MEZZANINE A LOAN AGREEMENT

Exhibit 10.9

MEZZANINE A LOAN AGREEMENT

Dated as of October 5, 2007

Between

THE ENTITIES IDENTIFIED IN EXHIBIT A ANNEXED HERETO ,
as Borrower

and

LEHMAN BROTHERS HOLDINGS INC.,
BANK OF AMERICA, N.A.
AND
BARCLAYS CAPITAL REAL ESTATE FINANCE INC. ,
as Lender

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MEZZANINE A LOAN AGREEMENT

THIS MEZZANINE A LOAN AGREEMENT , dated as of October 5, 2007 (as amended, restated, replaced, supplemented or otherwise modified from time to time, this “ Agreement ”), between LEHMAN BROTHERS HOLDINGS INC. , a Delaware corporation, having an address at 399 Park Avenue, New York, New York 10022 (“ Lehman ”), BANK OF AMERICA, N.A. , a national banking association, having an address at Hearst Tower, 214 North Tryon Street, Charlotte, North Carolina 28255 (“ BofA ”) and BARCLAYS CAPITAL REAL ESTATE FINANCE INC. , a Delaware corporation, having an address at 200 Park Avenue, New York, New York 10166 (“ Barclays ”; together with Lehman and BofA, individually and collectively, as the context may require, “ Lender ”), and THE ENTITIES IDENTIFIED IN EXHIBIT A ANNEXED HERETO , each having its principal place of business at c/o Archstone-Smith Operating Trust, 9200 E. Panorama Circle, Suite 400, Englewood, Colorado 80112 (each of such entities being referred to, individually, as a “ Borrower Entity ”, and all of such entities being referred to, collectively, as the “ Borrower Entities ” or “ Borrower ”).

W I T N E S S E T H:

WHEREAS, Borrower desires to obtain the Loan (as hereinafter defined) from Lender; and

WHEREAS, Lender is willing to make the Loan to Borrower, subject to and in accordance with the terms of this Agreement and the other Loan Documents (as hereinafter defined);

NOW, THEREFORE, in consideration of the making of the Loan by Lender and the covenants, agreements, representations and warranties set forth in this Agreement, the parties hereto hereby covenant, agree, represent and warrant as follows:

I.              DEFINITIONS; PRINCIPLES OF CONSTRUCTION

Section 1.1             Definitions.

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

“Accounts” shall mean, collectively, the escrow or reserve accounts established under the Mortgage Loan Documents or hereunder if required by the terms and provisions of Article VII hereof.

“Act” shall have the meaning set forth in Section 4.1.35(d) hereof.

“Actual Knowledge” shall mean (and shall be limited to), with respect to Borrower or Principal as of any relevant date, the actual (as distinguished from implied, imputed or constructive) knowledge of Caroline Brower, Chaz Mueller and Tom Reif as of such date, without such individuals having made, or having any obligation to make, an independent inquiry or investigation with respect to the matter in question.

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“Additional Guarantor” shall mean any entity that enters into a confirmation and joinder agreement as provided in the Guaranty and, with regard to any concurrent transfer, such transfer shall not cause a reduction of the direct or indirect interests in the Guarantors held by the Lehman Entities and/or the Tishman Speyer Control Persons below 9.7% in the aggregate.

“Affiliate” shall mean, 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. Such term shall include Guarantor unless otherwise specified or if the context may otherwise require.

“Affiliate Agreements” shall have the meaning set forth in Section 5.2.9(b) hereof.

“Affiliated Manager” shall mean any property manager which is an Affiliate of, or in which Borrower, Mortgage Borrower, Principal or Guarantor has, directly or indirectly, any legal, beneficial or economic interest.

“Agent” shall have the meaning set forth in Section 9.7.2(d) hereof.

“Agreement Regarding Management Agreement” shall mean an agreement regarding the management agreement which subordinates the terms, conditions and fees due under the Management Agreement to the terms and conditions of the Loan Documents, executed by and between Lender, Borrower and Manager, and which is reasonably acceptable to Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Allocated Loan Amount” shall mean, for any Individual Property, the amount set forth opposite the name of such Individual Property on Exhibit C attached hereto.

“ALTA” shall mean American Land Title Association, or any successor thereto.

“Alteration” shall have the meaning set forth in Section 5.1.20 hereof.

“Applicable Interest Rate” shall mean an interest rate equal to         % per annum.

“Applicable Laws” shall mean all existing and future federal, state and local laws, orders, ordinances, governmental rules and regulations and court orders.

“Appraisal” shall mean an appraisal prepared in accordance with the requirements of FIRREA and USPAP, prepared by an independent third party appraiser holding an MAI designation, who is State licensed or State certified if required under the laws of the State where the applicable Individual Property is located, who meets the requirements of FIRREA and USPAP and who is otherwise reasonably satisfactory to Lender.

“Approval Period” shall have the meaning set forth in Section 5.1.17(a) hereof.

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“ASOT” shall mean Archstone-Smith Operating Trust, a Maryland real estate investment trust.

“Assignment and Assumption” shall have the meaning set forth in Section 9.7.2 hereof.

“Assumption Agreement” shall have the meaning set forth in Section 5.2.11(a)(iii) hereof.

“Award” shall mean any compensation paid by any Governmental Authority in connection with a Condemnation.

“Bank Loan” shall mean those certain extensions of credit made by the Bank Loan Lenders to Bank Loan Borrower pursuant to the Bank Loan Credit Agreement.

“Bank Loan Agent” shall mean Lehman Commercial Paper, Inc., as Administrative Agent for the Bank Loan Lenders, together with its successors and assigns.

“Bank Loan Borrower” shall have the meaning ascribed to the term “Borrower” in the Bank Loan Credit Agreement.

“Bank Loan Credit Agreement” shall mean that certain Credit Agreement, dated as of the date hereof, between Bank Loan Borrower, the Bank Loan Lenders, the Bank Loan Agent and the other parties set forth therein, as the same may hereafter be amended, restated, supplemented or otherwise modified from time to time.

“Bank Loan Documents” shall mean, collectively, the “Loan Documents” as defined in the Bank Loan Credit Agreement.

“Bank Loan Intercreditor Agreement” shall mean that certain Intercreditor Agreement, dated as of the date hereof, between and among Lender, Mezzanine B Lender, Mortgage Lender and Bank Loan Lender.

“Bank Loan Lenders” shall mean, collectively, the “Lenders” as defined in the Bank Loan Credit Agreement.

“Bankruptcy Code” shall mean Title 11 U.S.C. § 101, et seq., and the regulations adopted and promulgated pursuant thereto (as the same may be amended from time to time), or any successor thereto.

“Basic Carrying Costs” shall mean, with respect to any Individual Property, for any Fiscal Year or other payment period, the sum of the following costs associated with such Individual Property for such Fiscal Year or payment period: (i) Taxes and (ii) Insurance Premiums.

“Borrower” shall mean, collectively, the entities identified in Exhibit A annexed hereto, together with their respective successors and assigns.

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“Borrower Entity” shall mean each of the entities identified in Exhibit A annexed hereto, together with their respective successors and assigns.

“Business Day” shall mean any day other than a Saturday, Sunday or any other day on which national banks in New York, New York are not open for business.

“Business Party” shall have the meaning set forth in Section 4.1.35(b) hereof.

“Capital Expenditures” shall mean, for any period, the amount expended during such period with respect to the Properties for items capitalized under GAAP (including expenditures for building improvements or major repairs, leasing commissions and tenant improvements).

“Cash” shall mean coin or currency of the United States of America or immediately available federal funds, including such funds delivered by wire transfer.

“Casualty” shall mean the occurrence of any casualty, damage or injury, by fire or otherwise, to any Individual Property or any part thereof.

“Closing Date” shall mean October 5, 2007, the date of the funding of the Loan.

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

“Co-Lender” shall have the meaning set forth in Section 9.7.2 hereof.

“Co-Lending Agreement” shall mean the co-lending agreement entered into between Lender, individually as a Co-Lender and as Agent and the other Co-Lenders in the event of a Syndication, as the same may be further supplemented modified, amended or restated.

“Collateral” shall mean (i) the Collateral as defined in the Pledge Agreement and (ii) all other collateral for the Loan granted in the Loan Documents.

“Condemnation” shall mean a temporary or permanent taking by any Governmental Authority as the result or in lieu or in anticipation of the exercise of the right of condemnation or eminent domain of all or any part of any Individual Property, or any interest therein or right accruing thereto, including any right of access thereto or any change of grade affecting such Individual Property or any part thereof.

“Condemnation Proceeds” shall mean the net amount of any Award, after deduction of the reasonable costs and expenses (including, but not limited to, reasonable counsel fees), if any, in collecting same.

“control” (and the correlative terms “controlled by” and “controlling”) shall mean, with respect to any entity, the possession, directly or indirectly, of the power to

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direct or cause the direction of management and policies of the business and affairs of such entity by reason of the ownership of beneficial interests, by contract or otherwise.

“Creditors Rights Laws” shall mean, with respect to any Person, any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization, conservatorship, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to its debts or debtors.

“Debt” shall mean the outstanding principal amount set forth in, and evidenced by, this Agreement and the Note, together with all interest accrued and unpaid thereon and all other sums due to Lender in respect of the Loan under the Note, this Agreement, the Pledge Agreement or any other Loan Document.

“Debt Service” shall mean, with respect to any period, interest payments and/or principal and interest payments due under the Note for such period.

“Debt Service Shortfall” means as of any Payment Date, the amount, if any, by which the Debt Service due on such Payment Date in respect of any applicable interest accrual period exceeds Net Cash Flow for the same period.

“Default” shall mean the occurrence of any event hereunder or under any other Loan Document which, but for the giving of notice or passage of time, or both, would constitute an Event of Default.

“Default Rate” shall mean a rate per annum equal to the lesser of (a) the Maximum Legal Rate, and (b) four percent (4%) above the Applicable Interest Rate.

“Determination Date” shall mean the first Payment Date in each January, April, July, and October, during the term of the Loan.

“Disclosure Document” shall have the meaning set forth in Section 9.2 hereof.

“Disclosed Litigation” shall have the meaning set forth in Section 4.1.4 hereof.

“Distributions” shall have the meaning set forth in Section 5.2.13 hereof.

“Eligible Account” shall mean an identifiable account separate from all other funds held by the holding institution that is either (a) an account or accounts maintained with a federal or State chartered depository institution or trust company which complies with the definition of Eligible Institution or (b) a segregated trust account or accounts maintained with a federal or State chartered depository institution or trust company acting in its fiduciary capacity which, in the case of a State chartered depository institution or trust company, is subject to regulations substantially similar to 12 C.F.R.§9.10(b), having in either case a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by federal and State authority. An Eligible Account will not be evidenced by a certificate of deposit, passbook or other instrument.

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“Eligible Institution” shall mean a depository institution or trust company, insured by the Federal Deposit Insurance Corporation, (a) the short term unsecured debt obligations or commercial paper of which 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 (b) the long term unsecured debt obligations of which are rated at least “AA-” by Fitch and S&P and “Aa3” by Moody’s in the case of accounts in which funds are held for more than thirty (30) days.

“Embargoed Person” shall have the meaning set forth in Section 4.1.44 hereof.

“Environmental Indemnity” shall mean that certain Mezzanine A Environmental Indemnity Agreement executed by Borrower for the benefit of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Environmental Law” shall mean any federal, State and local laws, statutes, ordinances, rules, regulations, standards, policies and other government directives or requirements, as well as common law, that, at any time, apply to Borrower or any Individual Property and relate to Hazardous Materials, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act and the Resource Conservation and Recovery Act.

“Environmental Liens” shall have the meaning set forth in Section 5.1.19(a) hereof.

“Environmental Report” shall have the meaning set forth in Section 4.1.39 hereof.

“Equipment” shall have the meaning set forth in Section 5.2.10(a) hereof.

