TABLE OF CONTENTS

		Page
1.                                        DEFINITIONS; PRINCIPLES OF CONSTRUCTION		1
1.1	Specific Definitions	1
1.2	Index of Other Definitions	13
1.3	Principles of Construction	16
2.                                        GENERAL LOAN TERMS		16
2.1	The Loan	16
2.2	Interest; Monthly Payments	16
2.3	Loan Repayment	17
2.4	Release of Property	20
2.5	Payments and Computations	21
3.                                        CASH MANAGEMENT AND RESERVES		21
3.1	Cash Management Arrangements	21
3.2	Required Repairs; Completion of Required Repairs	22
3.3	Tax and Insurance Subaccount	22
3.4	Ground Rent Subaccount	23
3.5	Bank of America Lease Required Improvements Subaccount	23
3.6	Operating Expense Subaccount	24
3.7	Casualty/Condemnation Subaccount	24
3.8	Security Deposit Subaccount	24
3.9	Cash Collateral Subaccount	25
3.10	Grant of Security Interest; Application of Funds	25
3.11	Property Cash Flow Allocation	26
3.12	Initial Deposits into Reserves	26
3.13	Initial Leasing Reserve	26
3.14	Bank of America Lease Termination and Space Reduction - Letter of Credit	27
4.                                        REPRESENTATIONS AND WARRANTIES		30
4.1	Organization; Special Purpose	30
4.2	Proceedings; Enforceability	30
4.3	No Conflicts	31
4.4	Litigation	31
4.5	Agreements	31
4.6	Title	31
4.7	No Bankruptcy Filing	32
4.8	Full and Accurate Disclosure	32
4.9	Tax Filings	33
4.10	No Plan Assets	33
4.11	Compliance	33
4.12	Contracts	34

 

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4.13	Federal Reserve Regulations; Investment Company Act	34
4.14	Easements; Utilities and Public Access	34
4.15	Physical Condition	34
4.16	Leases	34
4.17	Fraudulent Transfer	35
4.18	Ownership of Borrower	35
4.19	Purchase Options	36
4.20	Management Agreement	36
4.21	Hazardous Substances	36
4.22	Name; Principal Place of Business	37
4.23	Other Debt	37
4.24	Intentionally Omitted	37
4.25	Intentionally Omitted	37
4.26	Ground Lease	37
5.                                        COVENANTS		37
5.1	Existence	37
5.2	Taxes and Other Charges	37
5.3	Access to Property	38
5.4	Repairs; Maintenance and Compliance; Alterations	38
5.5	Performance of Other Agreements	39
5.6	Cooperate in Legal Proceedings	39
5.7	Further Assurances	39
5.8	Environmental Matters	39
5.9	Title to the Property	42
5.10	Leases	42
5.11	Estoppel Statement	44
5.12	Property Management	45
5.13	Special Purpose Bankruptcy Remote Entity	45
5.14	Assumption in Non-Consolidation Opinion	45
5.15	Change In Business or Operation of Property	46
5.16	Debt Cancellation	46
5.17	Affiliate Transactions	46
5.18	Zoning	46
5.19	No Joint Assessment	46
5.20	Principal Place of Business	46
5.21	Change of Name, Identity or Structure	46
5.22	Indebtedness	47
5.23	Licenses	47
5.24	Compliance with Restrictive Covenants, Etc.	47
5.25	ERISA	47
5.26	Transfers	48
5.27	Liens	50
5.28	Dissolution	50
5.29	Expenses	51
5.30	Indemnity	51

 

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5.31	Intentionally Omitted	52
5.32	Intentionally Omitted	52
5.33	Patriot Act Compliance	52
5.34	Ground Lease	53
5.35	Landlord’s Bankruptcy	55
5.36	Borrower’s (Tenant’s) Bankruptcy	55
6.                                        NOTICES AND REPORTING		56
6.1	Notices	56
6.2	Borrower Notices and Deliveries	56
6.3	Financial Reporting	57
7.                                        INSURANCE; CASUALTY; AND CONDEMNATION		59
7.1	Insurance	59
7.2	Casualty	62
7.3	Condemnation	63
7.4	Application of Proceeds or Award	64
8.                                        DEFAULTS		65
8.1	Events of Default	65
8.2	Remedies	67
9.                                        SPECIAL PROVISIONS		69
9.1	Sale of Note and Secondary Market Transaction	69
9.2	Costs and Expenses	72
9.3	Condominium Provisions	72
9.4	Mezzanine Loan	76
9.5	Letters of Credit	78
10.                                  MISCELLANEOUS		78
10.1	Exculpation	78
10.2	Brokers and Financial Advisors	80
10.3	Retention of Servicer	80
10.4	Survival	81
10.5	Lender’s Discretion	81
10.6	Governing Law	81
10.7	Modification, Waiver in Writing	82
10.8	Trial by Jury	83
10.9	Headings/Exhibits	83
10.10	Severability	83
10.11	Preferences	83
10.12	Waiver of Notice	83
10.13	Remedies of Borrower	83

 

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10.14	Prior Agreements	84
10.15	Offsets, Counterclaims and Defenses	84
10.16	Publicity	84
10.17	No Usury	84
10.18	Conflict; Construction of Documents	85
10.19	No Third Party Beneficiaries	85
10.20	Yield Maintenance Premium	85
10.21	Assignment	86
10.22	Borrower’s Designee	86
10.23	Intentionally Omitted	86
10.24	Set-Off	86
10.25	Counterparts	86

 

Schedule 1 - TI and Free Rent

Schedule 2 - Required Repairs

Schedule 3 - Exceptions to Representations and Warranties

Schedule 4 - Organization of Borrower

Schedule 5 - Definition of Special Purpose Bankruptcy Remote Entity

Schedule 8 - Rent Roll

 

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LOAN AGREEMENT

LOAN AGREEMENT dated as of October 26, 2006 (as the same may be modified, supplemented, amended or otherwise changed, this “ Agreement ”) by and between BEHRINGER HARVARD 101 SOUTH TRYON LP , a Delaware limited partnership (“ Borrower ”) and CITIGROUP GLOBAL MARKETS REALTY CORP ., a New York corporation (together with its successors and assigns, “ Lender ”).

1.                                       DEFINITIONS; PRINCIPLES OF CONSTRUCTION

1.1                                Specific Definitions .  The following terms have the meanings set forth below:

Acceptable Letter of Credit :  an irrevocable, unconditional, transferable, clean sight draft letter of credit (either an evergreen letter of credit or one with a stated expiration date at least thirty (30) Business Days after the Stated Maturity Date, or having a stated expiration date not less than one year after its date of issuance, provided that such initially issued Acceptable Letter of Credit, or any renewal thereof, is renewed or substituted by an Acceptable Letter of Credit satisfying all of the conditions of this definition at least thirty (30) days prior to the date on which the Acceptable Letter of Credit, or any renewal thereof, is scheduled to expire) in favor of Lender and entitling Lender to draw thereon in New York, New York, or Chicago, Illinois, issued by a domestic Approved Bank or the U.S. agency or branch of a foreign Approved Bank, and otherwise in form and substance reasonably acceptable to Lender.  If at any time the bank issuing any such Acceptable Letter of Credit shall cease to be an Approved Bank, Lender shall have the right after twenty (20) Business Days notice thereof to draw down the same in full and hold the proceeds of such draw in accordance with the applicable provisions hereof unless the Borrower shall have delivered to Lender a replacement Acceptable Letter of Credit prior to such draw down.

Acceptable Mezzanine Lender :  (i) any Person satisfying the definition of “Qualified Transferee” (or any successor term) under clause (ii) (or such corresponding subsection of any successor term) of the definition of “Qualified Transferee” set forth in the form Intercreditor Agreement attached as Appendix VI to the Standard & Poor’s U.S. CMBS Legal and Structural Finance Criteria published May 1, 2003, as the same may have been amended or modified prior to the date of the Mezzanine Loan, based on the default values for minimum total assets and capital/statutory surplus or shareholders’ equity included in the definition of “Eligibility Requirements” in such publication (or any successor term) or (ii) any other Person that has been approved by Lender acting reasonably, and provided, however, in the case of each of the foregoing clauses (i) and (ii), that if the Mezzanine Loan is made after the occurrence of a Secondary Market Transaction, such Person (1) was identified to the applicable Rating Agencies as the proposed lender in connection with the request for a Rating Comfort Letter referred to in Section 9.4(c), or (2) has otherwise been approved in writing by the applicable Rating Agencies.

Affiliate:   as to any Person, any other Person that, directly or indirectly, is in Control of, is Controlled by or is under common Control with such Person or is a director or officer of such Person or of an Affiliate of such Person.

 

Approved Bank:   shall mean a bank, the long term unsecured debt obligations of which are rated at least “AA” by S&P and its successors, and the equivalent by Fitch and its successors and Moody’s and its successors (unless Lender approves in writing a financial institution other than a bank or a lower rating, in each case in Lender’s sole and absolute discretion).

Approved Leasing Expenses:   actual out-of-pocket expenses incurred by Borrower in leasing space at the Property pursuant to Leases entered into in accordance with the Loan Documents, including brokerage commissions (including those paid pursuant to the Management Agreement) and tenant improvements, which expenses (i) are (A) specifically approved by Lender in connection with approving the applicable Lease, (B) incurred in the ordinary course of business and on market terms and conditions in connection with Leases which do not require Lender’s approval under the Loan Documents, or (C) otherwise approved by Lender, which approval shall not be unreasonably withheld or delayed, and (ii) are substantiated by executed Lease documents and brokerage agreements.

Approved Operating Expenses:   during a Cash Trap Period, operating expenses incurred by Borrower which (i) are within one hundred five percent (105%) of the total amounts included in the Approved Operating Budget for the current calendar month (or for unpaid operating expenses included in the Approved Operating Budget for prior calendar months); provided that, for purposes hereof, operating expenses in such Approved Operating Budget shall be deemed to be increased from the amounts in the applicable Approved Operating Budget to the extent that such increased amounts are at least equal to an increase in operating revenues from the amounts in such Approved Operating Budget or directly relate to variances in occupancy levels or emergencies or unforeseen circumstances, (ii) are for real estate taxes, insurance premiums, electric, gas, oil, water, sewer or other utility service to the Property, (iii) are for property management fees payable to Manager under the Management Agreement, such amounts not to exceed three percent (3%) of the monthly Rents (excluding however any asset management fees payable by Borrower to Manager pursuant to the Management Agreement; provided, however, the foregoing three percent (3%) limitation shall not be deemed to preclude Borrower from paying any such asset management fees pursuant to the terms of the Management Agreement from their own funds) or (iv) have been approved by Lender, acting in a commercially reasonably manner.  Notwithstanding the foregoing, nothing herein shall be deemed to preclude Borrower from paying any asset management fee (over and above the amount set forth above) pursuant to the terms of the Management Agreement from their own funds.

Assumption Fee:   an amount equal to (i) with respect to the first assumption, one-quarter of one percent (0.25%) of the then unpaid Principal and (ii) with respect to any subsequent assumptions after the first assumption, one-half of one percent (0.5%) of the then unpaid Principal.

Available Cash:   as of each Payment Date during the continuance of Cash Trap Period, the amount of Rents, if any, remaining in the Deposit Account after the application of all of the payments required under clauses (i) through (vi) of Section 3.11(a).

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Bank of America:   Bank of America, N.A., a national banking association, or any successor tenant under the Bank of America Lease.

Bank of America Lease:   that certain Lease, dated December 21, 2005, effective as of January 1, 2006, by and between Bank of America, N.A., as tenant, and Trizec Holdings, LLC, a Delaware limited liability company, as landlord.

Bank of America Lease Letter of Credit Amount:   an amount equal to the product of (A) the aggregate amount of square footage in excess of 50,000 square feet vacated by Bank of America; and (B) $7.00, less any Bank of America Lease Termination Payment deposited with Lender.  In no event shall such amount be a negative number.

Bank of America Lease Required Improvements :   the improvements, repairs, replacements and other alterations required to be made by Borrower or reimbursed by Borrower to the tenant under the Bank of America Lease pursuant to Sections 10.6(a), 10.6(b)(1) and 10.6(b)(2) of the Bank of America Lease.

Bank of America Lease Termination Payment:  the amount of any termination fee or penalty or other fee or penalty of any kind made to Borrower in connection with any termination of a portion of the Bank of America Lease in connection with a reduction of the space covered by the Bank of America Lease, whether by right pursuant to the Bank of America Lease, by agreement with Borrower or otherwise.

Behringer Harvard REIT:   Behringer Harvard REIT I, Inc., a Maryland corporation.

Behringer Harvard Operating Partnership:  Behringer Harvard Operating Partnership I LP, a Texas limited partnership.

BHR Partners:   BHR Partners, LLC, a Delaware limited liability company.

Borrower:   has the meaning set forth in the preamble to this Agreement.

Borrower’s Designee:   the Manager or such other Person as Borrower, with the consent of Lender (not to be unreasonably withheld), may from time to time designate as “Borrower’s Designee”; provided that there shall be only one Borrower’s Designee at any time.

Borrower GP:  Behringer Harvard 101 South Tryon GP, LLC, a Delaware limited liability company.

Business Day:   any day other than a Saturday, Sunday or any day on which commercial banks in New York, New York are authorized or required to close.

Calculation Date:   the last day of each calendar quarter during the Term.

Capital Expenses:   expenses that are capital in nature or required under GAAP to be capitalized.

