Amended & Restated Credit Agreement



 






Exhibit 10.1



 




AMENDED AND RESTATED CREDIT AGREEMENT




Dated as of January 17, 2006




by and among




EQUITY ONE, INC.,

as Borrower




THE FINANCIAL INSTITUTIONS PARTY HERETO

AND THEIR ASSIGNEES UNDER SECTION 13.6,

as Lenders




and




WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Administrative Agent and Sole Lead Arranger




and




WACHOVIA BANK NATIONAL ASSOCIATION and SUNTRUST BANK,




as Co-Syndication Agents




and




PNC BANK NATIONAL ASSOCIATION and JP MORGAN CHASE BANK, N.A.,




as Co-Documentation Agents




and




BANK OF AMERICA, N.A., HARRIS NESBITT (BANK OF MONTREAL) and




BRANCH BANKING AND TRUST COMPANY,




as Managing Agents



 





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	Section 1.1 Definitions
	 	 	1	 
	Section 1.2 General; References to San Francisco Time 
	 	 	28	 
	 
	 	 	 	 
	ARTICLE II CREDIT FACILITY
	 	 	28	 
	 
	 	 	 	 
	Section 2.1 Revolving Loans
	 	 	28	 
	Section 2.2 Letters of Credit
	 	 	30	 
	Section 2.3 Swingline Loans
	 	 	34	 
	Section 2.4 Bid Rate Loans
	 	 	37	 
	Section 2.5 Rates and Payment of Interest on Loans
	 	 	40	 
	Section 2.6 Number of Interest Periods
	 	 	41	 
	Section 2.7 Repayment of Loans
	 	 	41	 
	Section 2.8 Prepayments
	 	 	41	 
	Section 2.9 Continuation
	 	 	42	 
	Section 2.10 Conversion
	 	 	43	 
	Section 2.11 Notes
	 	 	43	 
	Section 2.12 Expiration or Termination Date of Letters of Credit Past Termination Date
	 	 	43	 
	Section 2.13 Amount Limitations
	 	 	44	 
	Section 2.14 Optional Increase to the Commitment
	 	 	44	 
	Section 2.15 Extension of the Termination Date
	 	 	46	 
	 
	 	 	 	 
	ARTICLE III PAYMENTS, FEES AND OTHER GENERAL PROVISIONS
	 	 	46	 
	 
	 	 	 	 
	Section 3.1 Payments
	 	 	46	 
	Section 3.2 Pro Rata Treatment
	 	 	46	 
	Section 3.3 Sharing of Payments, Setoff, Etc
	 	 	47	 
	Section 3.4 Several Obligations
	 	 	48	 
	Section 3.5 Minimum Amounts
	 	 	48	 
	Section 3.6 Fees
	 	 	48	 
	Section 3.7 Computations
	 	 	50	 
	Section 3.8 Usury
	 	 	50	 
	Section 3.9 Agreement Regarding Interest and Charges
	 	 	50	 
	Section 3.10 Statements of Account
	 	 	50	 
	Section 3.11 Defaulting Lenders
	 	 	50	 
	Section 3.12 Taxes
	 	 	51	 
	 
	 	 	 	 
	ARTICLE IV POOL ASSETS
	 	 	53	 
	 
	 	 	 	 
	Section 4.1 Inclusion of Pool Assets
	 	 	53	 
	Section 4.2 Termination of Designation as Pool Asset
	 	 	53	 
	Section 4.3 Ineligibility of a Property as Pool Asset
	 	 	54	 






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	 	 	 	Page	 
	ARTICLE V YIELD PROTECTION, ETC 
	 	 	54	 
	 
	 	 	 	 
	Section 5.1 Additional Costs; Capital Adequacy 
	 	 	54	 
	Section 5.2 Suspension of LIBOR Loans 
	 	 	55	 
	Section 5.3 Illegality 
	 	 	56	 
	Section 5.4 Compensation 
	 	 	56	 
	Section 5.5 Treatment of Affected Loans 
	 	 	57	 
	Section 5.6 Change of Lending Office 
	 	 	57	 
	Section 5.7 Assumptions Concerning Funding of LIBOR Loans 
	 	 	58	 
	 
	 	 	 	 
	ARTICLE VI CONDITIONS PRECEDENT
	 	 	58	 
	 
	 	 	 	 
	Section 6.1 Initial Conditions Precedent 
	 	 	58	 
	Section 6.2 Conditions Precedent to All Loans and Letters of Credit 
	 	 	60	 
	Section 6.3 Conditions as Covenants 
	 	 	61	 
	 
	 	 	 	 
	ARTICLE VII REPRESENTATIONS AND WARRANTIES
	 	 	61	 
	 
	 	 	 	 
	Section 7.1 Representations and Warranties 
	 	 	61	 
	Section 7.2 Survival of Representations and Warranties, Etc 
	 	 	67	 
	 
	 	 	 	 
	ARTICLE VIII AFFIRMATIVE COVENANTS
	 	 	67	 
	 
	 	 	 	 
	Section 8.1 Preservation of Existence and Similar Matters 
	 	 	68	 
	Section 8.2 Compliance with Applicable Law and Material Contracts 
	 	 	68	 
	Section 8.3 Maintenance of Property 
	 	 	68	 
	Section 8.4 Conduct of Business 
	 	 	68	 
	Section 8.5 Insurance 
	 	 	68	 
	Section 8.6 Payment of Taxes and Claims 
	 	 	69	 
	Section 8.7 Books and Records; Inspections 
	 	 	69	 
	Section 8.8 Use of Proceeds 
	 	 	69	 
	Section 8.9 Environmental Matters 
	 	 	70	 
	Section 8.10 Further Assurances 
	 	 	70	 
	Section 8.11 Material Contracts 
	 	 	70	 
	Section 8.12 REIT Status 
	 	 	70	 
	Section 8.13 Exchange Listing 
	 	 	71	 
	Section 8.14 Guarantors 
	 	 	71	 
	 
	 	 	 	 
	ARTICLE IX INFORMATION
	 	 	72	 
	 
	 	 	 	 
	Section 9.1 Quarterly Financial Statements 
	 	 	73	 
	Section 9.2 Year-End Statements 
	 	 	73	 
	Section 9.3 Compliance Certificate 
	 	 	73	 
	Section 9.4 Other Information 
	 	 	74	 
	 
	 	 	 	 
	ARTICLE X NEGATIVE COVENANTS
	 	 	77	 
	 
	 	 	 	 
	Section 10.1 Financial Covenants 
	 	 	77	 
	Section 10.2 Negative Pledge 
	 	 	79	 
	Section 10.3 Restrictions on Intercompany Transfers 
	 	 	79	 
	Section 10.4 Merger, Consolidation, Sales of Assets and Other Arrangements 
	 	 	79	 






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	 	 	 	Page	 
	Section 10.5 Plans 
	 	 	81	 
	Section 10.6 Fiscal Year 
	 	 	81	 
	Section 10.7 Modifications of Organizational Documents and Material Contracts 
	 	 	81	 
	Section 10.8 Transactions with Affiliates 
	 	 	81	 
	 
	 	 	 	 
	ARTICLE XI DEFAULT
	 	 	82	 
	 
	 	 	 	 
	Section 11.1 Events of Default 
	 	 	82	 
	Section 11.2 Remedies Upon Event of Default 
	 	 	85	 
	Section 11.3 Marshaling; Payments Set Aside 
	 	 	87	 
	Section 11.4 Allocation of Proceeds 
	 	 	87	 
	Section 11.5 Letter of Credit Collateral Account 
	 	 	87	 
	Section 11.6 Performance by Administrative Agent 
	 	 	88	 
	Section 11.7 Rights Cumulative 
	 	 	89	 
	 
	 	 	 	 
	ARTICLE XII THE AGENT
	 	 	89	 
	 
	 	 	 	 
	Section 12.1 Authorization and Action 
	 	 	89	 
	Section 12.2 Administrative Agent’s Reliance, Etc 
	 	 	90	 
	Section 12.3 Notice of Defaults 
	 	 	91	 
	Section 12.4 Wells Fargo as Lender 
	 	 	91	 
	Section 12.5 Approvals of Lenders 
	 	 	91	 
	Section 12.6 Lender Credit Decision, Etc 
	 	 	92	 
	Section 12.7 Indemnification of Administrative Agent 
	 	 	93	 
	Section 12.8 Successor Administrative Agent 
	 	 	93	 
	Section 12.9 Titled Agents 
	 	 	94	 
	 
	 	 	 	 
	ARTICLE XIII MISCELLANEOUS
	 	 	94	 
	 
	 	 	 	 
	Section 13.1 Notices 
	 	 	94	 
	Section 13.2 Expenses 
	 	 	95	 
	Section 13.3 Stamp, Intangible and Recording Taxes 
	 	 	96	 
	Section 13.4 Electronic Document Deliveries 
	 	 	96	 
	Section 13.5 Litigation; Jurisdiction; Other Matters; Waivers 
	 	 	97	 
	Section 13.6 Successors and Assigns 
	 	 	98	 
	Section 13.7 Amendments 
	 	 	101	 
	Section 13.8 Nonliability of Administrative Agent and Lenders 
	 	 	103	 
	Section 13.9 Confidentiality 
	 	 	103	 
	Section 13.10 Indemnification 
	 	 	103	 
	Section 13.11 Termination; Survival 
	 	 	105	 
	Section 13.12 Severability of Provisions 
	 	 	105	 
	Section 13.13 GOVERNING LAW 
	 	 	105	 
	Section 13.14 Counterparts 
	 	 	106	 
	Section 13.15 Obligations with Respect to Loan Parties 
	 	 	106	 
	Section 13.16 Independence of Covenants 
	 	 	106	 
	Section 13.17 Limitation of Liability 
	 	 	106	 
	Section 13.18 USA Patriot Act Notice. Compliance 
	 	 	106	 
	Section 13.19 Entire Agreement 
	 	 	107	 
	Section 13.20 Construction 
	 	 	107	 