“Equipment Lease Agreements” shall have the meaning set forth in Section 5.2.10(a) hereof.

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended, and as the same may hereafter be further amended from time to time.

“Event of Default” shall have the meaning set forth in Section 8.1(a) hereof.

“Exchange Act” shall have the meaning set forth in Section 9.2 hereof.

“Exchange Act Filing” shall have the meaning set forth in Section 9.2 hereof.

“Excluded Taxes” shall mean (i) any U.S. Taxes imposed solely by reason of the failure by such Person (or, if such Person is not the beneficial owner of the Loan, such beneficial owner) to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America of such Person (or beneficial owner, as the case may be) if such compliance is required by statute or regulation of the United States of America as a precondition to relief or exemption from such U.S. Taxes; (ii) with respect to any Person who is a fiduciary or partnership or other than the sole beneficial

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owner of such payment, any U.S. Tax imposed with respect to payments made under the Note to a fiduciary or partnership to the extent that the beneficial owner or member of the partnership would not have been entitled to the additional amounts if such beneficial owner or member of the partnership had been the holder of the Note; or (iii) any taxes on profits, branch profits, franchise taxes and taxes imposed on or measured by all or part of gross or net income of the recipient of such payment by the jurisdiction under the laws of which the recipient is organized, in which it is a citizen, resident or domiciliary, or, in each case, any political subdivision of any thereof.

“Exculpated Party” shall have the meaning set forth in Section 9.4(a) hereof.

“Executive Order” shall have the meaning ascribed to such term in the definition of Prohibited Person.

“FIRREA” means the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended, and as the same may hereafter be further amended from time to time.

“Fiscal Year” shall mean each twelve (12) month period commencing on January 1 and ending on December 31 during the term of the Loan.

“Fitch” shall mean Fitch, Inc.

“Foreign Taxes” shall mean any present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any foreign Governmental Authority.

“GAAP” shall mean generally accepted accounting principles in the United States of America.

“Governmental Authority” shall mean any court, board, agency, commission, office, central bank or other authority of any nature whatsoever for any governmental unit (federal, State, county, district, municipal, city, country or otherwise) or quasi-governmental unit whether now or hereafter in existence.

“Gross Income from Operations” shall mean the gross cash receipts derived from the ownership and operation of the Properties, from whatever source, including, but not limited to, the Rents, utility charges, escalations, forfeited security deposits (but only to the extent applied to rent payable under the applicable Lease, as and when payable), interest on credit accounts, service fees or charges, license fees, parking fees, rent concessions or credits, other required pass-throughs and interest on the Reserve Funds (if and to the extent such interest is actually disbursed to Borrower or Mortgage Borrower), but excluding sales, use and occupancy or other taxes on receipts required to be accounted for by Mortgage Borrower to any Governmental Authority, refunds and uncollectible accounts, sales of furniture, fixtures and equipment, Insurance Proceeds (other than business interruption or other loss of income insurance), Awards, unforfeited security deposits, utility and other similar deposits and any disbursements to Borrower or Mortgage Borrower from the Mortgage Loan Reserve Funds and any extraordinary non-

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recurring items of income. Gross income shall not be diminished as a result of the Security Instruments or the creation of any intervening estate or interest in an Individual Property or any part thereof.

“Guarantor” shall mean, individually and collectively, as the context may require, ASOT, Multifamily Guarantor, Multifamily Parallel Guarantor, Multifamily Parallel Guarantor I and Multifamily Parallel Guarantor II and any Additional Guarantor.

“Guaranty” shall mean that certain Mezzanine A Guaranty of Recourse Obligations of Borrower, dated as of the date hereof, from Guarantor to Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Hazardous Materials” shall mean petroleum and petroleum products and compounds containing them, including gasoline, diesel fuel and oil; explosives; flammable materials; radioactive materials; polychlorinated biphenyls (“PCBs”) and compounds containing them; lead and lead-based paint; asbestos or asbestos-containing materials in any form that is or could become friable; underground or above-ground storage tanks, whether empty or containing any substance; toxic mold; any substance the presence of which on any Individual Property is prohibited by any federal, State or local authority; any substance that requires special handling; and any other material or substance now or in the future defined as a “hazardous substance,” “hazardous material,” “hazardous waste,” “toxic substance,” “toxic pollutant,” “contaminant,” “pollutant” or other words of similar import within the meaning of any Environmental Law.

“Improvements” shall mean the buildings, structures, fixtures, additions, enlargements, extensions, modifications, repairs, replacements and improvements now or hereafter erected or located on or which constitute a part of the applicable Individual Property.

“Indemnified Liabilities” shall have the meaning set forth in Section 10.13(b) hereof.

“Indemnified Parties” shall mean Lender, the Servicer, any Person in whose name the security interest created by the Pledge Agreement is or will have been recorded, Persons who may hold or acquire or will have held a full or partial interest in the Loan, the holders of any Securities, as well as custodians, trustees and other fiduciaries who hold or have held a full or partial interest in the Loan for the benefit of third parties, as well as the respective directors, officers, shareholders, partners, members, employees, agents, servants, representatives, contractors, subcontractors, Affiliates, subsidiaries, participants, successors and assigns of any and all of the foregoing (including but not limited to (a) any other Person who holds or acquires or will have held a participation or other full or partial interest in the Loan or the Properties, whether during the term of the Loan or as a part of or following a foreclosure of the Loan, and (b) successors by merger, consolidation or acquisition of all or a substantial portion of Lender’s assets and business).

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“Independent Director” shall have the meaning set forth in Section 4.1.35(b) hereof.

“Individual Property” shall mean each parcel of real property, the Improvements thereon and all Personal Property owned by the applicable Mortgage Borrower Entity and encumbered by a Security Instrument, together with all rights pertaining to such Property and Improvements, as more particularly described in the granting clause of the Security Instrument and referred to therein as the “Mortgaged Property”.

“Information” shall have the meaning set forth in Section 9.7.3(b) hereof.

“Insolvency Opinion” shall mean that certain bankruptcy non-consolidation opinion letter delivered by counsel for Borrower.

“Institutional Investor” shall mean, in connection with any proposed Transfer, any one of the following entities:  (a) a pension fund, pension trust or pension account that has total assets of at least $200,000,000, exclusive of its interest in Borrower, that are managed by an entity that controls or manages at least $400,000,000 of real estate equity assets, exclusive of equity interests in Borrower; (b) a pension fund advisor that controls or manages at least $400,000,000 of real estate equity assets, exclusive of equity interests in Borrower, immediately prior to such Transfer; (c) an insurance company that is subject to supervision by the insurance commission, or a similar official or agency, of a state or territory of the United States (including the District of Columbia), which has a net worth, as of a date no more than six (6) months prior to the date of such Transfer, of at least $400,000,000 and controls real estate equity assets of at least $400,000,000 immediately prior to such Transfer; (d) a corporation organized under the banking laws of the United States or any state or territory of the United States (including the District of Columbia) that has a combined capital and surplus of at least $200,000,000; (e) any entity (x) with a long-term unsecured debt rating from the Rating Agencies of at least Investment Grade or (y) (1) that owns or operates, together with its affiliates, ten (10) or more first class luxury residential apartment buildings totaling at least 2500 residential units, (2) that has a net worth as of a date no more than six (6) months prior to the date of such Transfer of at least $200,000,000 and (3) that controls real estate equity assets of at least $400,000,000 immediately prior to such Transfer; (f) a limited partnership, limited liability company or similar entity that shall have been organized for the purpose of facilitating investment in one or more U.S. real estate opportunities, provided such entity shall be sponsored, organized and/or controlled by one or more experienced and reputable syndicators, investment advisors and/or financial institutions and shall have received contributions or binding commitments for contributions of not less than $20,000,000 of investment capital; (g) any entity controlled by one or more entities each of which qualifies under at least one of clauses (a) through (f) above; (h) any individual, a citizen of and domiciled in the United States, having a net worth of at least $100,000,000 and satisfying Lender’s then-current criteria with respect to business character and experience, as reasonably determined by Lender, and free from any pending or existing bankruptcy, reorganization or insolvency proceedings in which such party is the debtor or any criminal charges or proceedings and shall not be, at the time of such Transfer or in

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the past, a litigant, plaintiff or defendant in any suit brought against or by Lender; or (i) a trust for the benefit of one or more individuals satisfying the criteria of clause (h) above.

“Insurance Premiums” shall mean the premiums due under the Policies.

“Insurance Proceeds” shall mean the net amount of all insurance proceeds after deduction of the reasonable costs and expenses (including, but not limited to, reasonable counsel fees), if any, in collecting same.

“Intercreditor Agreements” shall have the meaning set forth in Section 9.14 hereof.

“Interest Shortfall” shall have the meaning set forth in Section 2.3.1 hereof.

“Investment Grade” shall mean a rating of “BBB-” or its equivalent by the Rating Agencies.

“Investor” shall mean any purchaser, transferee, assignee, participant, Co-Lender or investor in all or any portion of the Loan or any Securities.

“Lease Term Sheet” shall have the meaning set forth in Section 5.1.17(a) hereof.

“Lease Termination Payments” shall mean all payments made to Mortgage Borrower in connection with the termination, cancellation, surrender, sale or other disposition of any Lease.

“Leases” shall have the meaning set forth in the Mortgage Loan Agreement.

“Legal Requirements” shall mean all federal, State, county, municipal and other governmental statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions of Governmental Authorities affecting the Collateral, Borrower, Mortgage Borrower, any Mortgage Principal’s general partner interest in the related Mortgage Borrower Entity, or any Individual Property or any part thereof, or the zoning, construction, use, alteration, occupancy or operation thereof, or any part 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 instruments, either of record or as to which Borrower has Actual Knowledge, at any time in force affecting such Individual Property or any part thereof, including, without limitation, any such covenants, agreements, restrictions and encumbrances which may (a) require repairs, modifications or alterations in or to such Individual Property or any part thereof, or (b) in any material way limit the use and enjoyment thereof.

“Lehman Entities” shall mean, collectively, Lehman Brothers Holdings Inc., a Delaware corporation, and any Person that, directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with Lehman Brothers Holdings Inc., a Delaware corporation.

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“Lender” shall mean Lehman Brothers Holdings Inc., a Delaware corporation, Bank of America, N.A., a national banking association and Barclays Capital Real Estate Finance Inc., a Delaware corporation, together with their respective successors and assigns.

“Lender’s Approval Extension Period” shall have the meaning set forth in Section 5.1.17(a) hereof.

“Letter of Credit” shall mean a clean, irrevocable, unconditional, transferable letter of credit payable on sight draft only, with an initial expiration date of not less than one (1) year and with automatic renewals for one (1) year periods (unless the obligation being secured by, or otherwise requiring the delivery of, such letter of credit is required to be performed at least thirty (30) days prior to the initial expiry date of such letter of credit), for which Borrower shall have no reimbursement obligation and which reimbursement obligation is not secured by (x) the Collateral or any other property pledged to secure the Note (y) the Mezzanine B Collateral or any other property pledged to secure the Mezzanine B Note or (z) the Property or any other property that secures the Mortgage Loan, in favor of Lender and entitling Lender to draw thereon in New York, New York or in such other city as Lender may reasonably determine, issued by Bank of America, N.A., JPMorgan Chase Bank or another domestic bank or the U.S. agency or branch of a foreign bank, provided such other bank (A) has a long-term unsecured debt rating at the time such letter of credit is delivered and throughout the term of such letter of credit, of not less than “AA-” or “Aa3”, as applicable, as assigned by the Rating Agencies or (B) if a Securitization has occurred, has a long-term debt rating that the applicable Rating Agencies have confirmed in writing will not, in and of itself, result in a downgrade, withdrawal or qualification of the initial, or, if higher, the then current ratings assigned in connection with such Securitization.

“Licenses” shall have the meaning set forth in Section 4.1.21 hereof.