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Cash Trap Period:   shall commence, if, (i) an Event of Default has occurred and is continuing, and shall end if such Event of Default has been cured and no other Event of Default has occurred and is continuing, (ii) as of any Calculation Date, the Debt Service Coverage Ratio is less than 1.10:1, and shall end upon Lender’s determination that the Property has achieved a Debt Service Coverage Ratio of at least 1.10:1 for two consecutive Calculation Dates, or (iii) at any time during the Term, Borrower fails to deliver to Lender either (A) cash or (B) the Bank of America Lease Letter of Credit as required under Section 3.14 hereof, and shall end upon Borrower’s delivery to Lender of either (A) cash or (B) the Bank of America Lease Letter of Credit in accordance with Section 3.14 hereof.

Citigroup Group :  the issuer that is named in the Disclosure Document or registration statement relating to a Secondary Market Transaction (the “ Registration Statement ”), and each of such issuer’s directors, each of its officers who have signed the Registration Statement and each person or entity who controls such issuer or the Lender within the meaning of Section 15 of the Securities Act or Section 30 of the Exchange Act.

Code:   the Internal Revenue Code of 1986, as amended and as it may be further amended from time to time, any successor statutes thereto, and applicable U.S. Department of Treasury regulations issued pursuant thereto in temporary or final form.

Common Elements:   has the meaning set forth in the Condominium Documents.

Control:   with respect to any Person, either (i) ownership directly or indirectly of forty-nine percent (49%) or more of all equity interests in such Person or (ii) the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, through the ownership of voting securities, by contract or otherwise.

Condominium:   any condominium that includes the Property as a part thereof and that was created pursuant to the Condominium Act.

Condominium Act:   North Carolina Condominium Act, Section 47C-1-101 et. seq., as amended.

Condominium Documents:   (a) those certain By-Laws of Trade Tryon Plaza Condominium Association, Inc., (b) those certain Articles of Incorporation of Trade Tryon Plaza Condominium Association, Inc., (c) that certain Declaration of Condominium for Trade Tryon Plaza Condominium, dated December 10, 1988, by Granyette, Inc., a North Carolina corporation, and (d) such other documents, as required by the Condominium Act, relating to the submission of the Property to the provisions of said Condominium Act, as each of the foregoing may be amended, restated, replaced, supplemented or otherwise modified from time to time.

Debt:   the unpaid Principal, all interest accrued and unpaid thereon, any Yield Maintenance Premium and all other sums due to Lender in respect of the Loan or under any Loan Document.

Debt Service:   with respect to any particular period, the scheduled interest payments due under the Note in such period.

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Debt Service Coverage Ratio:   as of any date, the ratio calculated by Lender of (i) the Net Operating Income for the 12-month period ending with the most recently completed calendar month to (ii) the debt service with respect to such period (assuming a constant payment of principal and interest based upon a 30-year amortization schedule).

Default:   the occurrence of any event under any Loan Document which, with the giving of notice or passage of time, or both, would be an Event of Default.

Default Rate:   a rate per annum equal to the lesser of (i) the maximum rate permitted by applicable law, or (ii) five percent (5%) above the Interest Rate (as applicable prior to the occurrence of an Event of Default), compounded monthly.

Defeasance Collateral:   U.S. Obligations, which provide payments (i) on or prior to, but as close as possible to, all Payment Dates and other scheduled payment dates, if any, under the Note after the Defeasance Date and up to and including the Defeasance Maturity Date, and (ii) in amounts equal to or greater than the Scheduled Defeasance Payments.

Defeasance Maturity Date:   means the Permitted Prepayment Date.

Deposit Bank:   JPMorgan Chase Bank, N.A., a national banking corporation, or such other bank or depository selected by Lender in its discretion.

Effective Gross Income:  In-place Base Rent plus Potential Income from Vacant Space, Reimbursement Income, and other income from whatever source, less an adjustment for the greater of (i) market vacancy and (ii) actual physical vacancy (which vacancy shall include any space then leased to bankrupt tenants which are not in full occupancy of their respective leased premises or which have rejected their respective leases or which are not paying rent on a current basis), each as determined by Lender in its sole discretion exercised in good faith (uniformly and consistently applied in the same manner as Lender exercises similar discretion in other loans of this type and nature for comparable properties) in accordance with Lender’s then current underwriting standards for loans of this type and the then current underwriting standards of the Rating Agencies.

Eligible Account:   a separate and identifiable account from all other funds held by the holding institution that is either (i) an account or accounts (A) maintained with a federal or state-chartered depository institution or trust company which complies with the definition of Eligible Institution or (B) as to which Lender has received a Rating Comfort Letter from each of the applicable Rating Agencies with respect to holding funds in such account, or (ii) a segregated trust account or accounts maintained with the corporate trust department of a federal depository institution or state chartered depository institution subject to regulations regarding fiduciary funds on deposit similar to Title 12 of the Code of Federal Regulations §9.10(b), having in either case corporate trust powers, acting in its fiduciary capacity, and a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by federal and state authorities.  An Eligible Account will not be evidenced by a certificate of deposit, passbook or other instrument.

Eligible Institution:  a depository institution insured by the Federal Deposit Insurance Corporation the short term unsecured debt obligations or commercial paper of which

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are rated at least A-1 by S&P, P-1 by Moody’s and F-1+ by Fitch, in the case of accounts in which funds are held for thirty (30) days or less or, in the case of Letters of Credit or accounts in which funds are held for more than thirty (30) days, the long term unsecured debt obligations of which are rated at least “AA” by Fitch and S&P and “Aa2” by Moody’s.

ERISA:   the Employment Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder.

ERISA Affiliate:   all members of a controlled group of corporations and all trades and business (whether or not incorporated) under common control and all other entities which, together with Borrower, are treated as a single employer under any or all of Section 414(b), (c), (m) or (o) of the Code.

GAAP:   generally accepted accounting principles in the United States of America as of the date of the applicable financial report.

Governmental Authority:   any court, board, agency, commission, office or authority of any nature whatsoever for any governmental unit (federal, state, county, district, municipal, city or otherwise) now or hereafter in existence.

Ground Rent :   all rent and any and all other charges due and payable under the Ground Lease.

Guarantor:  Behringer Harvard REIT or any other entity guaranteeing any payment or performance obligation of Borrower.

Harvard Fund I :  individually or collectively, Behringer Harvard Short-Term Opportunity Funds I, L.P., a Texas limited partnership and/or Behringer Harvard Mid-Term Value Enhancement Fund I, L.P. a Texas limited partnership and/or Behringer Harvard Strategic Opportunity Fund LLP, a Texas limited partnership, and/or any other fund for which Behringer Harvard Holdings, LLC, or an Affiliate of it under its Control, serves as general partner, manager or advisor.

Harvard REIT :  individually or collectively, the Behringer Harvard Operating Partnership and/or Behringer Harvard REIT and/or Behringer Harvard Opportunity REIT I, Inc., a Maryland corporation ( “Behringer Harvard Opportunity REIT” ), and/or any other fund for which Behringer Harvard Holdings, LLC, or an Affiliate of it under its Control, serves as general partner, manager or advisor.

HPT :  HPT Management Services LP, a Texas limited partnership.

In-place Base Rent:   fixed base rent paid by tenants that have occupied the space covered by their respective leases and have commenced paying rent and the free rent or rent abatement periods under such leases have expired, and there are no defaults under such leases (nor does there exist any event or condition, which with the passage of time or the giving of notice, or both, could result in such a default).

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Interest Period:   (i) the period from the date hereof through the first day thereafter that is the 5 th  day of a calendar month and (ii) each period thereafter from the 6 th  day of each calendar month through the 5 th  day of the following calendar month; except that the Interest Period, if any, that would otherwise commence before and end after the Maturity Date shall end on the Maturity Date.  Notwithstanding the foregoing, if Lender exercises its right to change the Payment Date to a New Payment Date in accordance with Section 2.2.4, then from and after such election, each Interest Period shall be the period from the New Payment Date in each calendar month through the day in the next succeeding calendar month immediately preceding the New Payment Date in such calendar month.

Interest Rate:   a rate of interest equal to 5.433% per annum (or, when applicable pursuant to this Agreement or any other Loan Document, the Default Rate).

Key Principal:   Robert M. Behringer, an individual.

Leases:   all leases and other agreements or arrangements heretofore or hereafter entered into providing for the use, enjoyment or occupancy of, or the conduct of any activity upon or in, the Property or the Improvements, including any guarantees, extensions, renewals, modifications or amendments thereof and all additional remainders, reversions and other rights and estates appurtenant thereunder.

Legal Requirements: statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions of Governmental Authorities affecting Borrower, any Loan Document or all or part of the Property or the construction, ownership, use, alteration or operation thereof, whether now or hereafter enacted and in force, and all permits, licenses and authorizations and regulations relating thereto, and all covenants, agreements, restrictions and encumbrances contained in any instrument, either of record or known to Borrower, at any time in force affecting all or part of the Property.

Letter of Credit : shall mean any Acceptable Letter of Credit or other letter of credit given to Lender in lieu of any reserve required hereunder.

Lien : any mortgage, deed of trust, lien (statutory or otherwise), pledge, hypothecation, easement, restrictive covenant, preference, assignment (intended as security), security interest or any other encumbrance, charge or transfer (intended as security) of, or any agreement to enter into or create any of the foregoing, on or affecting all or any part of the Property or any interest therein, or any direct or indirect interest in Borrower, including any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, the filing of any financing statement, and mechanic’s, materialmen’s and other similar liens and encumbrances.

Loan Documents:   this Agreement and all other documents, agreements and instruments now or hereafter evidencing or securing the Loan or pursuant to which any Person incurs, has incurred or assumes any obligation to or for the benefit of Lender, or makes any certification, representation or warranty to Lender in connection with the Loan, including the following, each of which is dated as of the date hereof:  (i) the Promissory Note made by Borrower to Lender in the aggregate principal amount equal to the Loan (the “ Note ”), (ii) the

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Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing made by Borrower to a trustee, for the benefit of Lender which covers the Property (the “ Mortgage ” or the “ Security Instrument ”), (iii) the Assignment of Leases and Rents from Borrower to Lender (the “ Assignment of Leases ”), (iv) the Assignment of Agreements, Licenses, Permits and Contracts from Borrower to Lender, (v) the Clearing Account Agreement among Borrower, Lender and the Clearing Bank (the “ Clearing Account Agreements ”), (vi) the Deposit Account Agreement among Borrower, Lender, Servicer and the Deposit Bank (the “ Deposit Account Agreement ”), (vii) the Guaranty of Recourse Obligations made by Guarantor for the benefit of Lender, and (viii) the Consent and Subordination of Manager made by Manager and consented to by Borrower (the “ Consent and Subordination ”); as each of the foregoing may be (and each of the foregoing defined terms shall refer to such documents as they may be) amended, restated, replaced, supplemented or otherwise modified from time to time (including pursuant to Section 9.1.7).

Management Agreement:   the Third Amended and Restated Property Management and Leasing Agreement, between Behringer Harvard REIT, Behringer Harvard Operating Partnership and HPT, as partially assigned from Behringer Harvard Operating Partnership to Borrower by that certain Partial Assignment and Assumption of Amended and Restated Property Management Agreement, dated as of even date with this Agreement, pursuant to which Manager is to manage the Property, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time in accordance with Section 5.12.

Manager:   HPT or any successor, assignee or replacement manager appointed by Borrower in accordance with Section 5.12.

Material Alteration: any alteration affecting structural elements of the Property the cost of which exceeds $250,000; provided, however, that in no event shall (i) any Required Repairs (if any), (ii) any tenant improvement work performed pursuant to any Lease existing on the date hereof or entered into hereafter in accordance with the provisions of this Agreement, or (iii) alterations performed as part of a Restoration, constitute a Material Alteration.

Material Lease:   all Leases which individually or in the aggregate with respect to the same tenant and its Affiliates (i) cover more than 21,000 square feet of the Improvements or (ii)  have a gross annual rent of more than ten percent (10%) of the total annual Rents or (iii) demise at least one full floor of the Improvements.

Maturity Date:   the date on which the final payment of principal of the Note (or any replacement promissory note issued in connection with a Defeasance Event, if applicable) becomes due and payable as therein provided, whether at the Stated Maturity Date, the Defeasance Maturity Date, by declaration of acceleration, or otherwise.

Minor Lease: any Lease that is not a Material Lease.

Net Operating Income:   for any period, the underwritten net cash flow of the Property determined by Lender in its sole discretion exercised in good faith (uniformly and consistently applied in the same manner as Lender exercises similar discretion in other loans of this type and nature for comparable properties) in accordance with Lender’s then current

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underwriting standards for loans of this type and the then current underwriting standards of the Rating Agencies (including adjustments for a management fee equal to the greater of the management fees paid under the Management Agreement during such period or three percent (3%) of gross revenues, market vacancy, bankrupt tenants which are not in full occupancy of their respective leased premises or which have rejected their respective leases or which are not paying rent on a current basis, leasing costs and capital items).

Officer’s Certificate:   a certificate delivered to Lender by Borrower, which is signed by the manager or a senior executive officer of Borrower.

Other Charges:   all Ground Rents, maintenance charges, impositions other than Taxes, and any other charges, including vault charges and license fees for the use of vaults, chutes and similar areas adjoining the Property, now or hereafter levied or assessed or imposed against the Property or any part thereof.

Payment Date:   the 6 th  day of each calendar month or, upon Lender’s exercise of its right to change the Payment Date in accordance with Section 2.2.4, the New Payment Date (in either case, if such day is not a Business Day, the Payment Date shall be the first Business Day thereafter).  The first Payment Date hereunder shall be December 6, 2006.