-iii-









 






	 	 	 
	SCHEDULE 1.1(A)

	 	Pro Rata Shares of Lenders and Outstanding Balances as of Effective Date
	SCHEDULE 1.1(B)

	 	List of Loan Parties
	SCHEDULE 1.1(C)

	 	List of Persons Excluded from Definition of “Unconsolidated Affiliate”
	SCHEDULE 4.1

	 	Initial Pool Assets
	SCHEDULE 7.1(b)

	 	Ownership Structure
	SCHEDULE 7.1(f)

	 	List of Properties and Marketable Securities
	SCHEDULE 7.1(g)

	 	Existing Indebtedness
	SCHEDULE 7.1(h)

	 	Material Contracts
	SCHEDULE 7.1(i)

	 	Litigation
	SCHEDULE 7.1(x)

	 	List of Properties owned by non-Borrower or Guarantor parties
	SCHEDULE 10.8

	 	Certain Transactions with Affiliates
	SCHEDULE 11.1(d)

	 	Indebtedness in known non-monetary default
	 
	EXHIBIT A

	 	Form of Assignment and Acceptance Agreement
	EXHIBIT B

	 	Form of Pool Certificate
	EXHIBIT C

	 	Form of Guaranty
	EXHIBIT D-1

	 	Form of Notice of Borrowing
	EXHIBIT D-2

	 	Form of Notice of Swingline Borrowing
	EXHIBIT E

	 	Form of Notice of Continuation
	EXHIBIT F

	 	Form of Notice of Conversion
	EXHIBIT G-1

	 	Form of Revolving Note
	EXHIBIT G-2

	 	Form of Swingline Note
	EXHIBIT G-3

	 	Form of Bid Rate Note
	EXHIBIT H

	 	Form of Opinion of Counsel
	EXHIBIT I

	 	Form of Compliance Certificate
	EXHIBIT J

	 	Form of Designation Agreement
	EXHIBIT K-1

	 	Form of Bid Rate Quote Request
	EXHIBIT K-2

	 	Form of Bid Rate Quote
	EXHIBIT K-3

	 	Form of Bid Rate Quote Acceptance
	EXHIBIT L

	 	Form of Solvency Certificate
	EXHIBIT M

	 	Form of Transfer Authorizer Designation







-iv-









 








AMENDED AND RESTATED CREDIT AGREEMENT




     THIS AMENDED AND RESTATED CREDIT AGREEMENT (the “Agreement”) dated as of January 17, 2006 by
and among EQUITY ONE, INC., a corporation organized under the laws of the State of Maryland (the
"Borrower”), each of the financial institutions initially a signatory hereto together with their
assignees under Section 13.6(d) (the “Lenders”), WACHOVIA BANK NATIONAL ASSOCIATION and
SUNTRUST BANK, as Co-Syndication Agents, PNC BANK NATIONAL ASSOCIATION and JP MORGAN CHASE BANK,
N.A., as Co-Documentation Agents, BANK OF AMERICA, N.A., HARRIS NESBITT (BANK OF MONTREAL) and
BRANCH BANKING AND TRUST COMPANY, as Managing Agents, and WELLS FARGO BANK, NATIONAL ASSOCIATION
(“Wells Fargo”) as contractual representative of the Lenders to the extent and in the manner
provided in Article XII (in such capacity, the “Administrative Agent”) and as Sole Lead
Arranger.



     WHEREAS, Borrower, certain Lenders and Administrative Agent previously entered into a Credit
Agreement dated as of February 7, 2003 (the “Prior Credit Agreement”), under which Lenders made
available to Borrower, on an unsecured basis, a $340,000,000 revolving credit facility, which
included a $20,000,000 letter of credit subfacility, a $35,000,000 swingline subfacility and a
$170,000,000 competitive bid subfacility;



     AND WHEREAS, the parties now desire to fully amended and restate the Prior Credit Agreement to
change the Lenders to the Agreement, to reduce the total commitment thereunder to $275,000,000, to
modify the competitive bid subfacility to fifty percent (50%) of the Loan Commitment and to make
certain other changes and modifications, all on the terms and conditions contained herein.



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



ARTICLE I DEFINITIONS




Section 1.1 Definitions.




     In addition to terms defined elsewhere herein, the following terms shall have the following
meanings for the purposes of this Agreement:



     “Absolute Rate” has the meaning given that term in Section 2.4(c)(ii).



     “Absolute Rate Auction” means a solicitation of Bid Rate Quotes setting forth Absolute Rates
pursuant to Section 2.4(b).



     “Absolute Rate Loan” means a Bid Rate Loan, in which the interest rate is determined on the
basis of an Absolute Rate pursuant to an Absolute Rate Auction.



     “Accession Agreement” means an Accession Agreement substantially in the form of Annex I to the
Guaranty.



     “Additional Costs” has the meaning given that term in Section 5.1.



 









 





     “Affiliate” means, with respect to any Person, a Person (other than the Administrative Agent
or any Lender): (a) directly or indirectly controlling, controlled by, or under common control
with, such Person; (b) directly or indirectly owning or holding ten percent (10%) or more of any
Equity Interest in such Person; or (c) ten percent (10%) or more of whose voting stock or other
Equity Interest is directly or indirectly owned or held by such Person. For purposes of this
definition, “control” (including with correlative meanings, the terms “controlling”, “controlled
by” and “under common control with”) means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person, whether through the
ownership of voting securities or by contract or otherwise. The Affiliates of a Person shall
include any officer or director of such Person. In no event shall the Administrative Agent or any
Lender be deemed to be an Affiliate of the Borrower.



     “Administrative Agent” means Wells Fargo Bank, National Association, as contractual
representative for the Lenders under the terms of this Agreement, and any of its successors in such
capacity.



     “Agreement Date” means the date as of which this Agreement is dated.



     “Applicable Law” means all applicable provisions of constitutions, statutes, rules,
regulations and orders of all governmental bodies and all orders and decrees of all courts,
tribunals and arbitrators.



     “Applicable Margin” shall mean the respective percentage rates set forth below corresponding
to the Credit Ratings of the Borrower prevailing as of the date of rate determination as assigned
by the applicable Rating Agencies:



	 	 	 	 	 
	 	 	Credit Rating	 	Applicable Margin for
	Level	 	(from S&P and one other Rating Agency)	 	LIBOR Loans
	1	 	A-/A3 or equivalent or higher
	 	0.45%
	2	 	BBB+/Baa1 or equivalent
	 	0.60%
	3	 	BBB/Baa2 or equivalent
	 	0.675%
	4	 	BBB-/Baa3 or equivalent
	 	0.80%
	5	 	Less than BBB-/Baa3 or equivalent or no
rating from S&P and one other Rating Agency
	 	1.15%





During any period that the Borrower receives two Credit Ratings, if the Rating Agencies assign
Credit Ratings which correspond to different Levels in the above table resulting in different
Applicable Margin determinations, the Applicable Margin will be determined based on the Level
corresponding to the higher of the two Credit Ratings. During any period that the Borrower
receives more than two Credit Ratings and none of such Credit Ratings is equivalent, the Applicable
Margin shall equal the average of the Applicable Margins corresponding to the two highest of such
Credit Ratings. Borrower shall provide to Administrative Agent notice of each anticipated or
actual change in a Credit Rating within three (3) Business Days of Borrower’s knowledge thereof.
Each change in the Applicable Margin resulting from a change in a Credit Rating of the Borrower
shall take effect on the first calendar day of the month following the month in which such Credit
Rating is publicly announced by the relevant Rating Agency. As of




Page 2









 







the Agreement Date, the Applicable Margin for LIBOR Loans equals eight-tenths of one percent
(0.8%).




     “Asset Value” means:



          (a) with respect to any Subsidiary at a given time, the sum of (i)
EBITDA of such Subsidiary at such time for the fiscal quarter most recently ended multiplied by
four (4) and divided by 8.0%, plus (ii) the book value of all CIP of such Subsidiary as of
the end of the Borrower’s fiscal quarter most recently ended; and




          (b) with respect to any Unconsolidated Affiliate at a given time the sum
of (i) with respect to any of such Unconsolidated Affiliate’s Properties, the Borrower’s
Ownership Share of EBITDA of such Unconsolidated Affiliate attributable to such Properties for the
fiscal quarter most recently ended multiplied by four (4) and divided by 8.0%, plus (ii)
with respect to any of such Unconsolidated Affiliate’s CIP, the Borrower’s Ownership Share of the
book value of such CIP as of the end of the Borrower’s fiscal quarter most recently ended.




     “Assignee” has the meaning given that term in Section 13.6(c).



     “Assignment and Acceptance Agreement” means an Assignment and Acceptance Agreement among a
Lender, an Assignee and the Administrative Agent, substantially in the form of Exhibit A.



     “Base Rate” means the Federal Funds Rate plus one-half of one percent (0.5%). Each
change in the Base Rate shall become effective without prior notice to the Borrower or the Lenders
automatically as of the opening of business on the date of such change in the Base Rate.



     “Base Rate Loan” means a Loan bearing interest at a rate based on the Base Rate.