“Lien” shall mean any mortgage, deed of trust, lien, pledge, hypothecation, assignment, security interest, or any other encumbrance, charge or transfer of, on or affecting Collateral, Borrower, Mortgage Borrower, any Mortgage Principal’s general partner interest in the related Mortgage Borrower Entity or any Individual Property, any portion thereof or any interest therein, including, without limitation, 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.

“Liquidation Event” shall have the meaning set forth in Section 2.3.2(a) hereof.

“LLC Agreement” shall have the meaning set forth in Section 4.1.35(d) hereof.

“Loan” shall mean the loan in the original principal amount of TWELVE MILLION ONE HUNDRED TWENTY-FIVE THOUSAND AND 00/100 DOLLARS ($12,125,000.00) made by Lender to Borrower pursuant to this Agreement and the other

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Loan Documents, as the same may hereafter be amended or split pursuant to the terms hereof.

“Loan Documents” shall mean, collectively, this Agreement, the Note, the Pledge Agreement the Environmental Indemnity, the Guaranty and all other documents executed and/or delivered in connection with the Loan.

“Loan Party” shall mean, individually and collectively, as the context requires, each Mortgage Borrower Entity, each Mortgage Principal, each Borrower Entity and each Principal.

“Loan to Value Ratio” shall mean, as of the date of its calculation, the ratio of (i) the sum of the respective outstanding principal amounts of the Loan, the Mezzanine B Loan and the Mortgage Loan as of the date of such calculation to (ii) the aggregate appraised value of the Properties (according to an Appraisal prepared not earlier than one (1) year prior to such date of calculation).

“Losses” shall mean any and all claims, suits, liabilities (including, without limitation, strict liabilities), actions, proceedings, obligations, debts, damages, losses, costs, expenses, fines, penalties, charges, fees, expenses, judgments, awards, amounts paid in settlement of whatever kind or nature (including, but not limited to, reasonable out-of-pocket attorneys’ fees and other costs of defense).

“LP Act” shall have the meaning set forth in Section 4.1.35(e) hereof.

“LP Agreement” shall have the meaning set forth in Section 4.1.35(e) hereof.

“Major Lease” shall mean (i) any Lease relating to commercial space which, individually or together with all other Leases to the same tenant and to all Affiliates of such tenant covers more than 5,000 rentable square feet at any Individual Property, in the aggregate, (ii) any Lease relating to residential space which, individually or together with all other Leases to the same tenant and to all Affiliates of such tenant covers more than ten percent (10%) of the total number of residential units at any Individual Property, (iii) any Lease for the operation of any parking garage or facility, or (iv) any Lease which is with an Affiliate of Borrower.

“Management Agreement” shall mean, with respect to any Individual Property, a management agreement between the applicable Mortgage Borrower Entity and a Qualified Manager, pursuant to which such Qualified Manager is to provide management, leasing and other services with respect to such Individual Property, which management agreement shall be reasonably acceptable to Lender in form and substance; provided, however, if such management agreement shall be entered into after a Securitization, then Lender, at its option, may condition its approval upon receiving confirmation from the applicable Rating Agencies that such management agreement will not result in a downgrade, withdrawal or qualification of the then current rating of the Securities or any class thereof. Concurrently with the execution and delivery of any Management Agreement with a Qualified Manager, Lender shall be provided, at Borrower’s expense, with an Agreement Regarding Management Agreement.

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“Manager” shall mean a Qualified Manager who is managing an Individual Property in accordance with the terms and conditions of this Agreement.

“Material Adverse Effect” shall mean a material adverse effect on (i) any Individual Property, (ii) the Collateral, (iii) any Mortgage Principal’s general partner interest in the related Mortgage Borrower Entity, (iv) the business, profits, prospects, management, operations or condition (financial or otherwise) of Borrower, Mortgage Borrower, Guarantor, any Principal, the Collateral, any Mortgage Principal’s general partner interest in the related Mortgage Borrower Entity or any Individual Property, (v) the enforceability, validity, perfection or priority of the lien of this Agreement, the Note, the Pledge Agreement or the other Loan Documents, or (vi) the ability of Borrower to perform its obligations under this Agreement, the Note, the Pledge Agreement or the other Loan Documents.

“Material Agreement” means all agreements, other than the Management Agreement and the Leases, entered into by any Loan Party affecting or relating to the Property, the Collateral, any Mortgage Principal’s general partner interest in the related Mortgage Borrower Entity or any other direct or indirect ownership interest of a Loan Party in the Mortgage Borrower or Borrower requiring the payment of more than $1,000,000, individually, in payments or liability in any annual period and which is not cancelable without penalty or premium on no more than thirty (30) days notice.

“Material Alteration” shall have the meaning set forth in Section 5.1.20 hereof.

“Material Alteration Security” shall have the meaning set forth in Section 5.1.20 hereof.

“Maturity Date” shall mean November 1, 2017, or such other date on which the final payment of the principal of the Note becomes due and payable as therein or herein provided, whether at such stated maturity date, by declaration of acceleration, or otherwise.

“Maximum Legal Rate” shall mean the maximum non-usurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the indebtedness evidenced by the Note and as provided for herein or the other Loan Documents, under the laws of such State or States whose laws are held by any court of competent jurisdiction to govern the interest rate provisions of the Loan.

“Member” shall have the meaning set forth in Section 4.1.35(d) hereof.

“Mezzanine B Borrower” shall have the meaning ascribed to the term “Borrower” in the Mezzanine B Loan Agreement.

“Mezzanine B Borrower Entity” shall have the meaning ascribed to the term “Borrower Entity” in the Mezzanine B Loan Agreement.

“Mezzanine B Collateral” shall have the meaning ascribed to the term “Collateral” set forth in the Mezzanine B Loan Agreement.

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“Mezzanine B Debt Service” shall mean, with respect to any period, interest payments due and payable under the Mezzanine B Note for such period.

“Mezzanine B Lender” shall mean Lehman Brothers Holdings Inc., a Delaware corporation, Bank of America, N.A., a national banking association and Barclays Capital Real Estate Finance Inc., a Delaware corporation, together with their respective successors and assigns.

“Mezzanine B Loan” shall mean that certain loan in the original principal amount of $34,594,951.49 made by Mezzanine B Lender to Mezzanine B Borrower on the date hereof pursuant to the Mezzanine B Loan Agreement, as the same may be amended or split pursuant to the terms of the Mezzanine B Loan Documents.

“Mezzanine B Loan Agreement” shall mean that certain Mezzanine B Loan Agreement, dated as of the date hereof, between Mezzanine B Borrower and Mezzanine B Lender, as the same may be amended, restated, supplemented or otherwise modified from time to time.

“Mezzanine B Loan Documents” shall mean, collectively, all documents or instruments evidencing, securing or guaranteeing the Mezzanine B Loan, including, without limitation, the Mezzanine B Loan Agreement and the Mezzanine B Note.

“Mezzanine B Note” shall mean that certain Mezzanine B Promissory Note, dated as of the date hereof, given by Mezzanine B Borrower to Mezzanine B Lender in the maximum principal amount of $34,594,951.49, as the same may be amended, restated, supplemented or otherwise modified from time to time.

“Mezzanine B Principal” shall have the meaning ascribed to the term “Principal” in the Mezzanine B Loan Agreement.

“Mezzanine Loan Intercreditor Agreement” shall mean that certain Intercreditor Agreement, dated as of the date hereof, between and among Lender, Mezzanine B Lender and Mortgage Lender.

“Monthly Debt Service Payment Amount” shall mean the amount of principal and interest due and payable on each Payment Date pursuant to the Note and Section 2.2 hereof.

“Mortgage Borrower” shall have the meaning ascribed to the term “Borrower” and “IDOT Guarantor” in the Mortgage Loan Agreement.

“Mortgage Borrower Entity” shall have the meaning ascribed to the term “Borrower” and “IDOT Guarantor” in the Mortgage Loan Agreement.

“Mortgage Borrower Formation Agreement” shall mean, with respect to each Mortgage Borrower Entity, the Limited Partnership Agreement, Limited Liability Company Agreement or other similar entity formation agreement of such Mortgage Borrower Entity.

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“Mortgage Lender” shall mean Lehman Brothers Holdings Inc., a Delaware corporation, Bank of America, N.A., a national banking association and Barclays Capital Real Estate Inc., a Delaware corporation, together with their respective successors and assigns.

“Mortgage Loan” shall mean that certain loan made by Mortgage Lender to Mortgage Borrower in the original principal amount of $493,329,410.00.

“Mortgage Loan Agreement” shall mean that certain Master Credit Facility Agreement, dated as of the Closing Date, between Mortgage Borrower and Mortgage Lender, as the same may be amended, restated, supplemented or otherwise modified from time to time.

“Mortgage Loan Debt Service” shall have the meaning ascribed to the term “Debt Service” in the Mortgage Loan Agreement.

“Mortgage Loan Documents” shall mean, collectively, the Mortgage Note, the Mortgage Loan Agreement, the Security Instrument, and any and all other documents defined as “Loan Documents” in the Mortgage Loan Agreement, as amended, restated, replaced, supplemented or otherwise modified from time to time.

“Mortgage Loan Event of Default” shall have the meaning ascribed to the term “Event of Default” in the Mortgage Loan Agreement.

“Mortgage Loan Reserve Funds” shall mean the escrow or reserve funds established under the Mortgage Loan Documents.

“Mortgage Note” shall have the meaning ascribed to the term “Note” in the Mortgage Loan Agreement.

“Mortgage Principal” shall mean, with respect to each Mortgage Borrower Entity that is a limited partnership, the general partner of such Mortgage Borrower Entity.

“Mortgage Title Insurance Policy” shall have the meaning ascribed to the term “Title Insurance Policies” in the Mortgage Loan Agreement.

“Moody’s” shall mean Moody’s Investors Service, Inc.

“Multifamily Guarantor” shall mean Tishman Speyer Archstone-Smith Multifamily Guarantor, L.P., a Delaware limited partnership.

“Multifamily Parallel Guarantor” shall mean Tishman Speyer Archstone-Smith Multifamily Parallel Guarantor, L.L.C., a Delaware limited liability company.

“Multifamily Parallel Guarantor I” shall mean Tishman Speyer Archstone-Smith Multifamily Parallel Guarantor I, L.L.C., a Delaware limited liability company.

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“Multifamily Parallel Guarantor II” shall mean Tishman Speyer Archstone-Smith Multifamily Parallel Guarantor II, L.L.C., a Delaware limited liability company.

“Municipal Violations” shall have the meaning set forth in Section 4.1.9 hereof.

“Net Cash Flow” shall mean, for any period, the amount obtained by subtracting Operating Expenses and Capital Expenditures for such period from Gross Income from Operations for such period.

“Net Cash Flow After Debt Service” shall mean, for any period, the amount obtained by subtracting Debt Service and Mortgage Loan Debt Service for such period from Net Cash Flow for such period.

“Net Liquidation Proceeds After Debt Service” shall mean, with respect to any Liquidation Event, all amounts paid to or received by or on behalf of any Mortgage Borrower Entity in connection with such Liquidation Event, including, without limitation, proceeds of any sale, refinancing or other disposition or liquidation, less (i) in the event of a Liquidation Event consisting of a Casualty or Condemnation, Borrower’s, Mortgage Borrower’s, Lender’s and/or Mortgage Lender’s reasonable out-of-pocket costs incurred in connection with the recovery thereof, (ii) in the event of a Liquidation Event consisting of a Casualty or Condemnation, the costs incurred by Mortgage Borrower in connection with a restoration of all or any portion of the applicable Individual Property made in accordance with the Mortgage Loan Documents, (iii) in the event of a Liquidation Event consisting of a Casualty or Condemnation or a Transfer, amounts required or permitted to be deducted therefrom and amounts paid pursuant to the Mortgage Loan Documents to Mortgage Lender, (iv) in the event of a Liquidation Event consisting of a Casualty or Condemnation, the excess Insurance Proceeds or Condemnation Proceeds not used for the Restoration of the applicable Individual Property which are paid to Mortgage Borrower, (v) in the case of a foreclosure sale, disposition or transfer of an Individual Property in connection with realization thereon following a Mortgage Loan Event of Default, reasonable and customary out-of-pocket costs and expenses of sale or other disposition (including attorneys’ fees and brokerage commissions), (vi) intentionally omitted, (vii) intentionally omitted, (viii) in the case of a foreclosure sale relating to the Mortgage Loan, such costs and expenses incurred by Mortgage Lender under the Mortgage Loan Documents as Mortgage Lender shall be entitled to receive reimbursement for under the terms of the Mortgage Loan Documents, (ix) intentionally omitted, (x) intentionally omitted, (xi) in the case of a refinancing of the Mortgage Loan, such costs and expenses (including attorneys’ fees) of such refinancing, (xii) intentionally omitted, (xiii) intentionally omitted, and (xiv) the amount of any prepayments required pursuant to the Mortgage Loan Documents and/or the Loan Documents in connection with such Liquidation Event.