Permitted Encumbrances: (i) the Liens created by the Loan Documents, (ii) all Liens and other matters disclosed in the Title Insurance Policy, (iii) Liens, if any, for Taxes or Other Charges not yet due and payable and not delinquent, (iv) any workers’, mechanics’ or other similar Liens on the Property provided that any such Lien is bonded or discharged within 30 days after a Borrower first receives notice of such Lien, (v) such other title and survey exceptions as Lender approves in writing in Lender’s discretion, and (vi) Liens securing a Mezzanine Loan in accordance with Section 9.4.

Permitted Transfers:

(i) a Lease entered into in accordance with the Loan Documents;

(ii) a Permitted Encumbrance;

(iii) a Transfer and Assumption pursuant to Section 5.26.3;

(iv) provided that no Event of Default shall then exist, a Transfer of a direct or indirect interest in Borrower to any Person (including the Transfer or issuance of publicly traded shares or of operating partnership units in the Harvard REIT, Behringer Harvard Opportunity REIT, Harvard Fund I or the Behringer Harvard Operating Partnership, which shall be permitted whether or not an Event of Default shall exist) provided that (A) such Transfer shall not (x) cause the transferee (other than Key Principal), together with its Affiliates, to acquire Control of Borrower or to increase its direct or indirect interest in Borrower to an amount which equals or exceeds forty-nine percent (49%) or (y) result in Borrower no longer being Controlled by Key Principal, (B) Borrower shall give Lender notice of such Transfer together with copies of all instruments effecting such Transfer not less than ten (10) days prior to the date of such Transfer (other than with respect to Transfers of “unit interests” in Harvard Fund I), and (C) the legal and financial structure of Borrower and its member(s) or partners, as applicable, and the special

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purpose nature and bankruptcy remoteness of Borrower and its member(s) or partners, as applicable, after such Transfer, shall satisfy Lender’s then current applicable underwriting criteria and requirements;

(v) provided that no Event of Default shall then exist, a Transfer of a direct or indirect interest in a Borrower related to or in connection with the estate planning of such transferor to (1) the spouse, children or grandchildren of such transferor (and/or any spouse of a child or grandchild), or any other immediate family member of such transferor, or (2) a trust established for the benefit of any such parties, provided that (A) such Transfer shall not cause a change in the Control of Borrower, (B) such Transfer shall not result in a change of the day to day management and operations of the Property, (C) Borrower shall give Lender notice of such Transfer together with copies of all instruments effecting such Transfer not less than ten (10) days after the date of such Transfer and (D) the legal and financial structure of Borrower, and its member(s) or partners, as applicable, and the special purpose nature and bankruptcy remoteness of Borrower and its member(s) or partners, as applicable, after such Transfer, shall satisfy Lender’s then current applicable underwriting criteria and requirements; or

(vi) a Transfer of a direct or indirect interest in Borrower that occurs by devise or bequest or by operation of law upon the death of a natural person that was the holder of such interest to a member of the immediate family of such interest holder or a trust established for the benefit of such immediate family member, provided that (A) no such Transfer shall result in a change of the day to day operations of the Property, (B) Borrower shall give Lender notice of such Transfer together with copies of all instruments effecting such Transfer not less than 30 days after the date of such Transfer, (C) Borrower shall continue to be a Special Purpose Bankruptcy Remote Entity, (D) if any such Transfer would result in a change of Control of Borrower and occurs prior to the occurrence of a Secondary Market Transaction, such Transfer is approved by Lender in writing within thirty (30) days after any such Transfer, and (E) if any such Transfer would result in a change of Control of Borrower and occurs after the occurrence of a Secondary Market Transaction, Borrower, at Borrower’s sole cost and expense, shall, within thirty (30) days after any such Transfer, (a) deliver (or cause to be delivered) (x) a Rating Comfort Letter to Lender, and (y) a substantive non-consolidation opinion to Lender and the Rating Agencies with respect to such Borrower and such transferee in form and substance satisfactory to Lender and the Rating Agencies, (b) obtain the prior written consent of Lender which shall not be unreasonably withheld, and (c) reimburse Lender for all reasonable expenses incurred by Lender in connection with such Transfer.

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

Plan:  (i) an employee benefit or other plan established or maintained by a Borrower or any ERISA Affiliate or to which Borrower or any ERISA Affiliate makes or is obligated to make contributions and (ii) which is covered by Title IV of ERISA or Section 302 of ERISA or Section 412 of the Code.

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Potential Income from Vacant Space:  an amount equal to the total leaseable square footage at the Property that is vacant on the date of determination multiplied by the market rent on a square foot basis as determined by an appraiser.

Property:   the parcel of real property and Improvements thereon owned or leased by Borrower and encumbered by the Mortgage (including, without limitation, the condominium units owned by Borrower and the leasehold estate owned by Borrower in such real property and Improvements); together with all rights pertaining to such real property and Improvements, and all other collateral for the Loan as more particularly described in the granting clauses of the Mortgage and referred to therein as the “Property”.  The Property is commonly known as Bank of America Plaza, Charlotte, North Carolina.

Qualifying Sub-Manager :   a sub-manager of the Property which (a) is a reputable management company having at least five (5) years’ experience in the management of commercial properties with similar uses as the Property and in the jurisdiction in which the Property is located, (b) has, for at least five (5) years prior to its engagement as sub-manager, managed at least (5) properties of the same property type as the Property, (c) at the time of its engagement as sub-manager manages at least 1,000,000 square feet of office space, and (d) is not the subject of a bankruptcy or similar insolvency proceeding.

Rating Agency:   each of Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. (“ S&P ”), Moody’s Investors Service, Inc. (“ Moody’s ”), and Fitch, Inc., a division of Fitch Ratings Ltd. (“ Fitch ”), or any other nationally-recognized statistical rating organization to the extent any of the foregoing have been engaged by Lender or its designee in connection with or in anticipation of any Secondary Market Transaction.

Rating Comfort Letter:   a letter issued by each of the applicable Rating Agencies which confirms that the taking of the action referenced to therein will not result in any qualification, withdrawal or downgrading of any existing ratings of Securities created in a Secondary Market Transaction.

Reimbursement Income:  income recovered from tenants as a result of reimbursements for maintenance and utility charges, escalations, taxes, insurance premiums, service fees or charges, license fees, and other required pass-throughs.

Release Date: the earlier to occur of (i) the thirty-sixth (36 th ) Payment Date of the Term and (ii) the date that is two (2) years from the “startup day” (within the meaning of Section 860G(a)(9) of the Code) of the REMIC Trust established in connection with a Securitization involving this Loan.

REMIC Trust: a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code that holds the Note.

Rents:  all rents, rent equivalents, moneys payable as damages (including payments by reason of the rejection of a Lease in a bankruptcy proceeding) or in lieu of rent or rent equivalents, royalties (including all oil and gas or other mineral royalties and bonuses), income, fees, receivables, receipts, revenues, deposits (including security, utility and other deposits), accounts, cash, issues, profits, charges for services rendered, and other payment and

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consideration of whatever form or nature received by or paid to or for the account of or benefit of Borrower, Manager or any of their agents or employees (other than fees paid under the Management Agreements and salaries paid to employees) from any and all sources arising from or attributable to the Property and the Improvements, including all receivables, customer obligations, installment payment obligations and other obligations now existing or hereafter arising or created out of the sale, lease, sublease, license, concession or other grant of the right of the use and occupancy of the Property or rendering of services by a Borrower, Manager or any of their agents or employees and proceeds, if any, from business interruption or other loss of income insurance.

Scheduled Defeasance Payments:   the Monthly Debt Service Payment Amount required under the Note for all Payment Dates occurring after the Defeasance Date but prior to the Defeasance Maturity Date and the outstanding Principal balance on the Note as of the Defeasance Maturity Date and all accrued and unpaid interest as of such date.

Security Agreement: a security agreement in form and substance that would be satisfactory to Lender (in Lender’s sole but good faith discretion) pursuant to which Borrower grants Lender a perfected, first priority security interest in the Defeasance Collateral Account and the Defeasance Collateral.

Servicer:   a servicer selected by Lender to service the Loan, including any “master servicer” or “special servicer” appointed under the terms of any pooling and servicing agreement or similar agreement entered into as a result of a Secondary Market Transaction.

State: the state in which the Property is located.

Stated Maturity Date:   November 6, 2016, as such date may be changed in accordance with Section 2.2.4.

Sub-Manager :   Trammel Crow or any successor, assignee or replacement sub-manager appointed by Borrower in accordance with Section 5.12.

Sub-Management Agreement:   the Subcontract for Management Services, between HPT and Trammel Crow, pursuant to which Trammel Crow is to sub-manage the Property, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time in accordance with Section 5.12.

Taxes:   all real estate and personal property taxes, assessments, water rates or sewer rents, maintenance charges, impositions, vault charges and license fees, now or hereafter levied or assessed or imposed against all or part of the Property.

Term:   the entire term of this Agreement, which shall expire upon repayment in full of the Debt and full performance of each and every obligation to be performed by Borrower pursuant to the Loan Documents (other than surviving indemnity obligations with respect to matters as to which no claim for indemnification is then pending).

Title Insurance Policy:   the ALTA mortgagee title insurance policy in the form acceptable to Lender issued with respect to the Property and insuring the Lien of the Mortgage.

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Trammel Crow :   Trammel Crow Services, Inc., a Delaware corporation.

Transfer:   any sale, conveyance, transfer, lease or assignment, or the entry into any agreement to sell, convey, transfer, lease or assign, whether by law or otherwise, of, on, in or affecting (i) all or part of the Property (including any legal or beneficial direct or indirect interest therein) or (ii) any direct or indirect interest in Borrower (including any profit interest).

UCC or Uniform Commercial Code:   the Uniform Commercial Code as in effect in the State or the state in which any of the Cash Management Accounts are located, as the case may be.

Underwriter Group :  each person who controls any underwriter, syndicate member or placement agent retained by Lender or its issuer in connection with a Secondary Market Transaction, within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act.

U.S. Obligations:   obligations that are “government securities” within the meaning of Section 2(a)(16) of the Investment Company Act of 1940, as amended, and, to the extent acceptable to the applicable Rating Agencies, other non-callable government securities satisfying the REMIC Provisions (hereinafter defined), in each case to the extent such obligations are not subject to prepayment, call or early redemption.  As used herein, “ REMIC Provisions ” mean provisions of the federal income tax law relating to real estate mortgage investment conduits, which appear at Sections 860A through 860G of Subchapter M of Chapter 1 of Subtitle A of the Code, and related provisions, and temporary and final regulations and, to the extent not inconsistent with such temporary and final regulations, proposed regulations, and published rulings, notices and announcements promulgated thereunder, as the foregoing may be in effect from time to time.

Welfare Plan:   an employee welfare benefit plan, as defined in Section 3(1) of ERISA.

Yield Maintenance Premium:   an amount which, when added to the outstanding Principal, would be sufficient to purchase U.S. Obligations which provide payments (a) on or prior to, but as close as possible to, all successive scheduled payment dates under this Agreement through the Stated Maturity Date and (b) in amounts equal to the Monthly Debt Service Payment Amount required under this Agreement through the Stated Maturity Date together with the outstanding principal balance of the Note as of the Stated Maturity Date assuming all such Monthly Debt Service Payments are made (including any servicing costs associated therewith).  In no event shall the Yield Maintenance Premium be less than zero.

1.2                                Index of Other Definitions .  The following terms are defined in the sections or Loan Documents indicated below:

“Annual Budget” - 6.3.5

“Applicable Taxes” - 2.2.3

“Approved Annual Budget” - 6.3.5

“Approved Capital Budget” - 6.3.5

“Approved Operating Budget” - 6.3.5

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“Association” – 9.3

“Award” - 7.3.2

“Bank of America Lease Draw Requirements” – 3.14

“Bank of America Lease Letter of Credit” – 3.14

“Bank of America Lease Required Improvements Subaccount” – 3.5

“Bank of America Lease Subaccount” – 3.14

“Bankruptcy Act” – 5.35

“Bankruptcy Proceeding” - 4.7

“Behringer Harvard Opportunity REIT” – 1.1 (Definition of Harvard REIT)

“Borrower’s Recourse Liabilities” - 10.1

“Cash Collateral Subaccount” - 3.9

“Cash Management Accounts” - 3.10

“Casualty” - 7.2.1

“Casualty/Condemnation Prepayment” - 2.3.2

“Casualty/Condemnation Subaccount” - 3.7

“Clearing Account” - 3.1

“Clearing Account Agreement” - 1.1 (Definition of Loan Documents)

“Clearing Bank” - 3.1

“Condemnation” - 7.3.1

“Condominium Default” – 9.3

“Consent and Subordination” - 1.1 (Definition of Loan Documents)

“Defeasance Collateral Account” - 2.3.3

“Defeasance Date” - 2.3.3

“Defeasance Event” - 2.3.3

“Deposit Account” - 3.1

“Deposit Account Agreement” - 1.1 (Definition of Loan Documents)

“Disclosure Document” - 9.1.2

“Easements” - 4.14

“Election” – 5.35

“Endorsement” – 5.26.3

“Environmental Laws” - 4.21

“Equipment” - Mortgage

“Event of Default” - 8.1

“Exchange Act” - 9.1.2

“Fitch” - 1.1 (Definition of Rating Agency)

“Ground Lease” - Mortgage

“Ground Rent Subaccount” – 3.4

“Hazardous Substances” -  4.21

“Improvements” - Mortgage

“Indemnified Liabilities” - 5.30

“Indemnified Party” - 5.30

“Independent Director” - Schedule 5

“Insolvency Action” – 10.1

“Insurance Premiums” - 7.1.2

“Insured Casualty” - 7.2.2

“Intercreditor Agreement” – 9.4

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“Late Payment Charge” - 2.5.3