     “Benefit Arrangement” means at any time an employee benefit plan within the meaning of Section
3(3) of ERISA which is not a Plan or a Multiemployer Plan and which is maintained or otherwise
contributed to by any member of the ERISA Group.



     “Bid Rate Borrowing” has the meaning given that term in Section 2.4(b).



     “Bid Rate Loan” means a loan made by a Lender under Section 2.4(a).



     “Bid Rate Note” means a promissory note of the Borrower substantially in the form of
Exhibit G-3, payable to the order of a Lender as originally in effect and otherwise duly
completed.



     “Bid Rate Quote” means an offer in accordance with Section 2.4(c) by a Lender to make
a Bid Rate Loan with one single specified interest rate.



     “Bid Rate Quote Request” has the meaning given that term in Section 2.4(b).



     “Borrower” has the meaning set forth in the introductory paragraph hereof and shall include
the Borrower’s successors and permitted assigns.



Page 3









 





     “Business Day” means (a) any day other than a Saturday, Sunday or other day on which banks in
Tampa, Florida or San Francisco, California are authorized or required to close and (b) with
reference to a LIBOR Loan, any such day that is also a day on which dealings in Dollar deposits are
carried out in the London interbank market.



     “Capitalized Lease Obligation” means obligations under a lease that is required to be
capitalized for financial reporting purposes in accordance with GAAP. The amount of a Capitalized
Lease Obligation is the capitalized amount of such obligation determined in accordance with GAAP.



     “CIP” means construction-in-progress, together with any related Land held for development, all
as determined in accordance with GAAP.



     “Commitment” means, as to each Lender, such Lender’s obligation to make Revolving Loans
pursuant to Section 2.1, and to issue (in the case of the Administrative Agent) or
participate in (in the case of the other Lenders) Letters of Credit pursuant to Section
2.2(a) and 2.2(i) respectively, and to make (in the case of the Administrative
Agent) or participate in (in the case of other Lenders) Swingline Loans pursuant to Section
2.3(e), in an amount up to, but not exceeding the amount set forth for such Lender on
Schedule 1.1(A) attached hereto as such Lender’s “Commitment Amount” or as set forth in the
applicable Assignment and Acceptance Agreement, or as appropriate to reflect any assignments to or
by such Lender effected in accordance with Section 13.6.



     “Compliance Certificate” has the meaning given that term in Section 9.3.



     “Contingent Obligation” as applied to any Person, means any direct or indirect liability,
contingent or otherwise, of that Person with respect to any Indebtedness, lease, dividend or other
payment obligation of another Person if the primary purpose or intent of the Person incurring such
liability, or the primary effect thereof, is to provide assurance to the obligee of such liability
that such liability will be paid or discharged, or that the holders of such liability will be
protected (in whole or in part) against loss with respect thereto. Contingent Obligations shall
include (i) any Guaranty of the Indebtedness of another (other than of such
Person for liabilities arising from reasonable and customary exceptions to Nonrecourse
Indebtedness, such as for fraud, willful misrepresentation, misapplication of funds (including
misappropriation of security deposits and failure to apply rents to operating expenses or debt
service), indemnities relating to environmental matters and waste of property constituting security
for such Nonrecourse Indebtedness, post-default interest, attorney’s fees and other costs of
collection to the extent not covered by the value of the property constituting security for such
Nonrecourse Indebtedness and other similar exceptions to recourse liability, none of which
liabilities shall be deemed to be Contingent Obligations), (ii) the obligation to make take-or-pay
or similar payments if required regardless of nonperformance by any other party or parties to an
agreement, and (iii) any liability of such Person for the Indebtedness of another through any
agreement to purchase, repurchase or otherwise acquire such obligation or any property constituting
security therefor, to provide funds for the payment or discharge of such obligation or to maintain
the solvency, financial condition or any balance sheet item or level of income of another. The
amount of any Contingent Obligation shall be equal to the amount of the obligation so guaranteed or
otherwise supported or, if not a fixed and determined amount, the maximum amount so guaranteed.



Page 4









 





     “Continue”, “Continuation” and “Continued” each refers to the continuation of a LIBOR Loan
from one Interest Period to another Interest Period pursuant to Section 2.9.



     “Convert”, “Conversion” and “Converted” each refers to the conversion of a Loan of one Type
into a Loan of another Type pursuant to Section 2.10.



     “Credit Event” means any of the following: (a) the making (or deemed making) of any Loan, (b)
the Conversion of a Loan, (c) the Continuation of a LIBOR Loan and (d) the issuance of a Letter of
Credit.



     “Credit Rating” means the rating assigned by a Rating Agency to each series of rated senior
unsecured long term indebtedness of the Borrower.



     “Default” means any of the events specified in Section 11.1, whether or not there has
been satisfied any requirement for the giving of notice, the lapse of time, or both.



     “Defaulting Lender” has the meaning set forth in Section 3.11.



     “Derivatives Contract” means any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement. Not in limitation of the foregoing, the term
“Derivatives Contract” includes any and all transactions of any kind, and the related
confirmations, which are subject to the terms and conditions of, or governed by, any form of master
agreement published by the International Swaps and Derivatives Association, Inc., any International
Foreign Exchange Master Agreement, or any other master agreement, including any such obligations or
liabilities under any such master agreement.



     “Derivatives Termination Value” means, in respect of any one or more Derivatives Contracts,
after taking into account the effect of any legally enforceable netting agreement relating to such
Derivatives Contracts, (a) for any date on or after the date such Derivatives Contracts have been
closed out and termination value(s) determined in accordance therewith, such termination value(s),
and (b) for any date prior to the date referenced in clause (a) the amount(s) determined as the
mark-to-market value(s) for such Derivatives Contracts, as determined based upon one or more
mid-market or other readily available quotations provided by any recognized dealer in such
Derivatives Contracts (which may include the Administrative Agent or any Lender).



     “Designated Lender” means any Person which would qualify as an Eligible Assignee or a special
purpose entity which is an affiliate of, or sponsored by, a Lender, that is engaged in making,
purchasing or otherwise investing in commercial loans in the ordinary course of its business and
that issues (or the direct or indirect parent of which issues) commercial paper rated



Page 5









 







at least P-1 (or the then equivalent grade) by Moody’s or A-1 (or the then equivalent grade)
by S&P that, in either case, (a) is organized under the laws of the United States of America or any
state thereof or is a foreign banking institution authorized to do business in the United States
through a domestic branch or subsidiary, (b) shall have become a party to this Agreement pursuant
to Section 13.6(d) and (c) is not otherwise a Lender, together with its respective
successors and permitted assigns, and, as the context requires, includes the Swingline Lender;
provided, however, that the term “Lender” shall exclude each Designated Lender when
used in reference to any Loan other than a Bid Rate Loan, the Commitments or terms relating to any
Loan other than a Bid Rate Loan and the Commitments and shall further exclude each Designated
Lender for all other purposes hereunder except that any Designated Lender which funds a Bid Rate
Loan shall, subject to Section 13.6(d), have the rights (including the rights given to a
Lender contained in Sections 13.2 and 13.10) and obligations of a Lender
associated with holding such Bid Rate Loan.



     “Designated Lender Note” means a Bid Rate Note of the Borrower evidencing the obligation of
the Borrower to repay Bid Rate Loans made by a Designated Lender.



     “Designating Lender” has the meaning given that term in Section 13.6(d).



     “Designation Agreement” means a Designation Agreement between a Lender and a Designated Lender
and accepted by the Administrative Agent, substantially in the form of Exhibit J or such
other form as may be agreed to by such Lender, such Designated Lender and the Administrative Agent.



     “Development Property” means a Property currently under development that has not achieved a
Leasing Rate of eighty percent (80%) or more or, subject to the last sentence of this definition,
on which the improvements (other than tenant improvements on unoccupied space) related to the
development have not been completed. The term “Development Property” shall include real property
of the type described in the immediately preceding sentence to be (but not yet) acquired by the
Borrower, any Subsidiary or any Unconsolidated Affiliate upon completion of construction pursuant
to a contract in which the seller of such real property is required to develop or renovate prior
to, and as a condition precedent to, such acquisition or real property being developed by third
parties with related indebtedness that the Borrower, any Subsidiary or any Unconsolidated Affiliate
has guaranteed or as to which any such Person is otherwise obligated. A Development Property on
which all improvements (other than tenant improvements on unoccupied space) related to the
development of such Property have been substantially completed for at least twelve (12) months
shall cease to constitute a Development Property notwithstanding the fact that such Property has
not achieved a Leasing Rate of at least eighty percent (80%).



     “Dollars” or “$” means the lawful currency of the United States of America.



     “EBITDA” means, with respect to any Person for any period and without duplication, the
sum of (a) net earnings (loss) of such Person (before minority interests and
preferred distributions) for such period (excluding equity in net earnings or net loss of
Unconsolidated Affiliates) excluding the following amounts (but only to the extent included
in determining net earnings (loss) for such period): (i) depreciation and amortization expense and
other non-cash



Page 6









 







charges of such Person for such period; (i) interest expense of such Person for such period;
(iii) income tax expense of such Person in respect of such period; (iv) extraordinary and
nonrecurring gains and losses of such Person for such period, including without limitation, gains
and losses from the sale of assets, write-offs and forgiveness of debt; plus (b) such
Person’s Ownership Share of EBITDA (calculated as referred to in the foregoing clause (a)) of each
Unconsolidated Affiliate.



     “Effective Date” means the later of: (a) the Agreement Date; and (b) the date on which all of
the conditions precedent set forth in Section 6.1 shall have been fulfilled or waived in
writing by the Administrative Agent.