“Net Operating Income” shall mean, for any period, the amount obtained by subtracting Operating Expenses for such period from Gross Income from Operations for such period.

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“Net Proceeds” shall mean the Insurance Proceeds or the Condemnation Proceeds, as applicable.

“Note” shall mean that certain Mezzanine A Promissory Note of even date herewith in the original principal amount of TWELVE MILLION ONE HUNDRED TWENTY-FIVE THOUSAND AND 00/100 DOLLARS ($12,125,000.00), made by Borrower in favor of Lender, as the same may be amended, restated, replaced, extended, renewed, supplemented, severed, split, or otherwise modified from time to time in accordance with the applicable provisions of this Agreement.

“Obligations” shall mean Borrower’s obligations to pay the Debt and perform its obligations under the Note, this Agreement and the other Loan Documents.

“Officer’s Certificate” shall mean a certificate delivered to Lender by Borrower which is signed by a Responsible Officer of Borrower, in his or her capacity as an officer of Borrower and not in his or her individual capacity.

“Operating Expenses” shall mean the total of all costs and expenses, computed in accordance with GAAP, of whatever kind relating to the operation, maintenance, use and management of the Properties that are incurred on a regular monthly or other periodic basis, including without limitation, utilities, ordinary repairs and maintenance, insurance premiums, license fees, Taxes and Other Charges, advertising expenses, management fees, accounting, legal and other professional fees (if properly allocated to the Properties and the operation and management thereof), payroll and related taxes, computer processing charges, operational equipment or other lease payments, and other similar costs, but excluding depreciation, Debt Service, Capital Expenditures and contributions to the Reserve Funds, if applicable, or the Mortgage Loan Reserve Funds.

“Organizational Documents” shall mean (i) with respect to a corporation, such Person’s certificate of incorporation and by laws, and any shareholder agreement, voting trust or similar arrangement applicable to any of such Person’s authorized shares of capital stock or other organizational document affecting the rights of holders of such stock, (ii) with respect to a partnership, such Person’s certificate of limited partnership, partnership agreement, voting trusts or similar arrangements applicable to any of its partnership interests or other organizational document affecting the rights of holders of partnership interests, and (iii) with respect to a limited liability company, such Person’s certificate of formation, limited liability company agreement or other organizational document affecting the rights of holders of limited liability company interests. In each case, “Organizational Documents” shall include any shareholders or other agreement among any of the owners of the entity in question.

“Other Charges” shall mean, if and to the extent applicable with respect to any Individual Property, maintenance charges, impositions other than Taxes, and any other charges, including, without limitation, vault charges and license fees for the use of vaults, chutes and similar areas adjoining such Individual Property, now or hereafter levied or assessed or imposed against such Individual Property or any part thereof.

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“Owner’s Title Policy” shall mean that certain ALTA extended coverage owner’s policy of title insurance issued in connection with the closing of the Mortgage Loan insuring the Mortgage Borrower as the owner of the Property.

“Ownership Interest” means with respect to any Person, any ownership interest in such Person, direct or indirect, contingent or fixed, at any level or any tier, of any nature whatsoever, whether in the form of a partnership interest, stock interest, membership interest, equitable interest, beneficial interests, profit interest, loss interest, voting rights, control rights, management rights or otherwise.

“Participant” shall have the meaning set forth in Section 9.7.2(i) hereof.

“Partner” shall have the meaning set forth in Section 4.1.35(e) hereof.

“Payment Date” shall mean the first (1 ^st ) day of each calendar month during the term of the Loan or, if such day is not a Business Day, the immediately succeeding Business Day.

“Permitted Debt” shall have the meaning set forth in Section 4.1.35(a)(vii) hereof.

“Permitted Encumbrances” shall mean, collectively, (a) the Liens and security interests created by the Loan Documents and the Mortgage Loan Documents, (b) all Liens, encumbrances and other matters disclosed in the Mortgage Title Insurance Policy relating to any Individual Property or any part thereof, (c) Liens, if any, for Taxes imposed by any Governmental Authority not yet delinquent or being contested in good faith and by appropriate proceedings in accordance with the applicable provisions of the Loan Documents or the Mortgage Loan Documents, (d) other Liens that are being contested in good faith and by appropriate proceedings in accordance with the applicable provisions of the Loan Documents or the Mortgage Loan Documents, (e) the rights of the lessors or secured parties under any Equipment Lease Agreements permitted under the Mortgage Loan Agreement, and any financing statements filed as evidence of such lessors’ or secured parties’ rights, (f) easements, rights-of-way, restrictions, encroachments, and other minor defects or irregularities in title, in each case, which are necessary for the operation of the Property and do not or would not have a Material Adverse Effect, and (g) such other title and survey exceptions as Mortgage Lender has approved or may approve in writing in Mortgage Lender’s sole discretion.

“Permitted Investments” shall mean any one or more of the following obligations or securities (including those issued by Servicer, the trustee under any Securitization or any of their respective Affiliates) acquired at a purchase price of not greater than par, and payable on demand or having a maturity date not later than the Business Day immediately prior to the date upon which such funds are required to be drawn and meeting one of the appropriate standards set forth below:

(i)            obligations of, or obligations fully guaranteed as to payment of principal and interest by, the United States or any agency or instrumentality thereof provided such obligations are backed by the full faith and credit of the United States of America including, without limitation, obligations of: the U.S. Treasury (all direct or fully

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guaranteed obligations), the Farmers Home Administration (certificates of beneficial ownership), the General Services Administration (participation certificates), the U.S. Maritime Administration (guaranteed Title XI financing), the Small Business Administration (guaranteed participation certificates and guaranteed pool certificates), the U.S. Department of Housing and Urban Development (local authority bonds) and the Washington Metropolitan Area Transit Authority (guaranteed transit bonds); provided, however , that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(ii)           Federal Housing Administration debentures;

(iii)          obligations of the following United States government sponsored agencies: Federal Home Loan Mortgage Corp. (debt obligations), the Farm Credit System (consolidated systemwide bonds and notes), the Federal Home Loan Banks (consolidated debt obligations), the Federal National Mortgage Association (debt obligations), the Financing Corp. (debt obligations), and the Resolution Funding Corp. (debt obligations); provided, however , that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(iv)          federal funds, unsecured certificates of deposit, time deposits, bankers’ acceptances and repurchase agreements with maturities of not more than 365 days of any bank, the short term obligations of which at all times are rated in the highest short term rating category by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency in the highest short term rating category and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the then current ratings assigned to the Securities); provided, however , that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(v)           fully Federal Deposit Insurance Corporation insured demand and time deposits in, or certificates of deposit of, or bankers’ acceptances with maturities of not more than 365 days and issued by, any bank or trust company, savings and loan association or savings bank, the short term obligations of which at all times are rated in the highest short term rating category by each Rating Agency (or, if not rated by all

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Rating Agencies, rated by at least one Rating Agency in the highest short term rating category and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the then current ratings assigned to the Securities); provided, however , that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(vi)          debt obligations with maturities of not more than 365 days and at all times rated by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the then current ratings assigned to the Securities) in its highest long term unsecured rating category; provided, however , that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(vii)         commercial paper (including both non interest bearing discount obligations and interest-bearing obligations payable on demand or on a specified date not more than one year after the date of issuance thereof) with maturities of not more than 365 days and that at all times is rated by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the then current ratings assigned to the Securities) in its highest short term unsecured debt rating; provided, however , that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;

(viii)        units of taxable money market funds, with maturities of not more than 365 days and which funds are regulated investment companies, seek to maintain a constant net asset value per share and invest solely in obligations backed by the full faith and credit of the United States, which funds have the highest rating available from each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or

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withdrawal of the then current ratings assigned to the Securities) for money market funds; and

(ix)           any other security, obligation or investment which has been approved as a Permitted Investment in writing by (a) Lender and (b) each Rating Agency, as evidenced by a written confirmation that the designation of such security, obligation or investment as a Permitted Investment will not, in and of itself, result in a downgrade, qualification or withdrawal of the then current ratings assigned to the Securities by such Rating Agency;

provided, however , that no obligation or security shall be a Permitted Investment if (A) such obligation or security evidences a right to receive only interest payments or (B) the right to receive principal and interest payments on such obligation or security are derived from an underlying investment that provides a yield to maturity in excess of 120% of the yield to maturity at par of such underlying investment.

“Permitted Transferee” shall have the meaning provided in Section 5.2.11(a)(ii) hereof.

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

“Personal Property” shall mean the machinery, equipment, fixtures (including, but not limited to, the heating, air conditioning, plumbing, lighting, communications and elevator fixtures, inventory and goods) and other property of every kind and nature whatsoever owned by Mortgage Borrower, or in which Mortgage Borrower has or shall have an interest, now or hereafter located upon the applicable Individual Property, or appurtenant thereto, and usable in connection with the present or future operation and occupancy of the applicable Individual Property, and the building equipment, materials and supplies of any nature whatsoever owned by Mortgage Borrower, or in which Mortgage Borrower has or shall have an interest, now or hereafter located upon the applicable Individual Property, or appurtenant thereto, or usable in connection with the present or future operation and occupancy of the applicable Individual Property.

“Plan” shall mean an employee benefit plan (as defined in section 3(3) of ERISA) whether or not subject to ERISA or a plan or other arrangement within the meaning of Section 4975 of the Code.

“Plan Assets” shall mean assets of a Plan within the meaning of section 29 C.F.R., Section 2510.3-101 or similar law.

“Pledge” shall mean, with respect to any Restricted Party, a voluntary or involuntary pledge of a direct or indirect legal or beneficial interest in such Restricted Party.

“Pledge Agreement” shall mean that certain Mezzanine A Pledge and Security Agreement dated as of the Closing Date, executed and delivered by Borrower to Lender

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as security for the Loan, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Policies” shall have the meaning ascribed to the term “Insurance Policies” as set forth in the Mortgage Loan Agreement.

“Prepayment Consideration” shall mean the greater of:

(i)            one percent (1%) of the amount of principal being prepaid; or

(ii)           the product obtained by multiplying:

(A)          the amount of principal being prepaid,

by

(B)                                 the difference obtained by subtracting from the Applicable Interest Rate the yield rate (the “Yield Rate”) on the                     % U.S. Treasury Security due                                  (the “Specified U.S. Treasury Security”), on the twenty-fifth (25 ^th ) Business Day preceding (x) the intended date of prepayment, or (y) the date Lender accelerates the Loan or otherwise accepts a prepayment pursuant to this Agreement, as the Yield Rate is reported in The Wall Street Journal,

by

(C)           the present value factor calculated using the following formula:

[r =          Yield Rate

 n =         the number of months remaining between (1) either of the following: (x) in the case of a voluntary prepayment, the date on which the prepayment is made, or (y) in any other case, the date on which Lender accelerates the unpaid principal balance of the Note and (2) the Prepayment Consideration Period End Date]

In the event that no Yield Rate is published for the Specified U.S. Treasury Security, then the nearest equivalent non-callable U.S. Treasury security having a maturity date closest to the Prepayment Consideration Period End Date shall be selected at Lender’s discretion. If the publication of such Yield Rates in The Wall Street Journal is discontinued, Lender shall determine such Yield Rates from another source selected by Lender.