“Lender’s Consultant” - 5.8.1

“Lender’s Losses” – 10.1

“Licenses” - 4.11

“Loan” - 2.1

“Mezzanine Borrower” – 9.4

“Mezzanine Lender” – 9.4

“Mezzanine Loan” – 9.4

“Monthly Debt Service Payment Amount” - 2.2.1

“Moody’s” - 1.1 (Definition of Rating Agency)

“Mortgage” - 1.1 (Definition of Loan Documents)

“New Payment Date” - 2.2.4

“Note” - 1.1 (Definition of Loan Documents)

“Notice” - 6.1

“OFAC” – 5.33

“Operating Expense Subaccount” - 3.6

“Permitted Indebtedness” - 5.22

“Permitted Investments” - Deposit Account Agreement

“Permitted Prepayment Date” - 2.3.4

“Policies” - 7.1.2

“Principal” - 2.1

“Proceeds” - 7.2.2

“Proposed Material Lease” - 5.10.2

“Provided Information” - 9.1.1

“Qualified Carrier” - 7.1.1

“Remedial Work” - 5.8.2

“REMIC Provisions” - 1.1 (Definition of U.S. Obligations)

“Rent Roll” - 4.16

“Required Repairs” – 3.2

“Restoration” - 7.4.1

“S&P” - 1.1 (Definition of Rating Agency)

“Secondary Market Transaction” - 9.1.1

“Securities” - 9.1.1

“Securities Act” - 9.1.2

“Security Deposit Subaccount” - 3.8

“Significant Casualty” - 7.2.2

“Special Purpose Bankruptcy Remote Entity” - 5.13

“Springing Recourse Event” - 10.1

“Subaccounts” - 3.1

“Successor Borrower” - 2.3.3

“Tax and Insurance Subaccount” - 3.3

“Tenant Improvement Funds” – 3.13

“Tenant Improvement Reserve Subaccount” – 3.13

“Third Party Report” – 9.1.3

“TI Leases” – 3.13

“Toxic Mold” - 4.21

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“Transfer and Assumption” - 5.26.3

“Transferee Borrower” - 5.26.3

1.3                                Principles of Construction .  Unless otherwise specified, (i) all references to sections and schedules are to those in this Agreement, (ii) the words “hereof,” “herein” and “hereunder” and words of similar import refer to this Agreement as a whole and not to any particular provision, (iii) all definitions are equally applicable to the singular and plural forms of the terms defined, (iv) the word “including” means “including but not limited to,” and (v) accounting terms not specifically defined herein shall be construed in accordance with GAAP.

2.                                       GENERAL LOAN TERMS

2.1                                The Loan .  Subject to and upon the terms and conditions of this Agreement, Lender agrees to make a loan to Borrower (the “ Loan ”) in the maximum principal amount of up to $150,000,000 (the “ Principal ”).  The Loan shall mature on the Stated Maturity Date or, if a Defeasance Event has occurred in accordance with Section 2.3.3 hereof, on the Defeasance Maturity Date.  Borrower acknowledges receipt of the Principal, the proceeds of which are being and shall be used to (i) acquire the Property, (ii) fund certain of the Subaccounts and (iii) pay transaction costs.  Any excess proceeds may be used for any lawful purpose. No amount repaid in respect of the Loan may be reborrowed.

2.2                                Interest; Monthly Payments .

2.2.1                      Generally .  From and after the date hereof, interest on the unpaid Principal shall accrue at the Interest Rate and be payable as hereinafter provided.  On the date hereof, Borrower shall pay interest only on the unpaid Principal from the date hereof through and including November 5, 2006.  On December 6, 2006 and each Payment Date thereafter through and including the Maturity Date, Borrower shall pay interest on the unpaid Principal accrued at the Interest Rate during the Interest Period immediately preceding such Payment Date (the “ Monthly Debt Service Payment Amount ”).  The balance of the Principal together with all accrued and unpaid interest thereon shall be due and payable on the Maturity Date.  If the Loan is repaid on any date other than on a Payment Date (whether prior to or after the Stated Maturity Date), Borrower shall also pay interest that would have accrued on such repaid Principal to but not including the next Payment Date.

2.2.2                      Default Rate .  After the occurrence and during the continuance of an Event of Default, the entire unpaid Debt shall bear interest at the Default Rate, and shall be payable upon demand from time to time, to the extent permitted by applicable law.

2.2.3                      Taxes .  Any and all payments by Borrower hereunder and under the other Loan Documents shall be made free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding taxes imposed on Lender’s income, and franchise taxes imposed on Lender by the law or regulation of any Governmental Authority (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to in this Section 2.2.3 as “ Applicable Taxes ”).  If Borrower shall be required by law to deduct any

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Applicable Taxes from or in respect of any sum payable hereunder to Lender, the following shall apply:  (i) the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 2.2.3), Lender receives an amount equal to the sum it would have received had no such deductions been made, (ii) Borrower shall make such deductions and (iii) Borrower shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law.  Payments pursuant to this Section 2.2.3 shall be made within ten days after the date Lender makes written demand therefor.  If the amounts payable hereunder relate to Applicable Taxes which are not of general application to lending institutions making secured mortgage loans at such time, Borrower shall have the option to prepay the Loan in full without any Yield Maintenance Premium unless Lender, at its option, elects not to require Borrower to pay such Applicable Taxes pursuant to this Section 2.2.3.  Notwithstanding the foregoing, if the Loan is transferred to a transferee which is organized under the laws of any jurisdiction other than the United States of America or any state thereof, the transferor shall cause such transferee, concurrently with the effectiveness of such transfer, to furnish to the transferor and Borrower either a United States Internal Revenue Service Form 4224 or United States Internal Revenue Service Form 1001 (wherein such transferee claims entitlement to complete exemption from United States federal withholding tax on all interest payments hereunder); provided, however, that in the event that the transferor fails to cause the transferee to furnish either such Form, Borrower shall deduct any Applicable Taxes to the extent required by law and payments shall be made net of any Applicable Taxes without regard to the provisions of clause (i) of the second sentence of this Section 2.2.3.

2.2.4                      New Payment Date .  Lender shall have the right, to be exercised not more than once during the term of the Loan, to change the Payment Date to a date other than the eleventh day of each month (a “ New Payment Date ”), on 30 days’ written notice to Borrower; provided, however, that any such change in the Payment Date: (i) shall not modify the amount of regularly scheduled monthly interest payments, except that the first payment of interest payable on the New Payment Date shall be accompanied by interest at the interest rate herein provided for the period from the Payment Date in the month in which the New Payment Date first occurs to the New Payment Date, and (ii) shall extend the Stated Maturity Date to the New Payment Date occurring in the month set forth in the definition of Stated Maturity Date.

2.3                                Loan Repayment .

2.3.1                      Repayment .  Borrower shall repay the entire outstanding principal balance of the Note in full on the Maturity Date, together with interest thereon to (but excluding) the date of repayment and any other amounts due and owing under the Loan Documents.  Borrower shall have no right to prepay or defease all or any portion of the Principal except in accordance with Section 2.2.3, Section 2.3.2, Section 2.3.3, Section 2.3.4, Section 2.4 and Section 7.4.2 hereof.  Except during the continuance of an Event of Default, all proceeds of any repayment, including any prepayments of the Loan, shall be applied by Lender as follows in the following order of priority:  First , accrued and unpaid interest at the Interest Rate; Second , to Principal; and Third , to any other amounts then due and owing under the Loan Documents.  If prior to the Stated Maturity Date the Debt is accelerated by reason of an Event of Default, then Lender shall be entitled to receive, in addition to the unpaid Principal and accrued interest and other sums due under the Loan Documents, an amount equal to the Yield Maintenance Premium

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applicable to such Principal so accelerated.  During the continuance of an Event of Default, all proceeds of repayment, including any payment or recovery on the Property (whether through foreclosure, deed-in-lieu of foreclosure, or otherwise) shall, unless otherwise provided in the Loan Documents, be applied in such order and in such manner as Lender shall elect in Lender’s discretion.

2.3.2                      Mandatory Prepayments .  The Loan is subject to mandatory prepayment in certain instances of Insured Casualty or Condemnation (each a “ Casualty/Condemnation Prepayment ”), in the manner and to the extent set forth in Section 7.4.2.  Each Casualty/Condemnation Prepayment, after deducting Lender’s costs and expenses (including reasonable attorneys’ fees and expenses) in connection with the settlement or collection of the Proceeds or Award, shall be applied in the same manner as repayments under Section 2.3.1, and if such Casualty/Condemnation Payment is made on any date other than a Payment Date, then such Casualty/Condemnation Payment shall include interest that would have accrued on the Principal prepaid to but not including the next Payment Date.  Provided that no Event of Default is continuing, any such mandatory prepayment under this Section 2.3.2 shall be without the payment of the Yield Maintenance Premium.  Notwithstanding anything to the contrary contained herein, each Casualty/Condemnation Prepayment shall be applied in inverse order of maturity and shall not extend or postpone the due dates of the monthly installments due under the Note or this Agreement, or change the amounts of such installments.  In addition, and notwithstanding anything to the contrary contained herein or in any other Loan Document, provided no Event of Default is continuing, no Yield Maintenance Premium shall be payable in connection with any prepayment of the Debt required by Lender under Sections 5 and 6 of the Mortgage.

2.3.3                      Defeasance .

(a)                                   Conditions to Defeasance .  Provided no Event of Default shall be continuing, Borrower shall have the right on any Payment Date after the Release Date and prior to the Permitted Prepayment Date to voluntarily defease the entire amount of the Principal and obtain a release of the Lien of the Mortgage by providing Lender with the Defeasance Collateral (a “ Defeasance Event ”), subject to the satisfaction of the following conditions precedent:

(1)                                   Borrower shall give Lender not less than thirty (30) days prior written notice specifying a Payment Date (the “ Defeasance Date ”) on which the Defeasance Event is to occur.

(2)                                   Borrower shall pay to Lender (A) all payments of Principal and interest due on the Loan to and including the Defeasance Date and (B) all other sums, then due under the Note, this Agreement and the other Loan Documents;

(3)                                   Borrower shall deposit the Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of subsections (b) and (c) of this Section 2.3.3;

(4)                                   Borrower shall execute and deliver to Lender a Security Agreement in respect of the Defeasance Collateral Account and the Defeasance Collateral;

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(5)                                   Borrower shall deliver to Lender an opinion of counsel for Borrower that is standard in commercial lending transactions and subject only to customary qualifications, assumptions and exceptions opining, among other things, that (i) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Defeasance Collateral, (ii) if a securitization has occurred, the REMIC Trust formed pursuant to such securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code as a result of a Defeasance Event pursuant to this Section 2.3.3, (iii) the Defeasance Event will not result in a significant modification and will not be an exchange of the Note for purposes of Section 1001 of the Code and the Treasury Regulations thereunder, (iv) delivery of the Defeasance Collateral and the grant of a security interest therein to Lender will not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law and (v) a non-consolidation opinion with respect to the Successor Borrower;

(6)                                   Borrower shall deliver to Lender a Rating Comfort Letter as to the Defeasance Event;

(7)                                   Borrower shall deliver an Officer’s Certificate certifying that the requirements set forth in this Section 2.3.3 have been satisfied;

(8)                                   Borrower shall deliver a certificate of a “big four” or other nationally recognized public accounting firm acceptable to Lender certifying that the Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;

(9)                                   Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and

(10)                             Borrower shall pay all costs and expenses of Lender incurred in connection with the Defeasance Event, including Lender’s reasonable attorneys’ fees and expenses and Rating Agency fees and expenses.

(b)                                  Defeasance Collateral Account .  On or before the date on which Borrower delivers the Defeasance Collateral, Borrower shall open at any Eligible Institution the defeasance collateral account (the “ Defeasance Collateral Account ”) which shall at all times be an Eligible Account.  The Defeasance Collateral Account shall contain only (i) Defeasance Collateral, and (ii) cash from interest and principal paid on the Defeasance Collateral.  All cash from interest and principal payments paid on the Defeasance Collateral shall be paid over to Lender on each Payment Date and applied first to accrued and unpaid interest and then to Principal.  Any cash from interest and principal paid on the Defeasance Collateral not needed to pay accrued and unpaid interest or Principal shall be retained in the Defeasance Collateral Account as additional collateral for the Loan.  Borrower shall cause the Eligible Institution at which the Defeasance Collateral is deposited to enter an agreement with Borrower and Lender, satisfactory to Lender in its sole discretion, pursuant to which such Eligible Institution shall agree to hold and distribute the Defeasance Collateral in accordance with this Agreement.  The Successor Borrower shall be the owner of the Defeasance Collateral Account and shall report all

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income accrued on Defeasance Collateral for federal, state and local income tax purposes in its income tax return.  Borrower shall prepay all cost and expenses associated with opening and maintaining the Defeasance Collateral Account.  Lender shall not in any way be liable by reason of any insufficiency in the Defeasance Collateral Account.

(c)                                   Successor Borrower .  In connection with a Defeasance Event under this Section 2.3.3, Borrower shall, if required by the Rating Agencies or if Borrower elects to do so, establish or designate a successor entity (the “ Successor Borrower ”) which shall be a Special Purpose Bankruptcy Remote Entity and which shall be approved by the Rating Agencies.  Any such Successor Borrower may, at Borrower’s option, be an Affiliate of Borrower unless the Rating Agencies shall require otherwise.  Borrower shall transfer and assign all obligations, rights and duties under and to the Note, together with the Defeasance Collateral to such Successor Borrower.  Such Successor Borrower shall assume the obligations under the Note and the Security Agreement and Borrower shall be relieved of its obligations under such documents.  Borrower shall pay a minimum of $1,000 to any such Successor Borrower as consideration for assuming the obligations under the Note and the Security Agreement.  Borrower shall pay all costs and expenses incurred by Lender, including Lender’s attorney’s fees and expenses, incurred in connection therewith.

