, to take such action as the Administrative Agent deems necessary to protect its interest in the Projects, including, without limitation, the obtaining of such insurance coverage as the Administrative Agent in its sole discretion deems appropriate and all premiums incurred by the Administrative Agent in connection with such action or in obtaining such insurance and keeping it in effect shall be paid by the Borrower to the Administrative Agent upon demand and until paid shall be secured by the Deed of Trust and shall bear interest at the Post-Default Rate.

(h)                                 In the event of foreclosure of the Deed of Trust or other transfer of title to any Project in extinguishment in whole or in part of the obligations thereunder, all right, title and interest of the Borrower in and to the Policies that are not blanket Policies then in force concerning such Project and all proceeds payable thereunder shall thereupon vest in the purchaser at such foreclosure or the Administrative Agent or other transferee in the event of such other transfer of title.

(i)                                     The Polices shall be issued by financially sound and responsible insurance companies authorized to do business in the state in which the Projects are located and be approved by the Administrative Agent. The insurance companies shall have (i) a general policy and claims paying ability rating of A or better and a financial class of IX or better (and, as to the coverages for terrorism, terrorist acts and earthquake, a general policy and claims paying ability rating of A minus or better and a financial class of VII or better) by A.M. Best Company, Inc.; provided, however, that the Borrower shall be permitted to maintain (at levels other than the primary layer of insurance) up to twenty percent (20%) of the total required all-risk insurance coverage required under subsection 8.05(a)(i) with insurance companies having a general policy and claims paying ability rating of less than A and a financial class of less than IX provided such companies have at least a general policy and claims paying ability rating of A minus or better and a financial class of VII or better, provided such insurance companies are also issuing earthquake coverage to the Borrower or (ii) an investment grade rating for claims paying ability of “AA” by S&P or the equivalent rating by one or more credit rating agencies approved by the Administrative Agent.

8.06                           Real Estate Taxes and Other Charges.

(a)                                  Subject to the provisions of subsection (b) of this Section 8.06, the Borrower shall pay all Real Estate Taxes and Other Charges now or hereafter levied or assessed or imposed against each Project or any part thereof before fine, penalty, interest or cost attaches thereto. Subject to the provisions of subsection (b) of this Section 8.06, upon the request of the Administrative Agent, the Borrower shall furnish to the Administrative Agent receipts for, or other evidence reasonably satisfactory to the Administrative Agent of, the payment of Real Estate Taxes and Other Charges in compliance with this Section 8.06.

(b)                                 After prior written notice to the Administrative Agent, the Borrower, at its own expense, may contest by appropriate legal proceedings or other appropriate actions,

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promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Real Estate Taxes and Other Charges, provided that:

(i)                                     Reserved;

(ii)                                  the Borrower shall pay the Real Estate Taxes and Other Charges under protest unless such proceeding shall suspend the collection of the Real Estate Taxes and Other Charges;

(iii)                               such proceeding shall be permitted under and be conducted in accordance with the applicable provisions of any other instrument governing the contest of Real Estate Taxes or Other Charges to which the Borrower or the Projects is subject and shall not constitute a default thereunder;

(iv)                              such proceeding shall be conducted in accordance with all Applicable Laws;

(v)                                 neither the Projects nor any part thereof or interest therein will, in the reasonable opinion of the Administrative Agent, be in danger of being sold, forfeited, terminated, cancelled or lost during the pendency of the proceeding;

(vi)                              unless paid under protest, the Borrower shall have furnished such security as may be required in the proceeding, or as may be reasonably requested by the Administrative Agent (but in no event less than 110% of the Real Estate Taxes or Other Charges being contested), to insure the payment of any such Real Estate Taxes and Other Charges, together with all interest and penalties thereon; and

(vii)                           the Borrower shall promptly upon final determination thereof or upon the failure of the existence of (ii), (iii), (iv) or (v) above pay the amount of such Real Estate Taxes or Other Charges, together with all costs, interest and penalties.

8.07                           Maintenance of the Projects; Alterations. The Borrower shall:

(i)                                     maintain or cause to be maintained each Project in good condition and repair in a manner consistent with a Class-A office building located in the relevant submarket in which such Project is located in Los Angeles County, California, and make all reasonably necessary repairs or replacements thereto;

(ii)                                  except for work that constitutes required work under Section 8.21, not remove, demolish or structurally alter, or permit or suffer the removal, demolition or structural alteration of, any of the Improvements or make any alteration that may have a Material Adverse Effect or involve a cost in the aggregate for such alteration and all other alterations involving a single work of improvement (or related group of improvements) which is anticipated to exceed the lesser of (A) $5,000,000 or (B) ten percent (10%) of the Appraised Value of such Project, without the prior consent of the Administrative Agent; provided, however, that the Administrative Agent’s consent shall not be required for tenant improvement work performed pursuant to the terms and provisions of an

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Approved Lease which (upon completion of such work) does not adversely affect any structural component of any Improvements, any utility or HVAC system contained in any Improvements or the exterior of any building (excluding signage or other alterations that would not otherwise require the consent of the Administrative Agent under this Section 8.07(ii) in the absence of this proviso) constituting a part of any Improvements at any Project; and provided, further, that the Administrative Agent’s consent shall not be unreasonably withheld for any alterations that are required by Applicable Law and otherwise require the consent of the Administrative Agent under this Section 8.07(ii);

(iii)                               complete promptly and in a good and workmanlike manner any Improvements which may be hereafter constructed and, subject to the terms of the Loan Documents (including, without limitation, Section 10.03), promptly restore (in compliance with Section 10.03) in like manner any portion of the Improvements which may be damaged or destroyed thereon from any cause whatsoever, and pay when due all claims for labor performed and material furnished therefor, subject to the Borrower’s right to contest any such claims (as long as, with respect to any claim for which a mechanic’s lien has been filed, such contested claims have been bonded over to the satisfaction of the Administrative Agent within thirty (30) days of the date of filing);

(iv)                              not commit, or permit, any waste of the Projects; and

(v)                                 not remove any item from the Projects without replacing it with a comparable item of equal quality, value and usefulness, except that the Borrower may sell or dispose of in the ordinary course of the Borrower’s business any property which is obsolete.