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No Prepayment Consideration shall be payable with respect to any prepayment made after the Prepayment Consideration Period End Date.

“Prepayment Consideration Period End Date” shall mean the last day of April, 2017.

“Principal” shall mean, with respect to any Borrower Entity, the general partner of such Borrower Entity, if such Borrower Entity is a partnership, or the managing member of such Borrower Entity, if such Borrower Entity is a limited liability company that does not comply with the provisions of Sections 4.1.35(b), (c) and (d) hereof, together with its successors and assigns.

“Prohibited Person” shall mean any Person:

(a)           listed in the Annex to, or otherwise subject to the provisions of, the Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, and relating to Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (the “Executive Order”);

(b)           that is owned or controlled by, or acting for or on behalf of, any person or entity that is listed to the Annex to, or is otherwise subject to the provisions of, the Executive Order;

(c)           with whom Lender is prohibited from dealing or otherwise engaging in any transaction by the Executive Order;

(d)           who has been identified by any U.S. Governmental Authority having jurisdiction with respect to such matters as a Person who commits, threatens or conspires to commit or supports “terrorism” as defined in the Executive Order;

(e)           that is named as a “specially designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control at its official website, http://www.treas.gov.ofac/t11sdn.pdf or at any replacement website or other replacement official publication of such list; or

(f)            who is an Affiliate of a Person listed above.

“Projections” shall have the meaning set forth in Section 9.7.3(b) hereof.

“Properties” shall mean, collectively, the Individual Properties which are subject to the terms of the Mortgage Loan Documents, in each case if and to the extent that the same is encumbered by a Security Instrument and has not been released therefrom pursuant to the terms hereof.

“Property” shall mean, as the context may require, the Properties or an Individual Property.

“Provided Information” shall have the meaning set forth in Section 9.1(a) hereof.

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“Qualified Manager” shall mean (a) TSP or an Affiliate thereof, (b) Archstone Property Management LLC, a Delaware limited liability company, (c) Archstone Property Management (California) Incorporated, a Delaware corporation, (d) a reputable and experienced professional management organization which manages, together with its Affiliates, no fewer than ten (10) first class luxury residential apartment buildings of a type and size similar to the Properties, totaling in the aggregate no less than 2500 residential units; provided, however, that the employment of such organization described in this clause (b) as manager of the Properties shall be conditional, (i) if it shall occur prior to the occurrence of a Securitization, upon approval of such employment by Lender, such approval not to be unreasonably withheld, and (ii) if it shall occur after the occurrence of a Securitization, upon Lender having received written confirmation from the Rating Agencies that the employment of such manager will not result in a downgrade, withdrawal or qualification of the initial, or if higher, then current ratings of the Securities.

“Rating Agency” shall mean each of S&P, Moody’s, and Fitch, and any other nationally recognized statistical rating agency which has been selected by Lender and, in each case, has rated the Securities.

“Rating Agency Confirmation” means each of the Rating Agencies shall have confirmed in writing that the occurrence of the event with respect to which such Rating Agency Confirmation is sought shall not result in a downgrade, qualification or withdrawal of the initial, or, if higher, the then current ratings assigned to the Securities in connection with a Securitization. In the event that no Securities are outstanding or the Loan is not part of a Securitization, any action that would otherwise require a Rating Agency Confirmation shall require the consent of the Lender, which consent shall not be unreasonably withheld or delayed.

“Recourse Events” shall have the meaning set forth in Section 9.4(b) hereof.

“Register” shall have the meaning set forth in Section 9.7.2(h) hereof.

“Release” of any Hazardous Materials shall mean any release, deposit, discharge, emission, leaking, spilling, seeping, migrating, injecting, pumping, pouring, emptying, escaping, dumping, disposing or other movement of Hazardous Materials.

“Release Price” shall mean an amount equal to:

(i)            if the release price for such Individual Property under the Mortgage Loan is determined to be the allocated loan amount for such Individual Property under the Mortgage Loan, the Allocated Loan Amount for the applicable Individual Property to be released; and

(ii)           if the release price for such Individual Property under the Mortgage Loan is determined to be greater than the allocated loan amount for such Individual Property under the Mortgage Loan, an amount equal to (x) the quotient obtained by dividing (A) the release price for such Individual Property under the Mortgage Loan by (B) the outstanding principal balance of the Mortgage Loan immediately prior to the application

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of such release price to the prepayment of the Mortgage Loan, multiplied by (y) the outstanding principal balance of the Loan immediately prior to the application of the Release Price determined hereunder to the prepayment of the Loan.

In no event shall the Release Price be less than the Allocated Loan Amount for the applicable Individual Property to be released.

“Release Property” shall have the meaning set forth in Section 2.9 hereof.

“Released Individual Property” shall have the meaning set forth in Section 2.6(j) hereof.

“Renewal Lease” shall have the meaning set forth in Section 5.1.17(a) hereof.

“Rents” shall mean the rents, additional rents, payments in connection with any termination, cancellation or surrender of any Lease, revenues, issues and profits (including the oil and gas or other mineral royalties and bonuses) from the applicable Individual Property whether paid or accruing before or after the filing by or against Mortgage Borrower of any petition for relief under the Bankruptcy Code and the proceeds from the sale or other disposition of the Leases.

“Reorganization Proceeding” shall have the meaning set forth in Section 9.4 hereof.

“Request” shall have the meaning set forth in the Mortgage Loan Agreement.

“Reserve Funds” shall mean, collectively, the escrow or reserve funds established pursuant to this Agreement or any of the other Loan Documents.

“Responsible Officer” means with respect to any Person, the chairman of the board, president, chief operating officer, chief financial officer, treasurer or vice president-finance of such Person.

“Restoration” shall mean the repair and restoration of an Individual Property after a Casualty or Condemnation as nearly as possible to the condition the Individual Property was in immediately prior to such Casualty or Condemnation, with such alterations as may be approved by Lender to the extent required hereunder.

“Restricted Party” shall mean each Guarantor, each Borrower Entity, each Principal, each Mortgage Borrower Entity, each Mortgage Principal, each Mezzanine B Borrower Entity, each Mezzanine B Principal or any Affiliated Manager or any direct or indirect shareholder, partner, member or non member manager of any Guarantor, any Principal, any Mortgage Borrower, any Mortgage Principal, any Mezzanine B Borrower or any Mezzanine B Principal.

“S&P” shall mean Standard & Poor’s Ratings Services, a division of McGraw-Hill, Inc.

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“Sale” shall mean, with respect to any Restricted Party, a voluntary or involuntary sale, conveyance or transfer of a direct or indirect legal or beneficial interest in such Restricted Party.

“Securities” shall have the meaning set forth in the first paragraph of Section 9.1 hereof.

“Securities Act” shall have the meaning set forth in Section 9.2 hereof.

“Securitization” shall have the meaning set forth in the first paragraph of Section 9.1 hereof.

“Security Deposits” shall have the meaning set forth in Section 5.1.17(e) hereof.

“Security Instrument” shall mean, with respect to any Individual Property, that certain first priority Multifamily Mortgage, Deed of Trust or Deed to Secure Debt, Assignment of Leases and Rents and Security Agreement or other similar security instrument, dated as of the date hereof, executed and delivered by the applicable Mortgage Borrower Entity as security for the Mortgage Loan and encumbering such Individual Property, as the same may hereafter be amended, restated, replaced, supplemented or otherwise modified from time to time.

“Servicer” shall have the meaning set forth in Section 9.3 hereof.

“Servicing Agreement” shall have the meaning set forth in Section 9.3 hereof.

“Severed Loan Documents” shall have the meaning set forth in Section 8.2(c) hereof.

“Special Limited Partner” shall have the meaning set forth in Section 4.1.35(e) hereof.

“Special Member” shall have the meaning set forth in Section 4.1.35(d) hereof.

“State” shall mean, with respect to an Individual Property, the State or Commonwealth in which such Individual Property or any part thereof is located, or the District of Columbia with respect to an Individual Property located therein.

“Substitute Allocated Loan Amount” shall have the meaning set forth in Section 2.9 hereof.

“Substitute Property” shall have the meaning set forth in Section 2.9 hereof.

“Substitute Properties” shall have the meaning set forth in Section 2.9 hereof.

“Survey” shall have the meaning set forth in Section 4.1.13 hereof.

“Syndication” shall have the meaning set forth in Section 9.7.2(a) hereof.

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“Taxes” shall mean all real estate and personal property taxes, assessments, water rates or sewer rents, now or hereafter levied or assessed or imposed against any Individual Property or part thereof.

“Tenant” shall mean the tenant under any Lease.

“Threshold Amount” shall have the meaning set forth in Section 5.1.20 hereof.

“Tishman Speyer Control Persons” shall mean, as of any applicable determination date, (i) any of Robert V. Tishman and/or Jerry I. Speyer and/or Robert J. Speyer, their spouses, descendants, heirs, legatees or devisees; (ii) the Managing Directors of the general partner of Multifamily Guarantor or Multifamily Parallel Guarantor on such determination date who were either serving as such on the date hereof or have been employed by the general partner of Multifamily Guarantor or Multifamily Parallel Guarantor for at least five (5) years prior to such determination date; (iii) the Managing Directors of TSP on such determination date who were either serving as such on the date hereof or have been employed by TSP for at least five (5) years prior to such determination date; or (iv) any Person directly or indirectly controlled by one or more of the persons described in clauses (i) through (iii) above.

“Trade Payables” shall mean the Indebtedness permitted to be incurred by Mortgage Borrower in connection with the operation of the Mortgaged Properties pursuant to Section 7.03 of the Mortgage Loan Agreement.

“Transfer” shall have the meaning set forth in Section 5.2.10(a) hereof.

“TSP” shall mean Tishman Speyer Properties, L.P., a New York limited partnership.

“UCC” or “Uniform Commercial Code” shall mean the Uniform Commercial Code as in effect in the State in which an Individual Property is located.

“UCC Financing Statements” shall mean the UCC financing statements delivered in connection with the Pledge Agreement and the other Loan Documents and filed in the applicable filing offices.

“UCC Title Insurance Policy” shall mean, with respect to the Collateral, a UCC title insurance policy in form acceptable to Lender issued with respect to the Collateral and insuring the lien of the Pledge Agreement upon the Collateral.

“U.S. Obligations” shall mean direct non-callable obligations of the United States of America or other obligations which are “government securities” within the meaning of Section 2(a)(16) of the Investment Company Act of 1940.

“USPAP” shall mean the Uniform Standard of Professional Appraisal Practice.

“U.S. Tax” means any present or future tax, assessment or other charge or levy imposed by or on behalf of the United States of America or any taxing authority thereof.

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Section 1.2             Principles of Construction.

All references to “Sections” and “Schedules” are to Sections and Schedules in or to this Agreement unless otherwise specified. All uses of the word “including” shall mean “including, without limitation” unless the context shall indicate otherwise. Unless otherwise specified, the words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. Unless otherwise specified, all meanings attributed to defined terms herein shall be equally applicable to both the singular and plural forms of the terms so defined. All covenants, representations, terms and conditions contained in this Agreement applicable to “Borrower” shall be deemed to apply to each Borrower Entity individually. It shall constitute an Event of Default if any covenant, representation, term or condition contained in this Agreement is breached (beyond any applicable notice and cure periods) with respect to any individual Borrower Entity. With respect to terms defined by cross-reference to the Mortgage Loan Documents, such defined terms shall have the respective definitions set forth for such terms in the Mortgage Loan Documents as of the date hereof, and no modifications to the Mortgage Loan Documents shall have the effect of changing such definitions for the purpose of this Agreement unless Lender expressly agrees that such definitions as used in this Agreement have been revised or Lender consents to the modification documents. With respect to any provisions incorporated by reference herein from the Mortgage Loan Documents, such provisions shall be deemed a part of this Agreement notwithstanding the fact that the Mortgage Loan shall no longer be effective for any reason. The phrase “Borrower shall cause Mortgage Borrower to” or “Borrower shall not cause or permit Mortgage Borrower to” (or phrases of similar meaning), as used herein, shall mean Borrower shall cause Mortgage Borrower to so act or not to so act, as applicable (or that Borrower shall permit Mortgage Borrower to so act or not to so act, as applicable).