2.3.4                      Optional Prepayments .  On and after the third Payment Date prior to the Stated Maturity Date (the “ Permitted Prepayment Date ”), Borrower shall have the right to prepay the Loan in whole (but not in part), provided that Borrower gives Lender at least fifteen (15) days’ prior written notice thereof.  If any such prepayment is not made on a Payment Date, Borrower shall also pay interest that would have accrued on such prepaid Principal to, but not including, the next Payment Date.  Any such prepayment shall be made without payment of the Yield Maintenance Premium.

2.4                                Release of Property .

2.4.1                      Release on Defeasance .  If Borrower has elected to defease the Note and the requirements of Section 2.3.3 and this Section 2.4 have been satisfied, the Property shall be released from the Lien of the Mortgage and the Defeasance Collateral pledged pursuant to the Security Agreement shall be the sole source of collateral securing the Note.  In connection with the release of the Lien, Borrower shall submit to Lender, not less than thirty (30) days prior to the Defeasance Date (or such shorter time as is acceptable to Lender in its sole discretion), a release of Lien (and related Loan Documents) for execution by Lender.  Such release shall be in a form appropriate in the jurisdiction in which the Property is located and contain standard provisions protecting the rights of the releasing lender.  In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release, together with an Officer’s Certificate certifying that such documentation (i) is in compliance with all Legal Requirements, and (ii) will effect such release in accordance with the terms of this Agreement.  Borrower shall pay all costs, taxes and expenses associated with the release of the Lien of the Mortgage, including Lender’s reasonable attorneys’ fees.

2.4.2                      Release on Payment in Full .  Lender shall, upon the written request and at the expense of Borrower, upon payment in full of the Debt in accordance herewith, release or, if requested by Borrower, assign to Borrower’s’ designee (without any representation or

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warranty by and without any recourse against Lender whatsoever), the Lien of the Loan Documents if not theretofore released.

2.5                                Payments and Computations .

2.5.1                      Making of Payments .  Each payment by a Borrower shall be made in funds settled through the New York Clearing House Interbank Payments System or other funds immediately available to Lender by 11:00 a.m., New York City time, on the date such payment is due, to Lender by deposit to such account as Lender may designate by written notice to Borrower.  Whenever any such payment shall be stated to be due on a day that is not a Business Day, such payment shall be made on the first Business Day thereafter.  All such payments shall be made irrespective of, and without any deduction, set-off or counterclaim whatsoever and are payable without relief from valuation and appraisement laws and with all costs and charges incurred in the collection or enforcement thereof, including attorneys’ fees and court costs.

2.5.2                      Computations .  Interest payable under the Loan Documents shall be computed on the basis of the actual number of days elapsed over a 360-day year.

2.5.3                      Late Payment Charge .   If any regularly scheduled payment of Principal, interest or other monthly payment or reserve or escrow deposit due under any Loan Document is not paid by Borrower on the date on which it is due and, subject to the last sentence of this Section 2.5.3, such failure continues for five (5) days, Borrower shall pay to Lender upon demand an amount equal to the lesser of five percent (5%) of such unpaid sum or the maximum amount permitted by applicable law (the “ Late Payment Charge ”), in order to defray the expense incurred by Lender in handling and processing such delinquent payment and to compensate Lender for the loss of the use of such delinquent payment.  Such amount shall be secured by the Loan Documents.  With respect to the foregoing five (5) day grace period, the parties agree that such five (5) day grace period shall only be applicable no more than twice during the Term, and in all other instances, the Late Payment Charge shall be payable in accordance with this Section 2.5.3 with respect to any Principal, interest or other sum due under any Loan Document which is not paid by Borrower on the date on which the same is due (other than the balloon payment of Principal due on the Maturity Date or acceleration of the Loan).

3.                                       CASH MANAGEMENT AND RESERVES

3.1                                Cash Management Arrangements .   Borrower shall cause all Rents to be transmitted directly by tenants of the Property into a trust account (the “ Clearing Account ”) maintained by Borrower at a local bank selected by Borrower, which shall at all times be an Eligible Institution (the “ Clearing Bank ”) as more fully described in the Clearing Account Agreement.  Without in any way limiting the foregoing, all Rents received by Borrower, Manager or Sub-Manager shall be deposited into the Clearing Account within two Business Days of receipt.  Funds deposited into the Clearing Account shall be swept by the Clearing Bank on a daily basis into an Eligible Account at the Deposit Bank controlled by Lender (the “ Deposit Account ”) and applied and disbursed in accordance with this Agreement.  Funds in the Deposit Account shall be invested at Lender’s discretion only in Permitted Investments.  Lender will also establish subaccounts of the Deposit Account which shall at all times be Eligible Accounts (and may be ledger or book entry accounts and not actual accounts) (such subaccounts are collectively

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referred to herein as “ Subaccounts ”).  The Deposit Account and any Subaccount will be under the sole control and dominion of Lender, and Borrower shall not have any right of withdrawal therefrom.  Borrower shall pay for all expenses of opening and maintaining all of the above accounts.

3.2                                Required Repairs; Completion of Required Repairs .   Borrower shall perform and complete each item of the repairs and environmental remedial work at the Property described on Schedule 2 (the “ Required Repairs ”), if any, within one (1) year of the date hereof or such shorter period of time for such item set forth on Schedule 2, if any.  All such repairs and remedial work shall be completed in a good and workmanlike manner in accordance with all applicable Legal Requirements and free from all Liens not previously approved by Lender.

3.3                                Tax and Insurance Subaccount .

3.3.1                      Monthly Deposits .  Subject to the terms and provisions of Section 3.3.2 below, Borrower shall pay to Lender on each Payment Date (i) one-twelfth of the Taxes that Lender estimates will be payable during the next 12 months in order to accumulate with Lender sufficient funds to pay all such Taxes at least thirty (30) days prior to the delinquency date and (ii) one-twelfth of the Insurance Premiums that Lender estimates will be payable for the renewal of the coverage afforded by the Policies upon the expiration thereof in order to accumulate with Lender sufficient funds to pay all such Insurance Premiums at least 30 days prior to the expiration of the Policies.  Such amounts will be transferred by Lender to a Subaccount (the “ Tax and Insurance Subaccount ”).  Provided that no monetary Event of Default or material non-monetary Event of Default has occurred and is continuing, Lender will (a) apply funds in the Tax and Insurance Subaccount to payments of Taxes and Insurance Premiums required to be made by Borrower pursuant to Sections 5.2 and 7.1, provided that Borrower has promptly supplied Lender with notices of all Taxes and Insurance Premiums due, or (b) reimburse Borrower for such amounts upon presentation of evidence of payment; subject, however, to Borrower’s’ right to contest Taxes in accordance with Section 5.2.  In making any payment relating to Taxes and Insurance Premiums, Lender may do so according to any bill, statement or estimate procured from the appropriate public office (with respect to Taxes) or insurer or agent (with respect to Insurance Premiums), without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax, assessment, sale, forfeiture, tax lien or title or claim thereof.  If Lender determines in its reasonable judgment that the funds in the Tax and Insurance Subaccount will be insufficient to pay (or in excess of) the Taxes or Insurance Premiums next coming due, Lender may increase (or decrease) the monthly contribution required to be made by Borrower to the Tax and Insurance Subaccount.

3.3.2                      Waiver of Monthly Deposits .  Notwithstanding the foregoing, provided no Event of Default has occurred and is continuing and Borrower has provided to Lender evidence of payment of the Taxes and the Insurance Premiums in the manner and within the time periods set forth herein, Lender shall not require Borrower to make the monthly deposits required under Section 3.3.1 above.  Upon notice by Lender following the occurrence of an Event of Default or Borrower’s failure to provide such evidence of payment, Borrower shall resume making the monthly deposits required under Section 3.3.1 above with such payments to begin on the first Payment Date following such notice.

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3.4                                Ground Rent Subaccount .  Subject to the last sentence of this Section 3.4, on each Payment Date, Borrower shall pay to Lender, an amount that is estimated by Lender to be due and payable by Borrower under the Ground Lease for the Ground Rent, in order to accumulate with Lender sufficient funds to pay all sums payable under the Ground Lease at least ten (10) Business Days prior to the next due date for such sums.  Such amounts will be transferred by Lender to a Subaccount (the “ Ground Rent Subaccount ”).  Upon Borrower’s failure to pay any Ground Rents within the time periods required to be paid under the Ground Lease and at least five (5) days prior to the expiration of any cure period available to Borrower or Lender pursuant to the Ground Lease, Lender may, in its discretion, apply any amounts held in the Ground Rent Subaccount to the payment of such Ground Rent; provided however, that the provisions of this Section 3.4 shall not be deemed to create any obligation on the part of Lender to pay any such Ground Rent from amounts on deposit in the Ground Rent Subaccount.  Such deposit may be increased by Lender in the amount Lender deems necessary, in its reasonable discretion, based on any increases in the Ground Rent due under the Ground Lease.  Notwithstanding the foregoing, Borrower shall not be required to make monthly deposits to the Ground Rent Subaccount so long as Borrower has deposited and maintains in the Ground Rent Subaccount sufficient amounts for the payment of at least one (1) month of Ground Rents.

3.5                                Bank of America Lease Required Improvements Subaccount .   On the date hereof, Borrower shall deposit with Lender $2,921,160.23 and Lender shall transfer such amounts into a Subaccount (the “ Bank of America Lease Required Improvements Subaccount ”).  Provided that no Event of Default has occurred and is continuing, Lender shall disburse funds held in the Bank of America Lease Required Improvements Subaccount to Borrower, within ten (10) days after the delivery by Borrower to Lender of a request therefor (but not more often than once per month), in increments of at least $5,000, accompanied by the following items (which items shall be in form and substance satisfactory to Lender): (i) an Officer’s Certificate (A) certifying that the Bank of America Lease Required Improvements or any portion thereof which are the subject of the requested disbursement have been completed in a good and workmanlike manner and in accordance with all applicable Legal Requirements, (B) identifying each Person that supplied materials or labor in connection with such Bank of America Lease Required Improvements or any portion thereof and (C) stating that each such Person has been or, upon receipt of the requested disbursement, will be paid in full with respect to the portion of the Bank of America Lease Required Improvements which is the subject of the requested disbursement; (ii) copies of appropriate Lien waivers or other evidence of payment satisfactory to Lender; and (iii) such other evidence as Lender shall reasonably request that the Bank of America Lease Required Improvements which is the subject of the requested disbursement have been completed and paid for (which may, if required by Lender, include a tenant estoppel certificate from the tenant under the Bank of America Lease confirming the satisfactory completion of such Bank of America Lease Required Improvements and/or confirmation of any amounts due to the tenant under the Bank of America Lease as reimbursement for any Bank of America Lease Required Improvements).  Provided no Default or Event of Default shall have occurred and is continuing, upon completion of all of the Bank of America Lease Required Improvements, any balance remaining in the Bank of America Lease Required Improvements Subaccount shall promptly be released to Borrower.  Any such disbursement of more than $10,000 to pay (rather than reimburse) any Bank of America Lease Required Improvements may, at Lender’s option, be made by joint check payable to Borrower

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and the Person that supplied materials or labor in connection with such Bank of America Lease Required Improvements.

3.6                                Operating Expense Subaccount .   On each Payment Date during the continuance of a Cash Trap Period, a portion of Rents that have been deposited into the Deposit Account during the immediately preceding Interest Period in an amount equal to the monthly amount set forth in the Approved Operating Budget for the following month (plus any other amounts requested by Borrower for such month for payment of items constituting Approved Operating Expenses, which are not included in the Approved Operating Budget), shall be transferred into a Subaccount for the purpose of payment of Approved Operating Expenses for the month in which such Payment Date occurs (the “ Operating Expense Subaccount ”).  Provided no Event of Default has occurred and is continuing, Lender shall disburse funds held in the Operating Expense Subaccount to Borrower (or at Borrower’s direction, to Manager or Sub-Manager), within five (5) Business Days after delivery by Borrower to Lender of a request therefor (but not more often than weekly), in increments of at least $1,000, provided (i) such disbursement is for an Approved Operating Expense; and (ii) such disbursement is accompanied by (A) an Officer’s Certificate certifying (1) that such funds will be used to pay Approved Operating Expenses and a description thereof, (2) that all outstanding trade payables (other than those not yet due and payable or those to be paid from the requested disbursement or those constituting Permitted Indebtedness) have been paid in full, (3) that the same has not been the subject of a previous disbursement, and (4) that all previous disbursements have been or will be used to pay the previously identified Approved Operating Expenses, and (B) reasonably detailed documentation satisfactory to Lender as to the amount, necessity and purpose therefor.  Notwithstanding anything to the contrary contained herein, to the extent that (i) Borrower has requested a disbursement of funds from the Operating Expense Subaccount in accordance with the foregoing provisions and (ii) at the time of such request, the funds that have been collected in the Operating Expense Subaccount are insufficient to cover the same, then Lender shall nonetheless disburse additional funds that are thereafter deposited into the Operating Expense Subaccount to Borrower (without any requirement for Borrower to submit an additional request therefor); provided that sufficient funds have been collected in the Deposit Account to make the payments required under clauses (i) - (v) of Section 3.11(a) on the next succeeding Payment Date.

3.7                                Casualty/Condemnation Subaccount .  Borrower shall pay, or cause to be paid, to Lender all Proceeds or Awards due to any Casualty or Condemnation to be transferred to a Subaccount (the “ Casualty/Condemnation Subaccount ”) in accordance with the provisions of Section 7.  All amounts in the Casualty/Condemnation Subaccount shall be disbursed in accordance with the provisions of Section 7.