     “Eligible Assignee” means any Person that is: (a) an existing Lender; (b) a commercial bank,
trust company, savings and loan association, savings bank, insurance company, investment bank or
pension fund organized under the laws of the United States of America, any state thereof or the
District of Columbia, and having total assets in excess of $5,000,000,000 ; or (c) a commercial
bank organized under the laws of any other country which is a member of the Organization for
Economic Co-operation and Development, or a political subdivision of any such country, and having
total assets in excess of $10,000,000,000, provided that such bank is acting through a branch,
agency or international banking facility located in the United States of America. If such Person
is not currently a Lender, such Person’s (or in the case of a bank which is a subsidiary, such
bank’s parent’s) senior unsecured long term indebtedness must be rated BBB or higher by S&P, Baa2
or higher by Moody’s or the equivalent or higher of either such rating by another Rating Agency.



     “Eligible Encumbered Property” means Property (other than CIP or Eligible Ground Leases) that
secures Indebtedness with a ratio of the unpaid balance of said Indebtedness to the Pool Value of
said Property that is less than or equal to forty percent (40%) (such calculation to be made upon
initial inclusion of the Property in the Pool and on the last day of each calendar quarter
thereafter for so long as the Property is to be included in the Pool).



     “Eligible Ground Leases” means a ground lease of real property in which Borrower or a Wholly
Owned Subsidiary is ground lessee and which meets all of the following requirements:



          (a) Such lease has a remaining term (including renewal options exercisable at lessee’s sole
option) of not less than twenty-five (25) years, and




          (b) Administrative Agent has determined, in its reasonable discretion, that the ground lease
is financeable in that it provides or allows for (either in the ground lease or in a current valid
estoppel letter executed by the ground lessor), without further consent from the ground lessor, (i)
notice and right to cure to ground lessee’s mortgage lender, (ii) a pledge and mortgage of the
leasehold interest, and (iii) recognition of a foreclosure of the leasehold interest (including no
prohibition on entering into a new lease between ground lessor and the acquirer at a foreclosure
sale by ground lessee’s mortgage lender).




     “Eligible Pool Asset” means a Property (whether an Eligible Encumbered Property, Eligible
Ground Lease, CIP or otherwise) or Marketable Security which satisfies at all times, from and after
its inclusion as a Pool Asset in accordance with Section 4.1 and until such asset is



Page 7









 







removed from the Pool in accordance with Section 4.2 or Section 4.3, all of
the following requirements as certified by Borrower to Administrative Agent at such time as the
Eligible Pool Asset is added to the Pool and from time to time thereafter in accordance with the
provisions of this Agreement:




     (a) if such Eligible Pool Asset is Property, such Eligible Pool Asset is owned in fee
simple (or pursuant to an approved leasehold interest, in the case of Eligible Ground
Leases) by the Borrower or a Wholly Owned Subsidiary;




     (b) if such Eligible Pool Asset is a Marketable Security, such Marketable Security
shall consist of either (i) common or preferred shares of companies domiciled in the United
States (i.e., no ADR’s), and listed on the NYSE, NASDAQ or other recognized United States
exchange and quoted on at least a daily basis on such exchange, or (ii) debt securities
rated BBB- / Baa3 or better and issued by companies domiciled in the United States;




     (c) other than with respect to Eligible Encumbered Property, regardless of whether such
Eligible Pool Asset is owned by the Borrower or a Wholly Owned Subsidiary, the Borrower has
the right directly, or indirectly through a Wholly Owned Subsidiary, to take the following
actions without the need to obtain the consent of any Person: (i) to create a Lien on such
Eligible Pool Asset as security for Indebtedness of the Borrower or such Wholly Owned
Subsidiary, as applicable and (ii) to sell, transfer or otherwise dispose of such Eligible
Pool Asset, provided, however, that, with respect to not
greater than fifty percent (50%) of the Eligible Pool Assets, the foregoing
limitation shall not apply to Properties subject to binding, fully executed purchase
contracts, not in default, which have, unless otherwise approved by Requisite Lenders, a
scheduled closing date under such contracts not greater than one-hundred eighty (180) days
following the execution date thereof;




     (d) other than with respect to Eligible Encumbered Property, neither such Eligible Pool
Asset, nor if such Eligible Pool Asset is owned by a Wholly Owned Subsidiary, any of the
Borrower’s direct or indirect ownership interest in such Wholly Owned Subsidiary, is subject
to any Lien other than Permitted Liens;




     (e) such Eligible Pool Asset (to the extent a Property) is free of all structural
defects, title defects, environmental conditions or other adverse matters except for
Permitted Liens and defects, conditions or matters individually or collectively which are
not material to the profitable operation of such Eligible Pool Asset;




     (f) to the extent such Eligible Pool Asset is a Property, Borrower has obtained an
environmental study from a third party consultant that indicates the property has no
material recognized environmental condition which, in Borrower’s reasonable discretion,
impedes its intended use or materially impacts its salability or financing potential; and




     (g) if such Eligible Pool Asset is owned by a Wholly Owned Subsidiary, such Wholly
Owned Subsidiary has already or will become a Guarantor hereunder prior to



Page 8









 







such Eligible Pool Asset being treated as an Eligible Pool Asset (to the extent
required by the provisions of Section 8.14 below).



     “Environmental Laws” means any Applicable Law relating to environmental protection or the
manufacture, storage, disposal or clean-up of Hazardous Materials including, without limitation,
the following: Clean Air Act, 42 U.S.C. § 7401 et seq.; Federal Water Pollution Control Act, 33
U.S.C. § 1251 et seq.; Solid Waste Disposal Act, 42 U.S.C. § 6901 et seq.; Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq.; National
Environmental Policy Act, 42 U.S.C. § 4321 et seq.; regulations of the Environmental Protection
Agency and any applicable rule of common law and any judicial interpretation thereof relating
primarily to the environment or Hazardous Materials.



     “Equity Interest” means, with respect to any Person, any share of capital stock of (or other
ownership or profit interests in) such Person, any warrant, option or other right for the purchase
or other acquisition from such Person of any share of capital stock of (or other ownership or
profit interests in) such Person, any security convertible into or exchangeable for any share of
capital stock of (or other ownership or profit interests in) such Person or warrant, right or
option for the purchase or other acquisition from such Person of such shares (or such other
interests), and any other ownership or profit interest in such Person (including, without
limitation, partnership, member or trust interests therein), whether voting or nonvoting, and
whether or not such share, warrant, option, right or other interest is authorized or otherwise
existing on any date of determination.



     “Equity Issuance” means any issuance or sale by a Person of any Equity Interest.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as in effect from time to
time.



     “ERISA Group” means the Borrower, any Subsidiary and all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under common control which,
together with the Borrower or any Subsidiary, are treated as a single employer under Section 414 of
the Internal Revenue Code.



     “Event of Default” means any of the events specified in Section 11.1, provided that
any requirement for notice or lapse of time or any other condition has been satisfied.



     “Fair Market Value” means, with respect to any asset, the price which could be negotiated in
an arm’s-length free market transaction, for cash, between a willing seller and a willing buyer,
neither of which is under pressure or compulsion to complete the transaction. Except as otherwise
provided herein, Fair Market Value shall be determined by the Board of Directors of the Borrower
(or an authorized committee thereof) acting in good faith conclusively evidenced by a board
resolution thereof delivered to the Administrative Agent or, with respect to any asset valued at up
to $1,000,000, such determination may be made by the chief financial officer of the Borrower
evidenced by an officer’s certificate delivered to the Administrative Agent.



     “Federal Funds Rate” means, for any day, the rate per annum (rounded upwards to the nearest
1/1,000th of 1%) equal to the weighted average of the rates on overnight Federal funds



Page 9









 







transactions with members of the Federal Reserve System arranged by Federal funds brokers on
such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding
such day, provided that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day
shall be the average rate quoted to the Administrative Agent by federal funds dealers selected by
the Administrative Agent on such day on such transaction as determined by the Administrative Agent.



     “Fee Letter” means that certain letter agreement dated ___, 2005 between the
Administrative Agent and the Borrower with respect to certain fees payable by the Borrower to and
for the benefit of Administrative Agent in connection with this Agreement.



     “Fees” means the fees and commissions provided for or referred to in Section 3.6 and
any other fees payable by the Borrower to the Administrative Agent or any other Lender hereunder or
under any other Loan Document.



     “FIRREA” means the Financial Institution Recovery, Reform and Enforcement Act of 1989, as
amended.



     “Fixed Charges” means, with respect to a Person and for a given period, the
sum of (a) the Interest Expense of such Person for such period, plus (b)
the aggregate of all scheduled principal payments on Indebtedness made by such Person during such
period (excluding balloon, bullet or similar payments of principal due upon the stated maturity of
Indebtedness) including a proportionate share of same for all Unconsolidated Affiliates,
plus (c) the aggregate of all dividends paid or accrued by such Person on any Preferred
Stock during such period including a proportionate share of same for all Unconsolidated Affiliates,
plus (d) the Reserve for Replacements for all Property owned by such Person as of the end
of such period.



     “Funds From Operations” means, with respect to a Person and for a given period, (a) net income
(loss) of such Person determined on a consolidated basis for such period minus (or plus) (b) gains
(or losses) from debt restructuring and sales of property during such period plus (c) depreciation
with respect to such Person’s real estate assets and amortization (other than amortization of
deferred financing costs) of such Person for such period, all after adjustment for unconsolidated
partnerships and joint ventures.