II.            GENERAL TERMS

Section 2.1             Loan Commitment; Disbursement to Borrower.

2.1.1        Agreement to Lend and Borrow.

Subject to and upon the terms and conditions set forth herein, Lender hereby agrees to make and Borrower hereby agrees to accept the Loan on the Closing Date.

2.1.2        Single Disbursement to Borrower.

Borrower may request and receive only one borrowing hereunder in respect of the Loan and any amount borrowed and repaid hereunder in respect of the Loan may not be reborrowed.

2.1.3        The Note, Pledge Agreement and Loan Documents.

The Loan shall be evidenced by the Note and secured by the Pledge Agreement and the other Loan Documents.

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2.1.4        Use of Proceeds.

Borrower shall use the proceeds of the Loan to (a) pay costs and expenses incurred in connection with the closing of the Loan, (b) to make a capital contribution to Mortgage Borrower in order for Mortgage Borrower to (1) repay and discharge any existing loans relating to the Properties, (2) pay all past due Basic Carrying Costs, if any, with respect to the Properties, (3) make deposits into the Mortgage Loan Reserve Funds on the Closing Date in the amounts provided in the Mortgage Loan Documents, (4) pay costs and expenses incurred in connection with the closing of the Mortgage Loan, or (5) fund any working capital requirements of the Properties and/or working capital reserves of Mortgage Borrower or (c) fund any working capital reserves of Borrower. The balance, if any, shall be distributed by Borrower to the Persons owning the ownership interests in Borrower.

Section 2.2             Interest; Loan Payments; Late Payment Charge.

2.2.1        Payments.

(a)           Interest on the outstanding principal balance of the Note shall accrue from the Closing Date to but excluding the Maturity Date at the Applicable Interest Rate.

(b)           All payments and other amounts due under the Note, this Agreement and the other Loan Documents shall be made without any setoff, defense or irrespective of, and without deduction for, counterclaims.

2.2.2        Interest Calculation.

Interest on the outstanding principal balance of the Note shall be calculated by multiplying (a) the actual number of days elapsed in the period for which the calculation is being made by (b) a daily rate equal to the Applicable Interest Rate divided by three hundred sixty (360) by (c) the outstanding principal balance of the Note.

2.2.3        Payments Before Maturity Date.

Monthly installments of interest only, in arrears, shall be paid on each Payment Date commencing on December 1, 2007, and on each subsequent Payment Date thereafter to but not including the Maturity Date. Interest on the outstanding principal amount of the Loan to but not including October 31, 2007, shall be paid by Borrower on the Closing Date.

2.2.4        Intentionally Omitted .

2.2.5        Payment on Maturity Date.

Borrower shall pay to Lender on the Maturity Date the outstanding principal balance, all accrued and unpaid interest and all other amounts due hereunder and under the Note, the Pledge Agreement and the other Loan Documents.

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2.2.6        Payments after Default.

Upon the occurrence and during the continuance of an Event of Default, (a) interest on the outstanding principal balance of the Loan and, to the extent permitted by Applicable Law, overdue interest and other amounts due in respect of the Loan, shall accrue at the Default Rate, calculated from the date such payment was due without regard to any grace or cure periods contained herein and (b) Lender shall be entitled to receive and Borrower shall pay to Lender on each Payment Date during such period an amount equal to the Net Cash Flow After Debt Service for the prior month, such amount to be applied by Lender to the payment of the Debt in such order as Lender shall determine in its sole discretion, including alternating applications thereof between interest and principal. Interest at the Default Rate and Net Cash Flow After Debt Service shall both be computed from the occurrence of the Event of Default until the actual receipt and collection of the Debt (or that portion thereof that is then due). To the extent permitted by Applicable Law, interest at the Default Rate shall be added to the Debt, shall itself accrue interest at the same rate as the Loan and shall be secured by the Pledge Agreement. This Section 2.2.6 shall not be construed as an agreement or privilege to extend the date of the payment of the Debt, nor as a waiver of any other right or remedy accruing to Lender by reason of the occurrence of any Event of Default; the acceptance of any payment of Net Cash Flow After Debt Service shall not be deemed to cure or constitute a waiver of any Event of Default; and Lender shall retain its rights under the Note to accelerate and to continue to demand payment of the Debt upon the happening of any Event of Default, despite any payment of Net Cash Flow After Debt Service.

2.2.7        Late Payment Charge.

If any principal, interest or any other sums due under the Loan Documents (other than the principal sum due on the Maturity Date or on any accelerated maturity of the Note) is not paid by Borrower on the date on which it is due (notwithstanding any grace period hereunder, under the Note or the other Loan Documents), Borrower shall pay to Lender within five (5) days after Lender’s demand therefor an amount equal to the lesser of two percent (2%) of such unpaid sum or the maximum amount permitted by Applicable Law 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. Any such amount shall be secured by the Pledge Agreement and the other Loan Documents to the extent permitted by Applicable Law.

2.2.8        Usury Savings.

This Agreement and the Note are subject to the express condition that at no time shall Borrower be obligated or required to pay interest on the principal balance of the Loan at a rate which could subject Lender to either civil or criminal liability as a result of being in excess of the Maximum Legal Rate. If, by the terms of this Agreement or the other Loan Documents, Borrower is at any time required or obligated to pay interest on the principal balance due hereunder at a rate in excess of the Maximum Legal Rate, the Applicable Interest Rate or the Default Rate, as applicable, shall be deemed to be immediately reduced to the Maximum Legal Rate and all previous payments in excess of

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the Maximum Legal Rate shall be deemed to have been payments in reduction of principal and not on account of the interest due hereunder. All sums paid or agreed to be paid to Lender for the use, forbearance, or detention of the sums due under the Loan, shall, to the extent permitted by Applicable Law, be amortized, prorated, allocated, and spread throughout the full stated term of the Loan until payment in full so that the rate or amount of interest on account of the Loan does not exceed the Maximum Legal Rate of interest from time to time in effect and applicable to the Loan for so long as the Loan is outstanding.

2.2.9        Foreign Taxes.

The provisions of this Section 2.2.9 shall only apply so long as a Securitization has not occurred. All payments made by Borrower hereunder shall be made free and clear of, and without reduction for or on account of, Foreign Taxes or U.S. Taxes, excluding, in the case of Lender or any Co-Lender, Foreign Taxes or U.S. Taxes measured by its net income, receipts, capital, net worth and franchise taxes imposed on it, by the jurisdiction under the laws of which Lender or any Co-Lender is resident or organized, or any political subdivision thereof and, in the case of Lender or any Co-Lender, taxes measured by its overall net income, receipts, capital, net worth and franchise taxes imposed on it, by the jurisdiction of Lender’s or such Co-Lender’s applicable lending office or any political subdivision thereof or in which Lender or such Co-Lender is resident or engaged in business. If any non excluded Foreign Taxes or U.S. Taxes are required to be withheld from any amounts payable to Lender or any Co-Lender hereunder, the amounts so payable to Lender or such Co-Lender shall be increased to the extent necessary to yield to Lender or such Co-Lender (after payment of all non excluded Foreign Taxes or U.S. Taxes) interest or any such other amounts payable hereunder at the rate or in the amounts specified hereunder. Whenever any non excluded Foreign Tax or U.S. Tax is payable pursuant to Applicable Law by Borrower, Borrower shall send to Lender or the applicable Co-Lender, within thirty (30) days after such payment, an original official receipt showing payment of such non excluded Foreign Tax or U.S. Tax or other evidence of payment reasonably satisfactory to Lender or the applicable Co-Lender. Borrower hereby indemnifies Lender and each Co-Lender for any incremental taxes, interest or penalties that may become payable by Lender or any Co-Lender which may result from any failure or delay by Borrower to pay any such non excluded Foreign Tax or U.S. Tax when due to the appropriate taxing authority or any failure or delay by Borrower to remit to Lender or any Co-Lender the required receipts or other reasonable evidence of such payment, provided, however , that notwithstanding anything to the contrary contained herein (a) the obligation to pay such additional amounts required under this Section 2.2.9 shall not apply to any Foreign Taxes which otherwise constitute Excluded Taxes and (b) in the event that Lender or any Co-Lender or any successor and/or assign of Lender or any Co-Lender is not incorporated under the laws of the United States of America or a state thereof, Lender and any such Co-Lender agrees that, prior to the first date on which any payment is due such entity hereunder, it will deliver to Borrower (i) two duly completed copies of United States Internal Revenue Service Form W-8BEN or W-8ECI or successor applicable form, as the case may be, certifying in each case that such entity is entitled to receive payments under the Note, without deduction or withholding of any United States federal income taxes, or (ii) an Internal Revenue

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Service Form W-9 or successor applicable form, as the case may be, to establish an exemption from United States backup withholding tax on all interest payments hereunder. Each entity required to deliver to Borrower a Form W-8BEN or W-8ECI or Form W-9 pursuant to the preceding sentence further undertakes to deliver to Borrower two (2) further copies of such letter and W-8BEN or W-8ECI or Form W-9, or successor applicable forms, or other manner of certification, as the case may be, on or before the date that any such letter or form expires (which, in the case of the Form W-8ECI, is the last day of each U.S. taxable year of the non U.S. entity) or becomes obsolete or after the occurrence of any event requiring a change in the most recent letter and form previously delivered by it to Borrower, and such other extensions or renewals thereof as may reasonably be requested by Borrower, certifying in the case of a Form W-8BEN or W-8ECI that such entity is entitled to receive payments under the Note without deduction or withholding of any United States federal income taxes, unless in any such case any change in treaty, law or regulation has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such entity from duly completing and delivering any such letter or form with respect to it and such entity advises Borrower that it is not capable of receiving payments without any deduction or withholding of United States federal income tax, and in the case of a Form W-9, establishing an exemption from United States backup withholding tax. Notwithstanding the foregoing, if such entity fails to provide a duly completed Form W-8BEN or W-8ECI or other applicable form and, under Applicable Law, in order to avoid liability for Foreign Taxes or U.S. Taxes, Borrower is required to withhold on payments made to such entity that has failed to provide the applicable form, Borrower shall be entitled to withhold the appropriate amount of Foreign Taxes or U.S. Taxes and Borrower shall have no obligation to pay any additional amounts to such entity under this Section 2.2.9. In such event, Borrower shall promptly provide to such entity evidence of payment of such Foreign Taxes or U.S. Taxes to the appropriate taxing authority and shall promptly forward to such entity any official tax receipts or other documentation with respect to the payment of the Foreign Taxes or U.S. Taxes as may be issued by the taxing authority.

Section 2.3             Prepayments.

2.3.1        Voluntary Prepayments.

Borrower may, at its option and upon not less than thirty (30) days’ (if given via U.S. Postal Service) or twenty (20) days’ (if given via facsimile, email or overnight courier), but no more than sixty (60) days’ prior written notice to Lender, prepay the Debt in whole or in part, provided (i) Borrower pays to Lender all accrued and unpaid interest on the amount of principal being prepaid through and including the date of prepayment and, if such prepayment occurs on a date which is not a Payment Date, all interest which would have accrued on the amount of principal being prepaid after the date of such prepayment to the next Payment Date (the “ Interest Shortfall ”); (ii) Mezzanine B Borrower simultaneously prepays the Mezzanine B Loan in whole, but not in part (except in connection with the release of an Individual Property in accordance with Section 2.6 of the Mezzanine B Loan Agreement) pursuant to the Mezzanine B Loan Agreement by a dollar amount which bears the same relation to the principal amount of the Mezzanine B

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Loan outstanding immediately prior to such prepayment as the amount of the Loan prepaid pursuant to this Section 2.3.1 bears to the principal amount of the Loan outstanding immediately prior to such prepayment; and (iii) if such prepayment occurs prior to the Prepayment Consideration Period End Date, Borrower pays to Lender the Prepayment Consideration.