3.8                                Security Deposit Subaccount .  Borrower shall keep all security deposits under Leases in accordance with applicable Legal Requirements.  After the occurrence of an Event of Default, Borrower shall, upon Lender’s request, if permitted by applicable Legal Requirements, turn over to Lender the security deposits (and any interest theretofore earned thereon) under Leases, to be held by Lender in a Subaccount (the “ Security Deposit Subaccount ”) subject to the terms of the Leases.  Security deposits held in the Security Deposit Subaccount will be released by Lender upon notice from Borrower together with such evidence as Lender may reasonably request that such security deposit is required to be returned to a tenant pursuant to the terms of a Lease or may be applied as Rent pursuant to the rights of Borrower under the applicable Lease.

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Any letter of credit or other instrument that Borrower receives in lieu of a cash security deposit under any Lease shall (i) be maintained in full force and effect in the full amount unless replaced by a cash deposit as hereinabove described and (ii) if permitted pursuant to any Legal Requirements, name Lender as payee or mortgagee thereunder (or at Lender’s option, be fully assignable to Lender).

3.9                                Cash Collateral Subaccount .  If a Cash Trap Period shall have commenced, then on the immediately succeeding Payment Date and on each Payment Date thereafter during the continuance of such Cash Trap Period, all Available Cash shall be paid to Lender, which amounts shall be transferred by Lender into a Subaccount (the “ Cash Collateral Subaccount ”) as cash collateral for the Debt.  Any funds in the Cash Collateral Account and not previously disbursed or applied shall be disbursed to Borrower upon the termination of such Cash Trap Period.  Lender shall have the right, but not the obligation, at any time during the continuance of a monetary Event of Default or material non-monetary Event of Default, in its sole and absolute discretion to apply all sums then on deposit in the Cash Collateral Subaccount to the Debt, in such order and in such manner as Lender shall elect in its sole and absolute discretion, including (if the Loan has been accelerated) to make a prepayment of Principal (together with the applicable Yield Maintenance Premium applicable thereto).  Notwithstanding anything to the contrary contained above, Lender shall have the right, but not the obligation, in its sole and absolute discretion from time to time, to disburse funds deposited into the Cash Collateral Subaccount to Borrower for application to Approved Leasing Costs or capital expenditures approved by Lender, subject to such terms and conditions as Lender may require.

3.10                         Grant of Security Interest; Application of Funds .  As security for payment of the Debt and the performance by Borrower of all other terms, conditions and provisions of the Loan Documents, Borrower hereby pledges and assigns to Lender, and grants to Lender a security interest in, all Borrower’s right, title and interest in and to all Rents and in and to all payments to or monies held in the Clearing Account, the Deposit Account, all Subaccounts created pursuant to this Agreement (collectively, the “ Cash Management Accounts ”).  Borrower hereby grants to Lender a continuing security interest in, and agrees to hold in trust for the benefit of Lender, all Rents in its possession prior to the (i) payment of such Rents to Lender or (ii) deposit of such Rents into the Deposit Account.  Borrower shall not, without obtaining the prior written consent of Lender, further pledge, assign or grant any security interest in any Cash Management Account, or permit any Lien to attach thereto, or any levy to be made thereon, or any UCC Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto.  This Agreement is, among other things, intended by the parties to be a security agreement for purposes of the UCC.  Upon the occurrence and during the continuance of an Event of Default, Lender may apply any sums in any Cash Management Account in any order and in any manner as Lender shall elect in Lender’s discretion without seeking the appointment of a receiver and without adversely affecting the rights of Lender to foreclose the Lien of the Mortgage or exercise its other rights under the Loan Documents, provided that Lender will not apply any such sums to prepayment of Principal unless it has accelerated the Loan.  Cash Management Accounts shall not constitute trust funds and may be commingled with other monies held by Lender.  All interest which accrues on the funds in any Cash Management Account (other than the Tax and Insurance Subaccount) shall accrue for the benefit of Borrower and shall be taxable to Borrower and shall be added to and disbursed in the same manner and under the same conditions as the principal sum on which said interest accrued.  Upon repayment

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in full of the Debt, all remaining funds in the Subaccounts, if any, shall be promptly disbursed to Borrower.

3.11                         Property Cash Flow Allocation .  (a) All Rents deposited into the Deposit Account during the immediately preceding Interest Period shall be applied on each Payment Date as follows in the following order of priority: (i) First, to make payments into the Tax and Insurance Subaccount as required under Section 3.3; (ii) Second, to make payments into the Ground Rent Subaccount as required under Section 3.4; (iii) Third, to pay the monthly portion of the fees charged by the Deposit Bank in accordance with the Deposit Account Agreement; (iv) Fourth, to Lender to pay the Monthly Debt Service Payment Amount due on such Payment Date (plus, if applicable, interest at the Default Rate and all other amounts, other than those described under other clauses of this Section 3.11(a), then due to Lender under the Loan Documents); (v) intentionally omitted; (vi) Fifth, during the continuance of a Cash Trap Period, to make payments for Approved Operating Expenses as required under Section 3.6; (vii) Sixth, during the continuance of a Cash Trap Period, to make payments in an amount equal to all remaining Available Cash on such Payment Date into the Cash Collateral Subaccount in accordance with Section 3.9; and (viii) Lastly, except during the continuance of a Cash Trap Period, payments to Borrower of any remaining amounts.  Notwithstanding the foregoing, except during the continuance of a Cash Trap Period, provided that in any given Interest Period, all amounts referred to in the foregoing clauses (i) - (v) have been paid (if and as applicable), then at Borrower’s request, the payments to Borrower under the foregoing clause (viii) shall be made on a weekly basis.

(b)                                  The failure of Borrower to make all of the payments required under clauses (i) through (vii) of Section 3.11(a) in full on each Payment Date shall constitute an Event of Default under this Agreement; provided, however, if adequate funds are available in the Deposit Account for such payments, the failure by the Deposit Bank to allocate such funds into the appropriate Subaccounts shall not constitute an Event of Default.

(c)                                   Notwithstanding anything to the contrary contained in this Section 3.11, after the occurrence of an Event of Default, Lender may apply all Rents deposited into the Deposit Account and other proceeds of repayment in such order and in such manner as Lender shall elect, provided that Lender may not apply Rents to the prepayment of principal unless the Loan has been accelerated.

3.12                         Initial Deposits into Reserves .  The initial deposits required to be made on the date hereof into the reserve accounts established under this Article 3 are funded from the proceeds of the Loan disbursed at closing.

3.13                         Initial Leasing Reserve .  On the date hereof, Borrower shall deposit with Lender $4,398,707.84 (the “ Tenant Improvement Funds ”) and Lender shall transfer such amount into a Subaccount (the “ Tenant Improvement Reserve Subaccount ”).  The Tenant Improvement Funds shall be used to reimburse Borrower and/or to pay, in the allocated amounts and in accordance with the terms and conditions set forth in this Agreement, for the reasonable costs and expenses incurred by Borrower in completing the tenant improvements and/or paying the tenants under the applicable Leases allowances for tenant improvements and/or paying leasing commissions under the applicable Leases, in each case in the amounts allocated to, and as described for each

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applicable Lease, on Schedule 1 (the “ TI Leases ”).  Provided that no Event of Default has occurred and is continuing, Lender shall disburse Tenant Improvement Funds held in the Tenant Improvement Reserve Subaccount and applicable to each TI Lease (as set forth on Schedule 1) to Borrower, within fifteen (15) days after the delivery by Borrower to Lender of a request therefore (but not more often than once per month), in increments of at least $5,000 (or the remaining balance of the amount allocated to the applicable TI Lease, if less), provided: (i) Borrower shall have provided Lender with either (1) as to leasing commissions relating to the applicable TI Lease (as set forth on Schedule 1), reasonable evidence that such commissions have been paid, or are then due and will be paid with proceeds of the requested disbursement, or (2) as to leasehold improvement work or allowances therefor, reasonable evidence (which may, if required by Lender, include a tenant estoppel certificate from the tenant under the applicable TI Lease) indicating, as applicable, (A) that the tenant improvements or allowances therefor have been completed in accordance with the applicable TI Lease, (B) that the tenant under the applicable TI Lease is then owed and entitled to payment upon the applicable tenant allowance pursuant to the terms of such TI Lease, or (C) if the time period upon which the applicable tenant may draw upon the applicable TI Lease has elapsed, that such tenant is no longer entitled to obtain or require the payment of the applicable tenant allowance under the terms of the applicable TI Lease; and (ii) the request for disbursement is accompanied by (A) an Officer’s Certificate certifying that such funds will be used only to pay (or reimburse Borrower for) the relevant expenditures set forth above (or, in the event of a disbursement under clause (i)(C) above, that the condition set forth in such clause (i)(C) has been satisfied with respect to the applicable TI Lease), and that the same have not been the subject of a previous disbursement, and (B) reasonably detailed supporting documentation as to the amount, necessity and purpose therefor.  Any such disbursement of more than $50,000 to pay (rather than reimburse) tenant improvements under this Section may, at Lender’s option, be made by joint check payable to Borrower and the payee of such tenant improvements.

3.14                         Bank of America Lease Termination and Space Reduction - Letter of Credit .

(a)                                   In the event that Bank of America gives notice to Borrower of its intention to terminate a portion of the Bank of America Lease in connection with a reduction of the space covered by the Bank of America Lease, whether by right pursuant to the Bank of America Lease, by agreement with Borrower or otherwise, Borrower shall deliver to Lender, within thirty (30) days of such notice, either (i) cash in an amount equal to the Bank of America Lease Letter of Credit Amount (which cash shall be deposited into the Bank of America Lease Subaccount) or (ii) an Acceptable Letter of Credit in favor of Lender in an amount equal to the Bank of America Lease Letter of Credit Amount providing that the Lender or its successors and assigns may draw the full amount thereof at any time upon demand (and subject to no other drawing requirements or conditions) and otherwise in form and content satisfactory to Lender (such Letter of Credit and any replacement or renewals thereof, the “ Bank of America Lease Letter of Credit ”).  Subject to the provisions of this Section, Lender shall retain custody of the cash deposited in the Bank of America Lease Subaccount or the Bank of America Lease Letter of Credit until such time as the Loan is repaid in full.

(b)                                  Lender shall have the right to draw upon the Bank of America Lease Letter of Credit in the full amount thereof upon the occurrence of any of the following: (A) any Event of Default; (B) Lender receives a notice stating that the Bank of America Lease Letter of

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Credit will not be renewed (as provided for in such Bank of America Lease Letter of Credit) and either (i) a replacement Acceptable Letter of Credit in an amount equal to the amount of the Bank of America Lease Letter of Credit or (ii) cash in the amount of the Bank of America Lease Letter of Credit, is not provided at least ten (10) Business Days prior to the expiration date of the Bank of America Lease Letter of Credit; or (C) at any time the bank issuing the Bank of America Lease Letter of Credit shall cease to be an Approved Bank and either (i) a replacement Acceptable Letter of Credit in an amount equal to the amount of the Bank of America Lease Letter of Credit or (ii) cash in the amount of the Bank of America Lease Letter of Credit, is not provided within twenty (20) Business Days after notice thereof.

(c)                                   The proceeds of any draw under the Bank of America Lease Letter of Credit pursuant to Section 3.14(b)(A) above shall be allocated to the Debt, in such order and in such manner as Lender shall elect in its sole and absolute discretion, including (if the Loan has been accelerated) to make a prepayment of Principal (together with the applicable Yield Maintenance Premium applicable thereto).  The proceeds of any draw under the Bank of America Lease Letter of Credit pursuant to Section 3.14(b)(B) or (C) above shall be deposited by Lender into the Bank of America Lease Subaccount pursuant to Section 3.14(f) below and shall be governed by the provisions of this Section 3.14 as well as the other terms and conditions of this Agreement and the other Loan Documents.

(d)                                  If Borrower shall have delivered the Bank of America Lease Letter of Credit in accordance with this Section 3.14 and provided that no Event of Default has occurred and is continuing, the amount of the required Bank of America Lease Letter of Credit shall be reduced from time to time, upon Borrower’s written request to Lender, by an amount equal to not more than the amount that Borrower would have been entitled to have disbursed to it from the Bank of America Lease Subaccount under Section 3.14(f) below if cash was held in the Bank of America Lease Subaccount instead of the Bank of America Lease Letter of Credit, and provided further, that: (a) such requests may be made not more frequently than once per month; (b) without limiting any other requirement hereunder, the amount of any reduction shall be in increments of $100,000 or any whole multiple thereof; (c) all Bank of America Lease Draw Requirements shall have been satisfied as if cash was held in the Bank of America Lease Subaccount instead of the Bank of America Lease Letter of Credit and Borrower was requesting a disbursement of funds from the Bank of America Lease Subaccount in an amount equal to the requested reduction in the amount of the Bank of America Lease Letter of Credit.  If the amount of the Bank of America Lease Letter of Credit is reduced, Lender will cooperate with Borrower in amending or replacing the Bank of America Lease Letter of Credit to reflect such reduced amount.  Borrower shall pay any fees or other amounts charged by any issuing bank with respect to any such request and shall promptly pay to Lender all costs and expenses of Lender incurred in connection with any such request, including Lender’s reasonable attorneys’ fees.