     “GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as may be approved by a significant segment of the
accounting profession, which are applicable to the circumstances as of the date of determination,
and which have been consistently applied.



     “Governmental Approvals” means all authorizations, consents, approvals, licenses and
exemptions of, registrations and filings with, and reports to, all Governmental Authorities.



     “Governmental Authority” means any national, state or local government (whether domestic or
foreign), any political subdivision thereof or any other governmental,



Page 10









 







quasi-governmental, judicial, public or statutory instrumentality, authority, body, agency, bureau
or entity (including, without limitation, the Federal Deposit Insurance Corporation, the
Comptroller of the Currency or the Federal Reserve Board, any central bank or any comparable
authority) or any arbitrator with authority to bind a party at law.



     “Gross Asset Value” means, at a given time, the sum (without duplication)
of:




     (a) Operating Property Value at such time, plus




     (b) all cash and cash equivalents (excluding tenant deposits and other cash and cash
equivalents the disposition of which is restricted) of the Borrower and its Subsidiaries at
such time; plus




     (c) Borrower’s and its Subsidiaries’ respective Ownership Shares of all cash and cash
equivalents (excluding tenant deposits and other cash and cash equivalents the disposition
of which is restricted) of each Unconsolidated Affiliate at such time, plus




     (d) the current book value of all CIP, plus




     (e) the Borrower’s and its Subsidiaries’ respective Ownership Shares of the current
book values of all CIP of each Unconsolidated Affiliate, plus




     (f) the purchase price paid by the Borrower or any Subsidiary (less any amounts paid to
the Borrower or such Subsidiary as a purchase price adjustment (i.e., the net effective
purchase price, after taking into account any net credits to the stated purchase price),
held in escrow, retained as a contingency reserve, or in connection with other similar
arrangements) for any Property acquired by the Borrower or such Subsidiary during the
immediately preceding fiscal quarter of the Borrower, plus




     (g) the Borrower’s and its Subsidiaries’ respective Ownership Shares of the purchase
price paid by any Unconsolidated Affiliate (less any amounts paid to such Unconsolidated
Affiliate as a purchase price adjustment, held in escrow, retained as a contingency reserve,
or in connection with other similar arrangements) for any Property acquired by such
Unconsolidated Affiliate during the immediately preceding fiscal quarter of the Borrower,
plus




     (h) the contractual purchase price of Properties of the Borrower and its Subsidiaries
and Borrower’s and its Subsidiaries’ Ownership Share of the contractual purchase price of
Properties of the Borrower’s Unconsolidated Affiliates, subject to purchase obligations,
repurchase obligations, forward commitments and unfunded obligations to the extent such
obligations and commitments are included in determinations of Total Liabilities,
plus




     (i) the current book value of Land held for development (including Borrower’s and its
Subsidiaries’ Ownership Share of Land held for development by Borrower’s Unconsolidated
Affiliates, but not including Land included in subsection (d) or (e) above), plus



Page 11









 






     (j) the current book value (including Borrower’s and its Subsidiaries’ Ownership Share
with respect to Borrower’s Unconsolidated Affiliates) of accounts receivable (deemed
collectable in the ordinary course of business and less than ninety (90) days outstanding)
and notes receivable (deemed to be collectable) net of collection reserves, plus




     (k) the current market value of Marketable Securities owned by Borrower and its
Subsidiaries; provided, however, that if more than five percent (5%) of the
Gross Asset Value is attributable to Marketable Securities, then the value of such
Marketable Securities in excess of five percent (5%) of Gross Asset Value shall be limited
solely to the market value of common or preferred shares of companies domiciled in the
United States (i.e., no ADR’s), and listed on the NYSE, NASDAQ or other recognized United
States exchange and quoted on at least a daily basis on such exchange, unless such
Marketable Securities are debt securities, in which case such securities shall be valued at
the lesser of (i) the cost or (ii) the market value of such
securities, which debt securities in any event must be rated BBB- / Baa3 or better and
issued by companies domiciled in the United States.



     In limitation of the foregoing, (i) no more than five percent (5%) of the Gross Asset Value
may be attributable to the current book value of land held for development (not including book
value of such land included in CIP), (ii) no more then five percent (5%) of the Gross Asset Value
may be attributable to the book value of current portions of accounts receivable and notes
receivable net of collection reserves, (iii) no more than ten percent (10%) of the Gross Asset
Value may be attributable to Marketable Securities, and no more than ten percent (10%) of the Gross
Asset Value may be attributable to Persons excluded from the definition of “Unconsolidated
Affiliate” by operation of the proviso therein. Without limiting Borrower’s continuing obligations
under Sections 10.1(g) and (h), any Gross Asset Value in excess of any
limitation set forth therein shall be excluded.



     “Guarantor” means any Person that is party to the Guaranty as a “Guarantor” and in any event
shall include each Person which is required to execute a Guaranty pursuant to the provisions of
Section 8.14.



     “Guaranty”, “Guaranteed” or to “Guarantee” as applied to any obligation means and includes:
(a) a guaranty (other than by endorsement of negotiable instruments for collection in the ordinary
course of business), directly or indirectly, in any manner, of any part or all of such obligation,
or (b) an agreement, direct or indirect, contingent or otherwise, and whether or not constituting a
guaranty, the practical effect of which is to assure the payment or performance (or payment of
damages in the event of nonperformance) of any part or all of such obligation whether by: (i) the
purchase of securities or obligations, (ii) the purchase, sale or lease (as lessee or lessor) of
property or the purchase or sale of services primarily for the purpose of enabling the obligor with
respect to such obligation to make any payment or performance (or payment of damages in the event
of nonperformance) of or on account of any part or all of such obligation, or to assure the owner
of such obligation against loss, (iii) the supplying of funds to or in any other manner investing
in the obligor with respect to such obligation, (iv) repayment of amounts drawn by beneficiaries of
letters of credit (including Letters of Credit), or (v) the supplying of funds to or investing in a
Person on account of all or any part of such Person’s obligation under a



Page 12









 







Guaranty of any obligation or indemnifying or holding harmless, in any way, such Person
against any part or all of such obligation. As the context requires, “Guaranty” shall also mean
the guaranty executed and delivered pursuant to Section 6.1 and substantially in the form
of Exhibit C.



     “Hazardous Materials” means all or any of the following: (a) substances that are defined or
listed in, or otherwise classified pursuant to, any applicable Environmental Laws as “hazardous
substances”, “hazardous materials”, “hazardous wastes”, “toxic substances” or any other formulation
intended to define, list or classify substances by reason of deleterious properties such as
ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity, “TCLP” toxicity, or
“EP toxicity”; (b) oil, petroleum or petroleum derived substances, natural gas, natural gas liquids
or synthetic gas and drilling fluids, produced waters and other wastes associated with the
exploration, development or production of crude oil, natural gas or geothermal resources; (c) any
flammable substances or explosives or any radioactive materials; (d) asbestos in any form; and (e)
electrical equipment which contains any oil or dielectric fluid containing levels of
polychlorinated biphenyls in excess of fifty parts per million.



     “Indebtedness” means, with respect to a Person, at the time of computation thereof, all of the
following (without duplication):



          (a) all obligations of such Person in respect of money borrowed;




          (b) all obligations of such Person (other than trade debt incurred in the ordinary course of
business), whether or not for money borrowed (i) represented by notes payable, or drafts accepted,
in each case representing extensions of credit, (ii) evidenced by bonds, debentures, notes or
similar instruments, or (iii) constituting purchase money indebtedness, conditional sales
contracts, title retention debt instruments or other similar instruments, upon which interest
charges are customarily paid or that are issued or assumed as full or partial payment for property;




          (c) Capitalized Lease Obligations of such Person;




          (d) all reimbursement obligations of such Person under or in respect of any letters of credit
or acceptances (whether or not the same have been presented for payment);




          (e) all Off Balance Sheet Liabilities of such Person;




          (f) net obligations under any Derivatives Contract in an amount equal to the Derivatives
Termination Value thereof;




          (g) all Indebtedness of other Persons which (i) such Person has Guaranteed or is otherwise
recourse to such Person or (ii) is secured by a Lien on any property of such Person; and




          (h) such Person’s Ownership Share of the Indebtedness of any Unconsolidated Affiliate of such
Person that is not with recourse to such Person.




Page 13









 








     “Indemnity and Contribution Agreement” means the Indemnity and Contribution Agreement dated
substantially concurrently herewith executed amongst Borrower and each Guarantor.



     “Intellectual Property” has the meaning given that term in Section 7.1(s).



     “Interest Expense” means, with respect to a Person and for any period as determined in
accordance with GAAP, (a) all paid or accrued interest expense (excluding capitalized
interest, but including interest expense attributable to Capitalized Lease Obligations) of
such Person and in any event shall include all letter of credit fees and all interest expense with
respect to any Indebtedness in respect of which such Person is wholly or partially liable whether
pursuant to any repayment, interest carry, performance Guarantee or otherwise, plus (b) to
the extent not already included in the foregoing clause (a) such Person’s Ownership Share of all
paid or accrued interest expense (excluding capitalized interest, but including
interest expense attributable to Capitalized Lease Obligations) for such period of Unconsolidated
Affiliates of such Person.