Borrower shall be permitted the right to rescind and revoke or postpone its notice of prepayment given in accordance with this Section 2.3.1, provided that (i) a written notice of such rescission and revocation or postponement is received by Lender no sooner than three (3) Business Days prior to the date of prepayment indicated by Borrower and (ii) Borrower pays Lender’s reasonable out-of-pocket costs and expenses incurred as a result of Lender’s receipt of such notice of prepayment.

2.3.2        Liquidation Events.

(a)           In the event of (i) any Casualty affecting all or any portion of any Individual Property, (ii) any Condemnation of all or any portion of any Individual Property, (iii) a Transfer of any Individual Property in connection with realization thereon by the Mortgage Lender following a Mortgage Loan Event of Default, including without limitation a foreclosure sale, (iv) intentionally omitted, (v) intentionally omitted or (vi) any refinancing of the Properties or the Mortgage Loan (each, a “ Liquidation Event ”), Borrower shall cause the related Net Liquidation Proceeds After Debt Service (if any) to be deposited with Lender and to be applied in accordance with the applicable provisions of this Section 2.3.2(a). On each date on which Lender actually receives a distribution of Net Liquidation Proceeds After Debt Service, if such date is a Payment Date, such Net Liquidation Proceeds After Debt Service shall be applied to the outstanding principal balance of the Note and all other sums then due hereunder or under the Loan Documents and any remaining Net Liquidation Proceeds After Debt Service shall be disbursed to Borrower. In the event Lender receives a distribution of Net Liquidation Proceeds After Debt Service on a date other than a Payment Date, such amounts shall be held by Lender as collateral security for the Loan in an interest bearing account, with such interest accruing to the benefit of Borrower, and shall be applied by Lender in accordance with the immediately preceding sentence on the next Payment Date. No Prepayment Consideration or any other prepayment premium or penalty shall be due in connection with any prepayment made as a result of any of the events described in clauses (i) or (ii) of this Section 2.3.2(a).

(b)           Borrower shall promptly notify Lender of any Liquidation Event once Borrower has knowledge of such event. Borrower shall be deemed to have knowledge of (i) a sale (other than a foreclosure sale) of an Individual Property on the date on which a contract of sale for such sale is entered into, and a foreclosure sale, on the date notice of such foreclosure sale is given to Borrower or Mortgage Borrower, and (ii) a refinancing of an Individual Property or the Mortgage Loan, on the date on which a commitment for such refinancing is entered into. The provisions of this Section 2.3.2 shall not be construed to contravene in any manner the restrictions and other provisions regarding refinancing of the Mortgage Loan or the Transfer of any Individual Property set forth in this Agreement, and the other Loan Documents or the Mortgage Loan Documents.

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2.3.3        Prepayments After Default.

If, following the occurrence of an Event of Default and acceleration of the Maturity Date, payment of all or any part of the Debt is tendered by Borrower or otherwise recovered by Lender (including, without limitation, through application of any Net Liquidation Proceeds After Debt Service, other than Net Liquidation Proceeds After Debt Service received in connection with a Casualty or Condemnation of all or a portion of any Individual Property), such tender or recovery shall be deemed a voluntary prepayment by Borrower and Borrower shall pay, in addition to the Debt, (i) the Prepayment Consideration, if any, and (ii) all accrued and unpaid interest calculated at the Applicable Interest Rate on the amount of principal being prepaid through and including the date of prepayment and, if such prepayment occurs on a date which is not a Payment Date, all interest which would have accrued on the amount of principal being prepaid after the date of such prepayment to the next Payment Date.

2.3.4        Making of Payments.

Each payment by Borrower hereunder or under the Note shall be made in funds settled through the New York Clearing House Interbank Payments System or other funds immediately available to Lender by 2:00 p.m., New York City time, on or prior to the date such payment is due, to Lender by deposit to such account as Lender may designate by written notice to Borrower. Whenever any payment hereunder or under the Note shall be stated to be due on a date which is not a Business Day, such payment shall be made on the first Business Day succeeding such scheduled due date.

2.3.5        Application of Principal Prepayments.

All prepayments received pursuant to this Section 2.3 and Section 2.6 shall be applied, (i) first, to interest on the portion of the outstanding principal balance being prepaid that accrued through and including the date of prepayment, (ii) second, to the Interest Shortfall, if any, applicable to the portion of the outstanding principal balance being prepaid, (iii) third, to all other amounts then due to Lender under this Agreement or any of the other Loan Documents (including any Prepayment Consideration) and (iv) finally, to the principal amount of the Loan.

Section 2.4             Intentionally Omitted.

Section 2.5             Intentionally Omitted.

Section 2.6             Release of an Individual Property.

If Mortgage Borrower has elected to release an Individual Property from the Lien of the Security Instrument thereon and the requirements of this Section 2.6 have been satisfied, and provided that no Event of Default shall then exist, Borrower shall be entitled to (x) permit Mortgage Borrower to obtain the release of an Individual Property from the Lien of the Security Instrument thereon (and related Mortgage Loan Documents) and (y) the release of the applicable Borrower Entity’s obligations under the

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Loan Documents (other than those expressly stated to survive), upon the satisfaction of each of the following conditions:

(a)           (i) All conditions to the release of such Individual Property from the Lien of the Security Instrument thereon shall have been satisfied in accordance with the terms of the Mortgage Loan Documents (as independently determined by Lender in its reasonable discretion) and (ii) all conditions to the release of such Individual Property shall have been satisfied in accordance with the terms of Section 2.6 of the Mezzanine B Loan Agreement with respect to such release;

(b)           Borrower shall provide Lender with at least thirty (30) days’ but no more than ninety (90) days’ prior written notice of the release of any Individual Property permitted under this Section 2.6;

(c)           On or prior to the release of the applicable Individual Property, Lender shall have received a wire transfer of immediately available federal funds in an amount equal to the Release Price for such Individual Property, together with (i) all accrued and unpaid interest calculated at the Applicable Interest Rate on the amount of principal being prepaid through and including the date of the release, if such prepayment occurs on a date which is not a Payment Date, the Interest Shortfall; and (ii) if such prepayment is made prior to the Prepayment Consideration Period End Date, Borrower pays to Lender the Prepayment Consideration, if any;

(d)           Borrower shall submit to Lender, not later than ten (10) days prior to the release of the applicable Individual Property, an amendment to the Pledge Agreement and UCC-3 Financing Statements each amending Pledge Agreements and the UCC Financing Statements to reflect the release of the applicable Borrower Entity. In addition, Borrower shall provide all other customary 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 applicable Legal Requirements, (ii) will, following execution by Lender and recordation thereof, effect such releases in accordance with the terms of this Agreement, and (iii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released (or as to the parties to the Loan Documents not being released);

(e)           Intentionally Omitted;

(f)            Intentionally Omitted;

(g)           Intentionally Omitted;

(h)           Lender shall have received payment of all of Lender’s reasonable costs and expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred in connection with the release of the Individual Property from the lien of the related Security Instrument and the review and approval of the documents and information required to be delivered in connection therewith;

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(i)            Intentionally Omitted; and

(j)            Immediately following such release, the Allocated Loan Amount for the Individual Property released (the “ Released Individual Property ”) shall be reduced to zero, and the Allocated Loan Amount for each of the Individual Properties remaining subject to the Lien of the Security Instruments immediately following such release shall be reduced by such Individual Property’s pro rata share of the difference between the Release Price of the Released Individual Property and the original Allocated Loan Amount for the Released Individual Property. For purposes of the immediately preceding sentence, an Individual Property’s “ pro rata share” shall mean a fraction, the numerator of which is the Allocated Loan Amount for such Individual Property prior to giving effect to any reduction pursuant to this Section 2.6(j), and the denominator of which is the sum of the Allocated Loan Amounts, prior to giving effect to any reduction pursuant to this Section 2.6(j), for all of the Individual Properties other than the Released Individual Property.

Section 2.7             Intentionally Omitted.

Section 2.8             Release on Payment in Full.

Lender shall, upon the written request and at the expense of Borrower, upon payment in full of all principal of and interest on the Loan and all other amounts due and payable under the Loan Documents in accordance with the terms and conditions of the Note and this Agreement, release the Lien of the Pledge Agreement and remit any remaining Reserve Funds (i) Mezzanine B Lender if the Loan has been paid in full and the Mezzanine B Loan is still outstanding or (ii) to Borrower if the Loan and the Mezzanine B Loan have been paid in full.

Section 2.9             Substitution of Properties .

Subject to the terms of this Section 2.9, Borrower may cause Mortgage Borrower to obtain, from time to time, a release of one or more Individual Properties (each, a “ Release Property ”) by substituting therefor one or more luxury residential apartment building properties of like kind and quality located in the United States of America acquired by Mortgage Borrower or an Affiliate of Mortgage Borrower ( provided, however , that if the Substitute Property shall be owned by an Affiliate of Mortgage Borrower, such Affiliate (i) shall be wholly owned, directly or indirectly, by a Mezzanine B Borrower Entity, (ii) shall assume all the obligations of Mortgage Borrower under the Mortgage Loan Agreement, the Mortgage Note and the other Mortgage Loan Documents (subject, however, to the exculpatory provisions of Section 9.4 hereof) and (iii) shall become a party to the Mortgage Note and the other Mortgage Loan Documents and shall be bound by the terms and provisions thereof as if it had executed the Mortgage Note and the other Mortgage Loan Documents and shall have the rights and obligations of Mortgage Borrower thereunder) (individually, a “ Substitute Property ” and collectively, the “ Substitute Properties ”), provided that the following conditions precedent are satisfied or, in Lender’s sole discretion, waived:

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(a)           Lender shall have received at least thirty (30) days’ prior written notice requesting the substitution and identifying the Substitute Property and the Release Property.

(b)           (i) All conditions to the release of such Individual Property and substitution of such Substitute Property shall have been satisfied in accordance with the terms of the Mortgage Loan Documents (as independently determined by Lender in its reasonable discretion) and (ii) all conditions to the release of such Individual Property and substitution of such Substitute Property shall have been satisfied in accordance with the terms of Section 2.9 of the Mezzanine B Loan Agreement with respect to such release and substitution.

(c)           If the Mortgage Borrower Entity that owns the Release Property will continue to own an Individual Property subject to the Lien of a Security Instrument, Lender shall have received (i) a copy of a deed conveying all of such Mortgage Borrower Entity’s right, title and interest in and to the Release Property to a Person other than Mortgage Borrower or Mortgage Principal and (ii) a letter from Mortgage Borrower countersigned by a title insurance company acknowledging receipt of such deed and agreeing to record such deed in the real estate records for the county in which the Release Property is located.

(d)           Lender shall have received a current Appraisal of the Substitute Property prepared not earlier than one (1) year prior to the release and substitution showing an appraised value for the Substitute Property equal to or greater than the appraised value of the Release Property as of the Closing Date.

(e)           Intentionally Omitted.

(f)            If the Loan is part of a Securitization, Lender shall have received confirmation in writing from the Rating Agencies to the effect that such release and substitution will not result in a withdrawal, qualification or downgrade of the respective ratings in effect immediately prior to such release and substitution for the Securities issued in connection with the Securitization that are then outstanding. If the Loan is not part of a Securitization, Lender shall have consented in writing to such release and substitution, which consent shall be given in Lender’s reasonable discretion applying the requirements of a prudent institutional mortgage loan lender with respect to real estate collateral of a size, scope and value substantially similar to that of the Substitute Property.