(e)                                   If Borrower shall have delivered the Bank of America Lease Letter of Credit in accordance with this Section 3.14 and provided no Event of Default shall have occurred and be continuing, Lender shall surrender to Borrower such Bank of America Lease Letter of Credit within fifteen (15) days after the delivery by Borrower to Lender of a request therefor, provided that: (i) all of the Bank of America Space is leased to a replacement tenant or tenants reasonably acceptable to Lender; (ii) the term of such replacement lease or leases are at least five years each; (iii) the rent due under such leases shall be at least equal to the then current rent

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payable by Bank of America under the Bank of America Lease with respect to the space subject thereto (or that would have been payable with respect to the space subject thereto had the space not been reduced under the Bank of America Lease); (iv) Borrower shall have provided Lender (either concurrently with such request or in connection with prior reductions in the amount of the Bank of America Lease Letter of Credit) with tenant estoppel certificates from each such tenant under each applicable lease indicating that all construction to be performed and all improvements to be installed under the lease has been completed, that such tenant has accepted the tenant improvements and occupied the space covered by its lease and has commenced paying rent and the free rent or rent abatement periods under such lease has expired, and there are no defaults under such lease (nor does there exist any event or condition, which with the passage of time or the giving of notice, or both, could result in such a default); (v) Lender shall have (if it desires) verified (by an inspection conducted at Borrower’s expense) performance of any construction work associated with any such lease; and (vi) the request for release is accompanied by an Officer’s Certificate certifying that all of the costs of tenant improvements and leasing commissions with respect to the entire Bank of America Space relating to the Bank of America Lease Letter of Credit and all such replacement leases have been paid in full.  In addition, promptly after the Loan is repaid in full, Lender shall surrender to Borrower the Bank of America Lease Letter of Credit.

(f)                                     The proceeds of any draw under the Bank of America Lease Letter of Credit pursuant to Section 3.14(b)(B) or (C) above, any Bank of America Lease Termination Payment and any cash delivered to Lender in accordance with Section 3.14(a) hereof, shall be deposited with Lender, upon receipt thereof, and Lender shall transfer such amount into a Subaccount (“ Bank of America Lease Subaccount ”).  Provided that no Event of Default has occurred and is continuing, Lender shall disburse funds held in the Bank of America Lease Subaccount to Borrower, within fifteen (15) days after the delivery by Borrower to Lender of a request therefor (but not more often than once per month), in increments of at least $5,000, provided: (i) such disbursement is for an Approved Leasing Expense incurred hereafter; (ii) Lender shall have (if it desires) verified (by an inspection conducted at Borrower’s expense) performance of any construction work associated with such Approved Leasing Expense; (iii) all space relating to the request is leased to a replacement tenant or tenants reasonably acceptable to Lender; (iv) the term of such replacement lease or leases are at least five years each; (v) the rent due under such leases shall be at least equal to the then current rent payable by Bank of America under the Bank of America Lease with respect to the space subject thereto (or that would have been payable with respect to the space subject thereto had the space not been reduced under the Bank of America Lease); (vi) the request for disbursement is accompanied by (A) an Officer’s Certificate certifying (1) that such funds will be used only to pay (or reimburse Borrower for) Approved Leasing Expenses and a description thereof, (2) that all outstanding trade payables (other than those not yet due and payable or those to be paid from the requested disbursement or those constituting Permitted Indebtedness) have been paid in full, (3) that the same has not been the subject of a previous disbursement, and (4) that all previous disbursements have been used only to pay (or reimburse Borrower for) the previously identified Approved Leasing Expenses, and (B) reasonably detailed supporting documentation as to the amount, necessity and purpose therefor; (vii) the Effective Gross Income, determined on a pro forma basis for the following twelve (12) month period is equal to or greater than the Effective Gross Income for the previous twelve (12) month period; and (viii) Borrower shall have provided Lender with tenant estoppel certificates from each such tenant under each applicable lease

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indicating that all construction to be performed and all improvements to be installed under the lease has been completed, that such tenant has accepted the tenant improvements and occupied the space covered by its lease and has commenced paying rent and the free rent or rent abatement periods under such lease has expired, and there are no defaults under such lease (nor does there exist any event or condition, which with the passage of time or the giving of notice, or both, could result in such a default) (all requirements under this Section 3.14(f) for disbursement of funds from the Bank of America Lease Subaccount to Borrower, collectively, the “ Bank of America Lease Draw Requirements ”).  Any such disbursement of more than $10,000 to pay (rather than reimburse) Approved Leasing Expenses may, at Lender’s option, be made by joint check payable to Borrower and the payee of such Approved Leasing Expenses.

(g)                                  Borrower shall have the one-time right, upon ten (10) days prior written notice to Lender, and provided that no Event of Default then exists, to either (i) in the event that the Bank of America Lease Letter of Credit is being held by Lender pursuant to the terms of this Section 3.14, deliver to Lender cash in the amount of the Bank of America Lease Letter of Credit and in exchange thereof, Lender shall deliver to Borrower the Bank of America Lease Letter of Credit; or (ii) in the event that cash is being held by Lender in the Bank of America Lease Subaccount pursuant to the terms of this Section 3.14, deliver to Lender an Acceptable Letter of Credit in the amount of the cash being held by Lender in the Bank of America Lease Subaccount and in exchange thereof, Lender shall disburse to Borrower the cash on deposit in the Bank of America Lease Subaccount; provided, however, Borrower shall not have the right to obtain the exchange set forth in clause (ii) above in the event that the Bank of America Lease Letter of Credit has been drawn down pursuant to Section 3.14(b) hereof.

4.                                       REPRESENTATIONS AND WARRANTIES

Borrower represents and warrants to Lender as of the date hereof that, except to the extent (if any) disclosed on Schedule 3 with reference to a specific Section of this Article 4:

4.1                                Organization; Special Purpose .  Borrower has been duly organized and is validly existing and in good standing under the laws of the state of its formation, with requisite power and authority, and all rights, licenses, permits and authorizations, governmental or otherwise, necessary to own its properties and to transact the business in which it is now engaged.  Borrower is duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified in connection with its properties, business and operations.  Borrower is a Special Purpose Bankruptcy Remote Entity.

4.2                                Proceedings; Enforceability .  Borrower has taken all necessary action to authorize the execution, delivery and performance of the Loan Documents.  The Loan Documents to which Borrower is a party have been duly executed and delivered by Borrower and constitute legal, valid and binding obligations of Borrower enforceable against Borrower in accordance with their respective terms, subject to applicable bankruptcy, insolvency and similar laws affecting rights of creditors generally, and general principles of equity.  The Loan Documents to which Guarantor and/or Affiliates are a party have been duly executed and delivered by such Guarantor and/or Affiliates party thereto, and constitute legal, valid and binding obligations of such Guarantor and/or Affiliates party thereto, enforceable against such Guarantor and/or Affiliates party thereto in accordance with their respective terms, subject to

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applicable bankruptcy, insolvency and similar laws affecting rights of creditors generally, and general principles of equity.  The Loan Documents are not subject to, and Borrower has not asserted, any right of rescission, set-off, counterclaim or defense, including the defense of usury.  No exercise of any of the terms of the Loan Documents, or any right thereunder, will render any Loan Document unenforceable.

4.3          No Conflicts .  The execution, delivery and performance of the Loan Documents by Borrower and the transactions contemplated hereby will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any Lien (other than pursuant to the Loan Documents) upon any of the property of Borrower pursuant to the terms of, any agreement or instrument to which Borrower is a party or by which its property is subject, nor will such action result in any violation of the provisions of any statute or any order, rule or regulation of any Governmental Authority having jurisdiction over Borrower or the Property.  Borrower’s rights under the Licenses and the Management Agreement will not be adversely affected by the execution and delivery of the Loan Documents, Borrower’s performance thereunder, or the recordation of the Mortgage.  Any consent, approval, authorization, order, registration or qualification of or with any Governmental Authority required for the execution, delivery and performance by Borrower of the Loan Documents has been obtained and is in full force and effect.

4.4          Litigation .  There are no actions, suits or other proceedings at law or in equity by or before any Governmental Authority now pending or threatened against or affecting Borrower, the Manager or the Property, which, if adversely determined, might materially adversely affect the condition (financial or otherwise) or business of Borrower, Manager or the condition or ownership of the Property.

4.5          Agreements .  Borrower is not a party to any agreement or instrument or subject to any restriction which might adversely affect Borrower or the Property, or Borrower’s business, properties, operations or condition, financial or otherwise.  Borrower is not in default in any material respect in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any Permitted Encumbrance or any other agreement or instrument to which Borrower is a party or by which Borrower or the Property is bound.

4.6          Title .  Borrower has good, marketable and indefeasible title in fee to the real property and good title to the balance of the Property, free and clear of all Liens except the Permitted Encumbrances.  Borrower is lawfully possessed of the real property subject to each Ground Lease and by virtue of each Ground Lease and has a good and valid leasehold estate for the full term of each Ground Lease, free and clear of all liens, encumbrances and charges whatsoever except for the Permitted Encumbrances.  All transfer taxes, deed stamps, intangible taxes or other amounts in the nature of transfer taxes required to be paid by any Person under applicable Legal Requirements in connection with the transfer of the Property to Borrower have been paid.  The Mortgage when properly recorded in the appropriate records, together with any UCC Financing Statements required to be filed in connection therewith and the other Loan Documents, will create (i) a valid, perfected first priority lien on Borrower’s interest in that portion of the Property, the Leases (to the extent not subject to the Uniform Commercial Code) and the Rents constituting interest in real estate or real property interests (including fixtures) and (ii) to the extent that a security interest therein may be created under the Uniform Commercial

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Code, a valid security interest in that portion of the Property, the Leases (to the extent subject to the Uniform Commercial Code) and Rents and other collateral for the Loan constituting personal property, which security interest constitutes a perfected first priority security interest (a) to the extent that a security interest therein may be perfected by the filing of a UCC Financing Statement and (b) with respect to the Cash Management Accounts by virtue of Lender’s control of such Cash Management Accounts, all in accordance with the terms of such Loan Documents, in each case subject only to any applicable Permitted Encumbrances.  All mortgage, recording, stamp, intangible or other similar taxes required to be paid by any Person under applicable Legal Requirements in connection with the execution, delivery, recordation, filing, registration, perfection or enforcement of any of the Loan Documents have been paid (or will, contemporaneously with such recordation or filing, be) paid by Borrower.  The Permitted Encumbrances do not materially adversely affect the value, operation or use of the Property, or Borrower’s ability to repay the Loan.  No Condemnation or other proceeding has been commenced or, to Borrower’s best knowledge, is contemplated with respect to all or part of the Property or for the relocation of roadways providing access to the Property.  There are no claims for payment for work, labor or materials affecting the Property which are or may become a Lien prior to, or of equal priority with, the Liens created by the Loan Documents.  There are no outstanding options to purchase or rights of first refusal affecting all or any portion of the Property.  The survey for the Property delivered to Lender does not fail to reflect any material matter affecting the Property or the title thereto.  Except as shown on the survey, all of the Improvements included in determining the appraised value of the Property lie wholly within the boundaries and building restriction lines of the Property, and no improvement on an adjoining property encroaches upon the Property, and no easement or other encumbrance upon the Property encroaches upon any of the Improvements, except those insured against by the Title Insurance Policy.  Each parcel comprising the Property is a separate tax lot and is not a portion of any other tax lot that is not a part of the Property.  To the best of Borrower’s knowledge, there are no pending or proposed special or other assessments for public improvements or otherwise affecting the Property, or any contemplated improvements to the Property that may result in such special or other assessments.

4.7          No Bankruptcy Filing .  Borrower is not contemplating either the filing of a petition by it under any state or federal bankruptcy or insolvency law or the liquidation of all or a major portion of its property (a “ Bankruptcy Proceeding ”), and Borrower has no knowledge of any Person contemplating the filing of any such petition against Borrower.  In addition, neither Borrower nor any principal nor Affiliate of Borrower has been a party to, or the subject of a Bankruptcy Proceeding for the past ten years.

4.8          Full and Accurate Disclosure .  No statement of fact made by Borrower in any of the Loan Documents contains any untrue statement of a material fact or omits to state any material fact necessary to make statements contained therein not misleading.  There is no material fact presently known to Borrower that has not been disclosed to Lender which adversely affects, or, as far as Borrower can foresee, might adversely affect, the Property or the business, operations or condition (financial or otherwise) of Borrower.  All financial data, including the statements of cash flow and income and operating expense, that have been delivered to Lender in respect of Borrower and, to Borrower’s knowledge, the Property (i) are true, complete and correct in all material respects, (ii) accurately represent the financial condition of Borrower and the Property as of the date of such reports, and (iii) to the extent prepared by an independent

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certified public accounting firm, have been prepared in accordance with GAAP consistently applied throughout the periods covered, except as disclosed therein.  Borrower does not have any contingent liabilities, liabilities for taxes, unusual forward or long-term commitments, unrealized or anticipated losses from any unfavorable commitments or any liabilities or obligations not expressly permitted by this Agreement.  Since the date of such financial statements, there has been no materially adverse change in the financial condition, operations or business of Borrower or the Property from that set forth in said financial statements.

4.9          Tax Filings .  To the extent required, Borrower has filed (or has obtained effective extensions for filing) all federal, state and local tax returns required to be filed and have paid or made adequate provision for the payment of all federal, state and local taxes, charges and assessments payable by Borrower.  Borrower believes that its tax returns (if any) properly reflect the income and taxes of Borrower for the periods covered thereby, subject only to reasonable adjustments required by the Internal Revenue Service or other applicable tax authority upon audit.

4.10        No Plan Assets .  As of the date hereof and throughout the Term (i) Borrower is not and will not be an “employee benefit plan,” as defined in Section 3(3) of ERISA, subject to Title I of ERISA, (ii) none of the assets of Borrower constitutes or will constitute “plan assets” of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101, (iii)  Borrower is not and will not be a “governmental plan” within the meaning of Section 3(32) of ERISA, and (iv) transactions by or with Borrower are not and will not be subject to state statutes regulating investment of, and fiduciary obligations with respect to, governmental plans.  As of the date hereof, neither Borrower, nor any member of a “controlled group of corporations” (within the meaning of Section 414 of the Code) maintains, sponsors or contributes to a “defined benefit plan” (within the meaning of Section 3(35) of ERISA) or a “multiemployer pension plan” (within the meaning of Section 3(37)(A) of ERISA).