     “Interest Period” means, with respect to any LIBOR Loan, each period commencing on the date
such LIBOR Loan is made or the last day of the next preceding Interest Period for such Loan and
ending on the numerically corresponding day in the first, second, third or sixth calendar month
thereafter, as the Borrower may select in a Notice of Borrowing, Notice of Continuation or Notice
of Conversion, as the case may be, except that each Interest Period that commences on the last
Business Day of a calendar month (or on any day for which there is no numerically corresponding day
in the appropriate subsequent calendar month) shall end on the last Business Day of the appropriate
subsequent calendar month. Notwithstanding the foregoing: (a) if any Interest Period would
otherwise end after the Termination Date, such Interest Period shall end on the Termination Date;
(b) each Interest Period that would otherwise end on a day which is not a Business Day shall end on
the next succeeding Business Day (or, if such next succeeding Business Day falls in the next
succeeding calendar month, on the preceding Business Day); and (c) notwithstanding the immediately
preceding clauses (a) and (b), no Interest Period shall have a duration of less than one month and,
if the Interest Period for any Loan would otherwise be a shorter period, such Loan shall not be
available hereunder for such period.



     “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended.



     “Investment” means, with respect to any Person, any acquisition or investment (whether or not
of a controlling interest) by such Person, whether by means of (a) the purchase or other
acquisition of any Equity Interest in another Person, (b) a loan, advance or extension of credit
to, capital contribution to, Guaranty of Indebtedness of, or purchase or other acquisition of any
Indebtedness of, another Person, including any partnership or joint venture interest in such other
Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions)
of assets of another Person that constitute the business or a division or operating unit of another
Person. A commitment or option to make an Investment in any other Person shall constitute an
Investment. Except as expressly provided otherwise, for purposes of determining compliance with
any covenant contained in a Loan Document, the amount of any Investment shall be the amount
actually invested, without adjustment for subsequent increases or decreases in the value of such
Investment.



Page 14









 





     “L/C Commitment Amount” equals $20,000,000.



     “L/C Termination Date” means the date which is seven (7) Business Days prior to the
Termination Date.



     “Land” means fully entitled unimproved land.



     “Leasing Rate” means, with respect to any Pool Asset (including CIP) at any time, the ratio,
expressed as a percentage, of (a) the net rentable square footage of such Property actually leased
to tenants paying rent pursuant to binding leases as to which no material monetary default has
occurred and is continuing to (b) the aggregate net rentable square footage of such Property.



     “Lender” means each financial institution from time to time party hereto as a “Lender” or a
“Designated Lender,” together with its respective successors and permitted assigns, and, as the
context requires, includes the Swingline Lender; provided, however, that the term
“Lender” shall exclude each Designated Lender when used in reference to any Loan other than a Bid
Rate Loan, the Commitments or terms relating to any Loan other than a Bid Rate Loan and the
Commitments and shall further exclude each Designated Lender for all other purposes hereunder
except that any Designated Lender which funds a Bid Rate Loan shall, subject to Section
13.6(d), have the rights (including the rights given to a Lender contained in Sections
13.2 and 13.10) and obligations of a Lender associated with holding such Bid Rate
Loan.



     “Lending Office” means, for each Lender and for each Type of Loan, the office of such Lender
specified as such on its signature page hereto or in the applicable Assignment and Acceptance
Agreement, or such other office of such Lender as such Lender may notify the Administrative Agent
in writing from time to time.



     “Letter of Credit” has the meaning given that term in Section 2.2(a).



     “Letter of Credit Collateral Account” means a special deposit account accruing interest in
favor of Borrower maintained by the Administrative Agent and under its sole dominion and control.



     “Letter of Credit Documents” means, with respect to any Letter of Credit, collectively, any
application therefor, any certificate or other document presented in connection with a drawing
under such Letter of Credit and any other agreement, instrument or other document governing or
providing for (a) the rights and obligations of the parties concerned or at risk with respect to
such Letter of Credit or (b) any collateral security for any of such obligations.



     “Letter of Credit Liabilities” means, without duplication, at any time and in respect of any
Letter of Credit, the sum of (a) the Stated Amount of such Letter of Credit plus (b) the aggregate
unpaid principal amount of all Reimbursement Obligations of the Borrower at such time due and
payable in respect of all drawings made under such Letter of Credit. For purposes of this
Agreement, a Lender (other than the Lender then acting as Administrative Agent) shall be deemed to
hold a Letter of Credit Liability in an amount equal to its participation interest under
Section 2.2(i) in the related Letter of Credit, and the Lender then acting as
Administrative Agent shall be deemed to hold a Letter of Credit Liability in an amount equal to its
retained interest in



Page 15









 







the related Letter of Credit after giving effect to the acquisition by the Lenders (other than
the Lender then acting as Administrative Agent) of their participation interests under such
Section.



     “LIBOR” means, for any LIBOR Loan for any Interest Period therefor, the average rate of
interest per annum at which deposits in immediately available funds in Dollars are offered to the
Lender then acting as Administrative Agent (at approximately 9:00 a.m., two Business Days prior to
the first day of such Interest Period) by first class banks in the interbank Eurodollar market
where the Eurodollar operations of the Lender then acting as Administrative Agent are customarily
conducted, for delivery on the first day of such Interest Period, such deposits being for a period
of time equal or comparable to such Interest Period and in an amount equal to or comparable to the
principal amount of the LIBOR Loan to which such Interest Period relates. Each determination of
LIBOR by the Lender then acting as Administrative Agent shall, in absence of demonstrable error, be
conclusive and binding.



     “LIBOR Auction” means a solicitation of Bid Rate Quotes setting forth LIBOR Margin Loans based
on LIBOR pursuant to Section 2.4.



     “LIBOR Loan” means a Loan bearing interest at a rate based on LIBOR.



     “LIBOR Margin Loan” means a Bid Rate Loan the interest rate on which is determined on the
basis of LIBOR pursuant to a LIBOR Auction.



     “Lien” as applied to the property of any Person means: (a) any security interest,
encumbrance, mortgage, deed to secure debt, deed of trust, pledge, lien, charge or lease
constituting a Capitalized Lease Obligation, conditional sale or other title retention agreement,
or other security title or encumbrance of any kind in respect of any property of such Person, or
upon the income or profits therefrom; (b) any arrangement, express or implied, under which any
property of such Person is transferred, sequestered or otherwise identified for the purpose of
subjecting the same to the payment of Indebtedness or performance of any other obligation in
priority to the payment of the general, unsecured creditors of such Person; (c) the filing of any
financing statement under the UCC or its equivalent in any jurisdiction; and (d) any agreement by
such Person to grant, give or otherwise convey any of the foregoing.



     “Loan” means a Revolving Loan, Swingline Loan or Bid Loan, as applicable.



     “Loan Document” means this Agreement, each Note, each Guaranty, each Letter of Credit
Document, the Fee Letter, the Indemnity and Contribution Agreement and each other document or
instrument now or hereafter executed and delivered by a Loan Party in connection with, pursuant to
or relating to this Agreement.



     “Loan Party” means each of the Borrower and the Guarantors. Schedule 1.1(B) sets
forth the Loan Parties in addition to the Borrower as of the Effective Date.



     “Marketable Securities” means debt or equity securities that are traded on a recognized
exchange or that have readily (i.e., recent active trading) verifiable values as determined by
Administrative Agent in its sole discretion.



Page 16









 





     “Material Adverse Effect” means a materially adverse effect on (a) the business, assets,
liabilities, financial condition, or results of operations of the Borrower and its Subsidiaries
taken as a whole, (b) the ability of the Borrower or any other Loan Party to perform its
obligations under any Loan Document to which it is a party, (c) the validity or enforceability of
any of the Loan Documents, (d) the rights and remedies of the Lenders and the Administrative Agent
under any of the Loan Documents or (e) the timely payment of the principal of or interest on the
Loans or other amounts payable in connection therewith.



     “Material Contract” means (a) each property management agreement, if any, not terminable on
thirty (30) days’ notice with respect to an Eligible Pool Asset and (b) any other contract or other
arrangement (other than Loan Documents), whether written or oral, to which the Borrower, any
Subsidiary or any other Loan Party is a party as to which the breach, nonperformance, cancellation
or failure to renew by any party thereto could have a Material Adverse Effect.



     “Material Plan” means at any time a Plan or Plans having aggregate Unfunded Liabilities in
excess of $3,000,000.



     “Maximum Availability” means, at any time, (a) the Pool Value divided by 1.60,
minus (b) all Unsecured Liabilities of the Borrower and its Subsidiaries (not including the
Loans or Letter of Credit Liabilities made or incurred hereunder) determined on a consolidated
basis, minus (c) the amount of Indebtedness secured by Pool Assets which are Eligible
Encumbered Properties.



     “Moody’s” means Moody’s Investors Service, Inc.



     “Mortgage” means a mortgage, deed of trust, deed to secure debt or similar security instrument
made by a Person owning an interest in real property granting a Lien on such interest in real
property as security for the payment of Indebtedness of such Person.



     “Multiemployer Plan” means at any time an employee pension benefit plan within the meaning of
Section 4001(a)(3) of ERISA to which any member of the ERISA Group is then making or accruing an
obligation to make contributions or has within the preceding five (5) plan years made
contributions, including for these purposes any Person which ceased to be a member of the ERISA
Group during such 5-year period.



     “Net Operating Income” means, for any Property and for a given period, the sum
(without duplication) of (a) rents and other revenues earned in the ordinary course from
such Property (excluding pre-paid rents and revenues and security deposits except to the extent
applied in satisfaction of tenants’ obligations for rent), including all revenue from expense
recoveries and percentage rental payments, minus (b) all expenses paid or accrued related
to the ownership, operation or maintenance of such Property (other than those expenses normally
covered by a management fee), including but not limited to, taxes, assessments and the like,
insurance, utilities, payroll costs, maintenance, repair and landscaping expenses, marketing
expenses, and general and administrative expenses minus, to the extent not already covered
in subsection (b) above, (c) the Reserve for Replacements for such Property for such period
minus (d) the greater of (i) the actual property management fee paid during such period
with respect to



Page 17









 







such Property and (ii) an imputed management fee in an amount equal to three percent (3%) of
the gross revenues for such Property for such period, all as determined in accordance with GAAP.