(g)           No Event of Default shall have occurred and be continuing, and Borrower shall be in compliance in all material respects with all terms and conditions set forth in this Agreement and in each other Loan Document on Borrower’s part to be observed or performed. Lender shall have received a certificate from Borrower confirming the foregoing, stating that the representations and warranties of Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of the release and substitution with respect to Borrower, the Properties and the Substitute Property and containing any other representations and warranties with

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respect to Borrower, the Properties, the Substitute Property or the Loan as (i) Lender (applying the requirements of a prudent institutional mortgage loan lender), if a Securitization has not occurred, or (ii) the Rating Agencies, if a Securitization has occurred, may require, unless such certificate would be inaccurate, such certificate to be in form and substance satisfactory to Lender (applying the requirements of a prudent institutional mortgage loan lender) or the Rating Agencies, as applicable.

(h)           If the Substitute Property shall be owned by an Affiliate of Mortgage Borrower: (i) Borrower shall execute and deliver a pledge agreement in substantially the same form as the Pledge Agreement in respect of the ownership interests of Mortgage Borrower in the new property owner/mortgage borrower (such interests shall otherwise comply with the requirements of the Loan Documents and be substantially identical in structure, form and substance as the Collateral delivered at closing of the Loan); (ii) Borrower shall authorize Lender to file such UCC Financing Statements required by Lender with respect to the substitute Collateral; (iii) Borrower shall deliver, at its sole cost and expense, a UCC Insurance Policy insuring the new pledge agreement as a valid first lien on the ownership interests pledged thereunder and substantially identical to the UCC Insurance Policy delivered at the closing of the Loan; and (iv) Borrower shall enter into such modifications to the other Loan Documents as Lender may reasonably request in order to reflect the substitution of the applicable Individual Property and the new property owner/mortgage borrower. The amount of the Loan allocated to the Substitute Property (such amount being hereinafter referred to as the “ Substitute Allocated Loan Amount ”) shall equal the Allocated Loan Amount of the related Release Property; provided, however , that in the event the number of Release Properties with respect to any substitution effected pursuant to this Section 2.9 does not equal the number of Substitute Properties, the Substitute Allocated Loan Amount for each of such Substitute Properties shall be reasonably determined by Lender (provided, however, that the aggregate Substitute Allocated Loan Amount for such Substitute Properties shall not exceed the aggregate Allocated Loan Amount for such Released Properties).

(i)            Intentionally Omitted.

(j)            Lender shall have received a current Survey for each Substitute Property, certified to the title company and Lender and its successors and assigns, in the same form and having the same content as the certification of the Survey of the Release Property, prepared by a professional land surveyor licensed in the State in which the Substitute Property is located and acceptable to the Rating Agencies in accordance with the 1999 Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys. Such Survey shall reflect the same legal description contained in the Mortgage Title Insurance Policy relating to such Substitute Property and shall include, among other things, a metes and bounds description of the real property constituting part of such Substitute Property (unless such real property has been satisfactorily designated by lot number on a recorded plat). The surveyor’s seal shall be affixed to each Survey and each Survey shall certify whether or not the surveyed property is located in a “one-hundred-year flood hazard area.”

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(k)           Lender shall have received (i) valid certificates of insurance indicating that the requirements for the policies of insurance required for an Individual Property hereunder have been satisfied with respect to the Substitute Property and (ii) evidence of the payment of all Insurance Premiums payable for the existing policy period.

(l)            Lender shall have received a Phase I environmental report dated not more than one hundred eighty (180) days prior to the proposed date of substitution and otherwise in form and scope reasonably acceptable to a prudent institutional mortgage loan lender and, if recommended under the Phase I environmental report, a Phase II environmental report that would be in form and scope reasonably acceptable to a prudent institutional mortgage loan lender, which conclude that the Substitute Property does not contain any Hazardous Materials in contravention of any applicable Legal Requirements in any material respect and is not subject to any significant risk of contamination from any off site Hazardous Materials in contravention of any applicable Legal Requirements in any material respect. If any such report discloses the presence of any Hazardous Substance in contravention of any applicable Legal Requirement in any material respect, or the material risk of contamination from any off site Hazardous Substance in contravention of any applicable Legal Requirement in any material respect, the proposed substitution shall not be allowed without Lender’s prior written consent at any time prior to a Securitization of the Loan. If, subsequent to a Securitization of the Loan, any such report discloses the presence of any Hazardous Substance in contravention of any applicable Legal Requirement in any material respect, or the risk of contamination from any off site Hazardous Substance in contravention of any applicable Legal Requirement in any material respect, the proposed substitution shall not be allowed unless (i) such report shall include an estimate of the cost of any related remediation required to be undertaken by an environmental consultant reasonably selected by Lender, (ii) the estimated cost of remediation does not exceed ten percent (10%) of the Allocated Loan Amount for such Substitute Property, and (iii) Borrower shall have caused Mortgage Borrower to deposit with Mortgage Lender (A) cash, (B) a Letter of Credit, or (C) an indemnity by a reasonably acceptable indemnitor, in either event in an amount equal to one hundred twenty five percent (125%) of such estimated cost, which deposit shall constitute additional security for the Mortgage Loan and shall be released to Mortgage Borrower upon the delivery to Mortgage Lender of (1) an update to such report indicating that there is no longer any Hazardous Substance on the Substitute Property that has not been remediated or contained in accordance with applicable Legal Requirements in all material respects or any material danger of contamination from any off site Hazardous Substance in contravention of any applicable Legal Requirement, and (2) a certificate from Mortgage Borrower stating that all such remediation work has been paid in full or will be paid for out of the amounts reserved with Mortgage Lender. In the event that Mortgage Lender elects not to require such deposit, Borrower shall deliver such deposit to Lender.

(m)          Borrower shall deliver or cause to be delivered to Lender (A) updates or, if the Substitute Property is to be owned by an Affiliate of Borrower, originals, in either case certified by Borrower or such Affiliate, as applicable, of all organizational documentation related to Borrower or such Affiliate, as applicable, and/or the formation, structure, existence, good standing and/or qualification to do business delivered to Lender

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on the Closing Date; (B) good standing certificates, certificates of qualification to do business in the jurisdiction in which the Substitute Property is located (if required in such jurisdiction); and (C) resolutions of Borrower or such Affiliate, as applicable, authorizing the substitution and any actions taken in connection with such substitution.

(n)           Lender shall have received the following opinions of Borrower’s counsel: (A) an opinion or opinions of counsel stating that the Loan Documents delivered with respect to the Substitute Property pursuant to clause (h) above are valid and enforceable in accordance with their terms, subject to the laws applicable to creditors’ rights and equitable principles; (B) an opinion of counsel acceptable to the Rating Agencies, if the Loan is part of a Securitization, or reasonably acceptable to a prudent institutional mortgage loan lender, if the Loan is not part of a Securitization, stating that the Loan Documents delivered with respect to the Substitute Property pursuant to this Section are duly authorized, executed and delivered by Borrower and that the execution and delivery of such Loan Documents and the performance by Borrower of its obligations thereunder will not cause a breach of, or a default under, any agreement, document or instrument to which Borrower is a party or by which it or its properties are bound; and (C) an update of the Insolvency Opinion indicating that the substitution does not affect the opinions set forth therein.

(o)           Borrower shall have caused Mortgage Borrower to (i) have paid, (ii) have escrowed with Mortgage Lender or (iii) be contesting in accordance with the terms hereof, all Basic Carrying Costs relating to each of the Properties and the Substitute Property, including without limitation, (A) accrued but unpaid Insurance Premiums relating to each of the Properties and the Substitute Property, and (B) currently due and payable Taxes (including any in arrears) relating to each of the Properties and the Substitute Property and (C) currently due and payable Other Charges relating to each of the Properties and Substitute Property.

(p)           Borrower shall have paid or reimbursed Lender for all reasonable out-of-pocket costs and expenses actually incurred by Lender (including, without limitation, reasonable attorneys’ fees and disbursements of outside counsel) in connection with the release and substitution, and Borrower shall have paid all recording charges, filing fees, taxes or other expenses (including, without limitation, mortgage and intangibles taxes and documentary stamp taxes) payable in connection with the substitution. Borrower shall have paid all costs and expenses of the Rating Agencies incurred in connection with the substitution.

(q)           Lender shall have received annual operating statements and occupancy statements for the Substitute Property for the most current completed fiscal year and a current operating statement for the Release Property, each certified by Borrower to Lender as being true and correct in all material respects, and a certificate from Borrower certifying that there has been no material adverse change in the financial condition of the Substitute Property since the date of such operating statements.

(r)            Borrower shall have delivered to Lender estoppel certificates from all tenants under Major Leases at the Substitute Property. All such estoppel certificates shall

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be in the form or containing those statements required under such Major Lease or substantially in the form approved by Lender in connection with the origination of the Loan and shall indicate that (1) the subject Major Lease is a valid and binding obligation of the tenant thereunder, (2) to the tenant’s knowledge, there are no defaults under such Major Lease on the part of the landlord or tenant thereunder, (3) the tenant thereunder has no knowledge of any defense or offset to the payment of rent under such Lease, (4) no rent under such Lease has been paid more than one (1) month in advance, (5) the tenant thereunder has no option under such Lease to purchase all or any portion of the Substitute Property, and (6) all tenant improvement work required under such Lease has been substantially completed and the tenant under such Lease is in actual occupancy of its leased premises. If an estoppel certificate indicates that all tenant improvement work required under the subject Lease has not yet been completed, Borrower shall deliver to Lender financial statements indicating that Borrower has adequate funds to pay all costs related to such tenant improvement work as required under such Lease.

(s)           Lender shall have received copies of all Major Leases demising space at the Substitute Property certified by Borrower as being true and correct.

(t)            Intentionally Omitted.

(u)           Intentionally Omitted.

(v)           Lender shall have received a Physical Conditions Report with respect to the Substitute Property stating that the Substitute Property and its use comply in all material respects with all applicable Legal Requirements (including, without limitation, zoning, subdivision and building laws) and that the Substitute Property is in good condition and repair and free of damage or waste in all material respects. If compliance with applicable Legal Requirements is not addressed by the Physical Conditions Report, such compliance shall be confirmed by delivery to Lender of a letter from the municipality in which such Property is located, or a certificate of a surveyor that is licensed in the state in which the Substitute Property is located (with respect to zoning and subdivision laws, if offered in the jurisdiction in which the Substitute Property is located), or an ALTA 3.1 zoning endorsement to the applicable Title Insurance Policy (with respect to zoning laws) or a subdivision endorsement to the applicable Title Insurance Policy (with respect to subdivision laws). If the Physical Conditions Report recommends that any immediate repairs be made with respect to the Substitute Property, a substitution shall not be allowed without Lender’s prior written consent (not to be unreasonably withheld or delayed) with respect to such proposed Substitute Property at any time prior to a Securitization of the Loan. If, subsequent to a Securitization of the Loan, any such Physical Conditions Report recommends that any immediate repairs be made with respect to the Substitute Property, the proposed substitution shall not be allowed unless (i) such report shall include an estimate of the cost of such recommended repairs, (ii) the estimated cost of such recommended repairs does not exceed ten percent (10%) of the Allocated Loan Amount for such Substitute Property, and (iii) Borrower shall cause Mortgage Borrower to deposit with Mortgage Lender (A) cash, (B) a Letter of Credit, or (C) an indemnity by a reasonably acceptable indemnitor, in each such event in an amount equal to one hundred twenty five percent (125%) of such estimated cost,

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which deposit shall constitute additional security for the Loan and shall be released to Mortgage Borrower upon the delivery to Lender of (1) an update to such Physical Conditions Report or a letter from the engineer that prepared such Physical Conditions Report, indicating that the recommended repairs were completed in a good and workmanlike manner, and (2) a certificate from Mortgage Borrower indicating that the costs of all such repairs have been paid. In the event that Mortgage Lender elects not to require suc