4.11        Compliance .  Each Borrower and, to Borrower’s best knowledge, the Property and the use thereof comply in all material respects with all applicable Legal Requirements (including with respect to parking and applicable zoning and land use laws, regulations and ordinances).  Borrower is not in default or violation of any order, writ, injunction, decree or demand of any Governmental Authority, the violation of which might materially adversely affect the condition (financial or otherwise) or business of Borrower.  The Property is used exclusively as an office building property and other appurtenant and related uses.  In the event that all or any part of the Improvements are destroyed or damaged, said Improvements can be legally reconstructed to their condition prior to such damage or destruction, and thereafter exist for the same use without violating any zoning or other ordinances applicable thereto and without the necessity of obtaining any variances or special permits.  No legal proceedings are pending or, to the knowledge of Borrower, threatened with respect to the zoning of the Property.  Neither the zoning nor any other right to construct, use or operate the Property is in any way dependent upon or related to any property other than the Property. All certifications, permits, licenses and approvals, including certificates of completion and occupancy permits required for the legal use, occupancy and operation of the Property (collectively, the “ Licenses ”), have been obtained and are in full force and effect.  The use being made of the Property is in conformity with the certificate of occupancy issued for the Property and all other restrictions, covenants and conditions affecting the Property.

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4.12        Contracts .  There are no service, maintenance or repair contracts affecting the Property that are not terminable on one month’s notice or less without cause and without penalty or premium.  All service, maintenance or repair contracts affecting the Property have been entered into at arms-length in the ordinary course of Borrower’s business (or that of its predecessor in interest) and provide for the payment of fees in amounts and upon terms comparable to existing market rates.

4.13        Federal Reserve Regulations; Investment Company Act .  No part of the proceeds of the Loan will be used for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or for any other purpose that would be inconsistent with such Regulation U or any other regulation of such Board of Governors, or for any purpose prohibited by Legal Requirements or any Loan Document.  Borrower is not (i) an “investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended; (ii) a “holding company” or a “subsidiary company” of a “holding company” or an “affiliate” of either a “holding company” or a “subsidiary company” within the meaning of the Public Utility Holding Company Act of 1935, as amended; or (iii) subject to any other federal or state law or regulation which purports to restrict or regulate its ability to borrow money.

4.14        Easements; Utilities and Public Access .  All easements, cross easements, licenses, air rights and rights-of-way or other similar property interests (collectively, “ Easements ”), if any, necessary for the full utilization of the Improvements for their intended purposes have been obtained, are described in the Title Insurance Policy and are in full force and effect without default thereunder.  The Property has rights of access to public ways and is served by water, sewer, sanitary sewer and storm drain facilities adequate to service it for its intended uses.  All public utilities necessary or convenient to the full use and enjoyment of the Property are located in the public right-of-way abutting the Property, and all such utilities are connected so as to serve the Property without passing over other property absent a valid easement.  All roads necessary for the use of the Property for its current purpose have been completed and dedicated to public use and accepted by all Governmental Authorities.

4.15        Physical Condition .  To Borrower’s knowledge and except as set forth in the property condition assessment, prepared by EMG and delivered to Lender in connection with the Loan, the Property, including all Improvements, parking facilities, systems, Equipment and landscaping, are in good condition, order and repair in all material respects; to Borrower’s knowledge there exists no structural or other material defect or damages to the Property, whether latent or otherwise.  Borrower has not received notice from any insurance company or bonding company of any defect or inadequacy in the Property, or any part thereof, which would adversely affect its insurability or cause the imposition of extraordinary premiums or charges thereon or any termination of any policy of insurance or bond.  No portion of the Property is located in an area as identified by the Federal Emergency Management Agency as an area having special flood hazards.  The Improvements have suffered no material casualty or damage which has not been fully repaired and the cost thereof fully paid.

4.16        Leases .  The rent roll attached hereto as Schedule 8 (the “ Rent Roll ”) is true, complete and correct and the Property is not subject to any Leases other than the Leases described in the Rent Roll.  Except as set forth on the Rent Roll or tenant estoppel certificates

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delivered to Lender prior to the date hereof: (i) each Lease is in full force and effect; (ii) the tenants under the Leases have accepted possession of and are in occupancy of all of their respective demised premises, have commenced the payment of rent under the Leases, and there are no offsets, claims or defenses to the enforcement thereof; (iii) all rents due and payable under the Leases have been paid and no portion thereof has been paid for any period more than 30 days in advance; (iv) the rent payable under each Lease is the amount of fixed rent set forth in the Rent Roll, and there is no claim or basis for a claim by the tenant thereunder for an adjustment to the rent; (v) to Borrower’s best knowledge, no tenant has made any claim against the landlord under any Lease which remains outstanding, there are no defaults on the part of the landlord under any Lease, and no event has occurred which, with the giving of notice or passage of time, or both, would constitute such a default; (vi) to Borrower’s best knowledge, there is no present material default by the tenant under any Lease; (vii) all security deposits under Leases are as set forth on the Rent Roll and are held consistent with Section 3.8; (viii) Borrower is the sole owner of the entire lessor’s interest in each Lease; (ix) each Lease is the valid, binding and enforceable obligation of Borrower and the applicable tenant thereunder; (x) to Borrower’s best knowledge, no Person has any possessory interest in, or right to occupy, the Property except under the terms of the Lease; and (xi) each Lease is subordinate to the Loan Documents, either pursuant to its terms or pursuant to a subordination and attornment agreement.  None of the Leases contains any option to purchase or right of first refusal to purchase the Property or any part thereof.  Neither the Leases nor the Rents have been assigned or pledged except to Lender, and no other Person has any interest therein except the tenants thereunder.

4.17        Fraudulent Transfer .  Borrower has not entered into the Loan or any Loan Document with the actual intent to hinder, delay, or defraud any creditor, and Borrower has received reasonably equivalent value in exchange for its obligations under the Loan Documents.  Giving effect to the transactions contemplated by the Loan Documents, the fair saleable value of Borrower’s assets exceeds and will, immediately following the execution and delivery of the Loan Documents, exceed Borrower’s total probable liabilities, including subordinated, unliquidated, disputed or contingent liabilities, including the maximum amount of its contingent liabilities or its debts as such debts become absolute and matured.  Borrower’s assets do not and, immediately following the execution and delivery of the Loan Documents will not, constitute unreasonably small capital to carry out its business as conducted or as proposed to be conducted.  Borrower does not intend to, and does not believe that it will, incur debts and liabilities (including contingent liabilities and other commitments) beyond its ability to pay such debts as they mature (taking into account the timing and amounts to be payable on or in respect of obligations of Borrower).

4.18        Ownership of Borrower .  The sole limited partner (99.9% limited partner) of Borrower is Behringer Harvard Operating Partnership.  The sole general partner (0.1% general partner) of Borrower is Borrower GP.  The only partners of Behringer Harvard Operating Partnership are Behringer Harvard REIT (0.1% general partner), BHR Partners (in excess of 90% limited partner) and certain other individual holders of equity interests (less than 10% limited partners).  The sole member of BHR Partners is Behringer Harvard REIT.  The partnership interests in Borrower, the membership interest in Borrower GP and the general partnership interest of Behringer Harvard REIT and the limited partnership interests of BHR Partners in Behringer Harvard Operating Partnership are owned free and clear of all Liens, warrants, options and rights to purchase.  Borrower has no obligation to any Person to purchase,

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repurchase or issue any ownership interest in it.  The organizational chart attached hereto as Schedule 4 is complete and accurate and illustrates all Persons who have a direct or indirect ownership interest in Borrower.

4.19        Purchase Options .  Neither the Property nor any part thereof is subject to any purchase options or other similar rights in favor of third parties.

4.20        Management Agreement .  The Management Agreement is in full force and effect.  There is no default, breach or violation existing thereunder, and no event has occurred (other than payments due but not yet delinquent) that, with the passage of time or the giving of notice, or both, would constitute a default, breach or violation thereunder, by either party thereto.  Pursuant to the Management Agreement, Borrower has appointed the Manager as its agent for (i) hiring, terminating (subject to the provisions thereof), overseeing and otherwise dealing with any sub-property manager for the Property, (ii) otherwise overseeing the operation and management of the Property, and (iii) making decisions and otherwise interacting and dealing with Lender with respect to the Loan, this Agreement, the other Loan Documents and the Property.  Additionally, subject to the provisions of Section 3.1 and the Clearing Account Agreement and the Deposit Account Agreement, the Manager has control of all operating and other bank accounts with respect to the Property.

4.21        Hazardous Substances .  Except as disclosed in the environmental assessment reports delivered to Lender in connection with the Loan, (i) the Property is not in violation of any Legal Requirement pertaining to or imposing liability or standards of conduct concerning environmental regulation, contamination or clean-up, including the Comprehensive Environmental Response, Compensation and Liability Act, the Resource Conservation and Recovery Act, the Emergency Planning and Community Right-to-Know Act of 1986, the Hazardous Substances Transportation Act, the Solid Waste Disposal Act, the Clean Water Act, the Clean Air Act, the Toxic Substance Control Act, the Safe Drinking Water Act, the Occupational Safety and Health Act, any state super-lien and environmental clean-up statutes, any local law requiring related permits and licenses and all amendments to and regulations in respect of the foregoing laws (collectively, “ Environmental Laws ”); (ii) the Property is not subject to any private or governmental Lien or judicial or administrative notice or action or inquiry, investigation or claim relating to hazardous, toxic and/or dangerous substances, toxic mold or fungus of a type that may pose a risk to human health or the environment or would negatively impact the value of the Property (“ Toxic Mold ”) or any other substances or materials which are included under or regulated by Environmental Laws (collectively, “ Hazardous Substances ”); (iii) to the best of Borrower’s knowledge, after due inquiry, no Hazardous Substances are or have been (including the period prior to Borrower’s acquisition of the Property), discharged, generated, treated, disposed of or stored on, incorporated in, or removed or transported from the Property other than in compliance with all Environmental Laws; (iv) to the best of Borrower’s knowledge, after due inquiry, no Hazardous Substances are present in, on or under any nearby real property which could migrate to or otherwise affect the Property; (v) to the best of Borrower’s knowledge, no Toxic Mold is on or about the Property which requires remediation; and (vi) no underground storage tanks exist on the Property and the Property has never been used as a landfill.  To the best of Borrower’s knowledge, there have been no environmental investigations, studies, audits, reviews or other analyses conducted by or on behalf of Borrower which have not been provided to Lender.

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4.22        Name; Principal Place of Business .  Borrower does not use and will not use any trade name or has done or will not do business under any name other than its actual name set forth herein and the trade name of the Property.  The principal place of business of Borrower is its primary address for notices as set forth in Section 6.1, and Borrower has no other place of business.

4.23        Other Debt .  There is no indebtedness with respect to the Property or any excess cash flow or any residual interest therein, whether secured or unsecured, other than Permitted Encumbrances and Permitted Indebtedness.

4.24        Intentionally Omitted .

4.25        Intentionally Omitted .

4.26        Ground Lease .   Borrower has delivered to Lender a true, correct and complete copy of each Ground Lease.  Neither Ground Lease has been amended, modified, supplemented or assigned.  Borrower is the sole tenant and holder of a good, valid and marketable leasehold estate under each Ground Lease and the interest of Borrower, as tenant, under each Ground Lease has not been assigned.  Each Ground Lease is in full force and effect.  No default exists on the part of any party under any Ground Lease, and no event has occurred which, but for the passage of time, or notice, or both, would constitute a default under any Ground Lease.  All rents, additional rents and other sums due and payable under each Ground Lease has been paid in full.  No party to any Ground Lease has commenced any action or given or received any notice for the purpose of terminating any Ground Lease.  Except for each Ground Lease, there are no agreements between Borrower and the lessor thereunder, in any way concerning the subject matter of such Ground Lease, the Property or the occupancy or use of the Property.

5.                                       COVENANTS

Until the end of the Term, Borrower hereby covenants and agrees with Lender that:

5.1          Existence .  Borrower shall (i) do or cause to be done all things necessary to preserve, renew and keep in full force and effect its existence, rights, and franchises, (ii) continue to engage in the business presently conducted by it, (iii) obtain and maintain all Licenses, and (iv) qualify to do business and remain in good standing under the laws of each jurisdiction, in each case as and to the extent required for the ownership, maintenance, management and operation of the Property.

5.2          Taxes and Other Charges .  Borrower shall pay all Taxes and Other Charges prior to delinquency, and deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes have been so paid at least thirty (30) days prior to the delinquency date (provided, however, that Borrower need not pay such Taxes nor furnish such receipts for payment of Taxes paid by Lender pursuant to Section 3.3) and that the Other Charges have been so paid prior to delinquency.  Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien against the Property, and shall promptly pay for all utility services provided to the Property.  After prior notice to Lender, Borrower, at their own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application of any Taxes or Other Charges, provided that

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(i) no Event of Default has occurred and is continuing, (ii) such proceeding shall suspend the collection of the Taxes or such Other Charges, (iii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder, (iv) no part of or interest in the Property will be in imminent danger of being sold, forfeited, terminated, canceled or lost, (v) Borrower shall have furnished such security as may be required in the proceeding, or as may be requested by Lender, to insure the payment of any such Taxes or Other Charges, together with all interest and penalties