     “Net Proceeds” means with respect to an Equity Issuance by a Person, the aggregate amount of
all cash or the Fair Market Value of all other property received by such Person in respect of such
Equity Issuance net of investment banking fees, legal fees, accountants fees, underwriting
discounts and commissions and other customary fees and expenses actually incurred by such Person in
connection with such Equity Issuance.



     “New Lender” shall have the meaning set forth in Section 2.14(d).



     “Non-Credit Subsidiary” means a Subsidiary or Unconsolidated Affiliate of Borrower which is
neither a Loan Party, nor the owner of a Pool Asset.



     “Non-Guarantor Entity” means: (a) any Subsidiary or Unconsolidated Affiliate of the Borrower
that is not required to become a party to the Guaranty under Section 8.14(a), and (b) any
Preferred Stock Entity or non-Voting Stock Subsidiary and any Subsidiary or Unconsolidated
Affiliate of any Preferred Stock Entity or non-Voting Stock Subsidiary.



     “Nonrecourse Indebtedness” means, with respect to a Person, Indebtedness for borrowed money in
respect of which recourse for payment (except for customary exceptions for fraud, misapplication of
funds, environmental indemnities, and other similar exceptions to recourse liability in a form
reasonably acceptable to the Administrative Agent) is contractually limited to specific assets of
such Person encumbered by a Lien securing such Indebtedness.



     “Note” means a Revolving Note, a Bid Rate Note or a Swingline Note.



     “Notice of Borrowing” means a notice substantially in the form of Exhibit D-1 to be
delivered to the Administrative Agent pursuant to Section 2.1(b) evidencing the Borrower’s
request for a borrowing of Revolving Loans.



     “Notice of Continuation” means a notice substantially in the form of Exhibit E to be
delivered to the Administrative Agent pursuant to Section 2.9 evidencing the Borrower’s
request for the Continuation of a LIBOR Loan.



     “Notice of Conversion” means a notice substantially in the form of Exhibit F to be
delivered to the Administrative Agent pursuant to Section 2.10 evidencing the Borrower’s
request for the Conversion of a Loan from one Type to another Type.



     “Notice of Swingline Borrowing” means a notice substantially in the form of Exhibit
D-2 to be delivered to the Administrative Agent pursuant to Section 2.3(b) evidencing
the Borrower’s request for a borrowing of Swingline Loans.



     “Obligations” means, individually and collectively: (a) the aggregate principal balance of,
and all accrued and unpaid interest on, all Loans; (b) all Reimbursement Obligations and all other
Letter of Credit Liabilities; and (c) all other indebtedness, liabilities, obligations, covenants
and duties of the Borrower or any of the other Loan Parties owing to the Administrative Agent or



Page 18









 







any Lender of every kind, nature and description, under or in respect of this Agreement or any
of the other Loan Documents, including, without limitation, the Fees and indemnification
obligations, whether direct or indirect, absolute or contingent, due or not due, contractual or
tortious, liquidated or unliquidated, and whether or not evidenced by any promissory note.



     “Off Balance Sheet Liabilities” means, with respect to any Person, (a) any repurchase
obligation or liability, contingent or otherwise, of such Person with respect to any accounts or
notes receivable sold, transferred or otherwise disposed of by such Person, (b) any repurchase
obligation or liability, contingent or otherwise, of such Person with respect to property or assets
leased by such Person as lessee and (c) all obligations, contingent or otherwise, of such Person
under any synthetic lease, tax retention operating lease, off balance sheet loan or similar off
balance sheet financing if the transaction giving rise to such obligation (i) is considered
indebtedness for borrowed money for tax purposes but is classified as an operating lease or (ii)
does not (and is not required pursuant to GAAP to) appear as a liability on the balance sheet of
such Person.



     “Officer’s Certificate” means a certificate signed by a specified officer of a Person
certifying as to the matters set forth therein.



     “Operating Property Value” means, as of a given date, (a) EBITDA of the Borrower and its
Subsidiaries for the fiscal quarter most recently ended multiplied by four (4) and divided by 8.0%,
plus (b) EBITDA from management activities for the fiscal quarter most recently ended
multiplied by four (4) and divided by 20%. For purposes of determining the component of Operating
Property Value under clause (a) above, the following shall be excluded: (i) EBITDA from
Properties acquired by the Borrower or any Subsidiary during the immediately preceding fiscal
quarter of the Borrower or disposed of by any such Person during the immediately preceding fiscal
quarter of the Borrower, (ii) EBITDA from management activities, and (iii) if applicable, EBITDA
from CIP.



     “Ownership Share” means, with respect to any Subsidiary of a Person (other than a Wholly Owned
Subsidiary) or any Unconsolidated Affiliate of a Person, the greater of (a)
such Person’s relative nominal direct and indirect ownership interest (expressed as a percentage)
in such Subsidiary or Unconsolidated Affiliate or (b) subject to compliance with Section
9.4(q), such Person’s relative direct and indirect economic interest (calculated as a
percentage) in such Subsidiary or Unconsolidated Affiliate determined in accordance with the
applicable provisions of the declaration of trust, articles or certificate of incorporation,
articles of organization, partnership agreement, joint venture agreement or other applicable
organizational document of such Subsidiary or Unconsolidated Affiliate.



     “Participant” has the meaning given that term in Section 13.6(b).



     “PBGC” means the Pension Benefit Guaranty Corporation and any successor agency.



     “Permitted Liens” means (a) Liens securing taxes, assessments and other charges or levies
imposed by any Governmental Authority (excluding any Lien imposed pursuant to any of the provisions
of ERISA or pursuant to any Environmental Laws) or the claims of materialmen, mechanics, carriers,
warehousemen or landlords for labor, materials, supplies or rentals incurred



Page 19









 







in the ordinary course of business, which are not at the time required to be paid or
discharged under Section 8.6; (b) Liens consisting of deposits or pledges made, in the
ordinary course of business, in connection with, or to secure payment of, obligations under
workmen’s compensation, unemployment insurance or similar Applicable Laws; (c) Liens consisting of
encumbrances in the nature of zoning restrictions, easements, and rights or restrictions of record
on the use of real property, which do not materially detract from the value of such property or
impair the use thereof in the business of such Person; (d) the rights of tenants under leases or
subleases not interfering with the ordinary conduct of business of the Borrower; (e) Liens securing
Indebtedness with respect to Eligible Encumbered Properties; (f) non-consensual Liens of less than
$1,500,000 per Property or $5,000,000 in the aggregate and (g) Liens in favor of the Administrative
Agent for the benefit of the Lenders.



     “Person” means an individual, corporation, partnership, limited liability company,
association, trust or unincorporated organization, or a government or any agency or political
subdivision thereof.



     “Plan” means at any time an employee pension benefit plan (other than a Multiemployer Plan)
which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412
of the Internal Revenue Code and either (i) is maintained, or contributed to, by any member of the
ERISA Group for employees of any member of the ERISA Group or (ii) has at any time within the
preceding five (5) years been maintained, or contributed to, by any Person which was at such time a
member of the ERISA Group for employees of any Person which was at such time a member of the ERISA
Group.



     “Pool” means, collectively at any given time, all the then Pool Assets.



     “Pool Assets” means those Eligible Pool Assets that, pursuant to the terms of this Agreement,
are to be included when calculating the Pool Value. An asset shall cease to be a Pool Asset if such
asset shall cease, at any time, to be an Eligible Pool Asset.



     “Pool Certificate” means a report, certified by the chief financial officer or treasurer of
the Borrower, substantially in the form of Exhibit B, setting forth the calculations
required to establish the Pool Values of each Pool Asset as of a specified date and certifying that
each Pool Asset remains an Eligible Pool Asset, all in form and detail satisfactory to the
Administrative Agent.



     “Pool Value” means the sum of:




     (a) the Net Operating Income of each Pool Asset (other than a Property referred to in
clause (b) or (c) below) for the fiscal quarter most recently ended times four (4) and
divided by 8.00%, plus




     (b) the acquisition cost of any Pool Asset not owned for the entire prior fiscal
quarter period, plus




     (c) the aggregate book value of any Property which is a Pool Asset constituting CIP, as
of the last day of the fiscal quarter most recently ended, plus



Page 20









 






     (d) the market value of Marketable Securities (other than debt securities) based upon
the closing price on the last trading date on or prior to the date of determination,
plus




     (e) in the case of Marketable Securities which are debt securities, the
lower of (i) the market value for such debt securities based upon the
closing price on the last trading date on or prior to the date of determination or (ii)
cost.




provided that, the Pool Value shall be adjusted as follows:




     (i) no more than thirty-five percent (35%) of the Pool Value may be
attributable to Eligible Encumbered Properties, non-Retail Properties, Eligible
Ground Leases, Marketable Securities and CIP,




     (ii) no more than twenty percent (20%) of the Pool Value may be attributable to
Eligible Encumbered Properties,




     (iii) no more than fifteen percent (15%) of the Pool Value may be attributable
to the book value of CIP,




     (iv) no more than fifteen percent (15%) of the Pool Value may be attributable
to Eligible Ground Leases,




     (v) no more than ten percent (10%) of the Pool Value may be attributable to
Marketable Securities,




     (vi) no more than ten percent (10%) of the Pool Value may be attributable to
any one Eligible Pool Asset,




     (vii) no more than five percent (5%) of the Pool Value may be attributable to
non-Retail Properties, and




     (viii) the Pool Value shall be adjusted from time to time to delete one or more
Properties such that the weighted average Leasing Rate for the Pool Assets at all
times equals or exceeds eighty percent (80%).



     “Post-Default Rate” means, in respect of any principal of any Loan or any other Obligation
that is not paid when due (whether at stated maturity, by acceleration, by optional or mandatory
prepayment or otherwise), a rate per annum equal to four percent (4%) plus the Base Rate as in
effect from time to time.



     “Preferred Stock” means, with respect to any Person, shares of capital stock of, or other
Equity Interests in, such Person which are entitled to preference or priority over any other
capital stock of, or other Equity Interest in, such Person in respect of the payment of dividends
or distribution of assets upon liquidation or both.



     “Preferred Stock Entity” means any Person (other than a Subsidiary) in whom the Borrower owns,
directly or indirectly, at least ninety-five (95%) of the Preferred Stock or other



Page 21









 







equity interests which are not Voting Stock and which Preferred Stock or other equity
interests entitle the Borrower to receive the majority of all economic benefits associated with
ownership of all equity interests issued by such Person.



     “Property” means a parcel (or group of related parcels) of real property developed (or to be
developed). For purposes of this Agreement, Property shall include all CIP and ground leases.



     “Pro Rata Share” means, as to each Lender, the ratio, expressed as a percentage, of (a) the
amount of such Lender’s Commitment to (b) the Total Commitment Amount; provided,
however, that if at the time of determination the Commitments have terminated or been
reduced to zero, the “Pro Rata Share” of each Lender shall be the Pro Rata Share of such Lender in
effect immediately prior to such termination or reduction. The Pro Rata Shares of Lenders as of
the Agreement Date are as set forth on Schedule 1.1(A) hereto, and shall be modified from
time to time to reflect any assignments to or by such Lender effected in accordance with
Section 13.6.



     “Rating Agencies” means S&P, Moody’s and any other nationally recognized securities rating
agency selected by the Borrower and approved of by the Administrative Agent in writing.



     “Recourse Indebtedness” means Indebtedness that is not Nonrecourse Indebtedness.



     “Recurring Capital Expenditures” means capital expenditures made in respect of a Property for
maintenance of such Property and replacement of items due to ordinary wear and tear including, but
not limited to, expenditures made for maintenance or replacement of carpeting, roofing materials,
mechanical systems, electrical systems and other structural systems and expenditures relating to
tenant improvements and leasing commissions. “Recurring Capital Expenditures” shall not include
any of the following (a) improvements to the appearance of such Property or any other major upgrade
or renovation of such Property not necessary for proper maintenance or marketability of such
Property; (b) capital expenditures for seismic upgrades or (c) capital expenditures for deferred
maintenance for such Property existing at the time such Property was acquired by the Borrower or a
Subsidiary.



     “Redevelopment Property” means a Property (a) on which the existing building or other
improvements are undergoing renovation and redevelopment and for which any of the following has
occurred (i) construction has commenced, or (ii) the Borrower, any Subsidiary or any Unconsolidated
Affiliate, as the case may be, has entered into a binding construction contract or (iii) the
Borrower, any Subsidiary or any Unconsolidated Affiliate, as the case may be, has entered into a
binding agreement by an anchor tenant to enter into a lease of any such Property and (b) either (i)
that has not achieved a Leasing Rate of eighty percent (80%) or more or (ii) on which the
improvements (other than tenant improvements on unoccupied space) related to the renovation and
redevelopment have not been completed. The term “Redevelopment Property” shall include Property of
the type described in the immediately preceding sentence to be (but not yet) acquired by any such
Person upon completion of construction pursuant to a contract in which the seller of such Property
is required to renovate prior to, and as a condition precedent to, such acquisition or Property
being developed by third parties with related indebtedness that the Borrower, any Subsidiary or any
Unconsolidated Affiliate has guaranteed or as to which any such Person is otherwise obligated. A
Redevelopment Property on which all improvements



Page 22









 




(other than tenant improvements on unoccupied space) related to the development of such
Property have been substantially completed for at least twelve (12) months shall cease to
constitute a Redevelopment Property notwithstanding the fact that such Property has not achieved a
Leasing Rate of at least eighty percent (80%).




     “Regulatory Change” means, with respect to any Lender, any change effective after the
Agreement Date in Applicable Law (including without limitation, Regulation D of the Board of
Governors of the Federal Reserve System) or the adoption or making after such date of any written
interpretation, directive or request applying to a class of banks, including such Lender, of or
under any Applicable Law (whether or not having the force of law and whether or not failure to
comply therewith would be unlawful) by any Governmental Authority or monetary authority charged
with the interpretation or administration thereof or compliance by any Lender with any written
request or directive regarding capital adequacy.



     “Reimbursement Obligation” means the absolute, unconditional and irrevocable obligation of the
Borrower to reimburse the Administrative Agent for any drawing honored by the Administrative Agent
under a Letter of Credit.



     “REIT” means a Person which is properly taxable as a “real estate investment trust” under the
Internal Revenue Code.



     “Requisite Lenders” means, as of any date, Lenders having at least 66-2/3% of the Total
Commitment Amount, or, if the Commitments have been terminated or reduced to zero, Lenders holding
at least 66 2/3% of the principal amount of the Loans then outstanding and Letter of Credit
Liabilities.



     “Reserve for Replacements” means, for any period and with respect to any Property, an amount
equal to (a) the aggregate square footage of all completed space of such Property times (b)
$0.15 times (c) the number of days in such period divided by (d) 365. If
the term Reserve for Replacements is used without reference to any specific Property, then it shall
be determined on an aggregate basis with respect to all Properties and a proportionate share of all
Property of all Unconsolidated Affiliates.



     “Restricted Payment” means: (a) any dividend or other distribution, direct or indirect, on
account of any shares of any class of stock or other Equity Interest of the Borrower or any of its
Subsidiaries now or hereafter outstanding, except a dividend payable solely in shares of that class
of stock to the holders of that class; (b) any redemption, conversion, exchange, retirement,
sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of
any shares of any class of stock or other Equity Interest of the Borrower or any of its
Subsidiaries now or hereafter outstanding; (c) any payment or prepayment of principal of, premium,
if any, or interest on, redemption, conversion, exchange, purchase, retirement, defeasance, sinking
fund or similar payment with respect to, any Subordinated Debt; and (d) any payment made to retire,
or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares
of any class of stock of the Borrower or any of its Subsidiaries now or hereafter outstanding.



     “Retail Property” means a Property which is used primarily as a retail shopping center, which
shopping center may include (a) the sale of goods or merchandise for personal or



Page 23









 







household consumption from a fixed location, and (b) ancillary uses such as office, medical
and restaurant uses.



     “Revolving Loan” means a loan made by a Lender to the Borrower pursuant to Section
2.1(a).



     “Revolving Note” has the meaning given that term in Section 2.11.



     “Secured Indebtedness” means, with respect to any Person, any Indebtedness of such Person that
is secured in any manner by any Lien on any Property and shall include such Person’s Ownership
Share of the Secured Indebtedness of any of such Person’s Unconsolidated Affiliates.



     “Securities Act” means the Securities Act of 1933, as amended from time to time, together with
all rules and regulations issued thereunder.



     “Solvent” means, when used with respect to any Person, that (a) the fair value and the fair
salable value of its assets (excluding any Indebtedness due from any affiliate of such Person) are
each in excess of the fair valuation of its total liabilities (including all contingent
liabilities); (b) such Person is able to pay its debts or other obligations in the ordinary course
as they mature; and (c) such Person has capital not unreasonably small to carry on its business and
all business in which it proposes to be engaged.



     “S&P” means Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies, Inc.



     “Stated Amount” means the amount available to be drawn by a beneficiary under a Letter of
Credit from time to time, as such amount may be increased or reduced from time to time in
accordance with the terms of such Letter of Credit.



     “Subordinated Debt” means Indebtedness for money borrowed of the Borrower or any of its
Subsidiaries that is expressly subordinated in right of payment and otherwise to the Loans and the
other Obligations in a manner satisfactory to the Administrative Agent in its sole and absolute
discretion.



     “Subsidiary” means each Person (a) with respect to which more than fifty percent (50%) of the
stock, capital or income interests are owned, directly or indirectly, by Borrower or (b) the
financial results of which are consolidated under GAAP in the financial statements of Borrower.



     “Substantial Amount” means, at the time of determination thereof, an amount in excess of
thirty percent (30%) of total consolidated assets (exclusive of depreciation) at such time of the
Borrower and its Subsidiaries determined on a consolidated basis.



     “Swingline Commitment” means the Swingline Lender’s obligation to make Swingline Loans
pursuant to Section 2.3 in an amount up to, but not exceeding the amount set forth in
Section 2.3(a).



     “Swingline Lender” means Administrative Agent, in its capacity pursuant to Section
2.3.



Page 24









 





     “Swingline Loan” means a loan made by the Swingline Lender to the Borrower pursuant to
Section 2.3.



     “Swingline Note” means a promissory note of the Borrower substantially in the form of
Exhibit G-2, payable to the order of the Swingline Lender in a principal amount equal to
the amount of the Swingline Commitment as originally in effect and otherwise duly completed.



     “Swingline Termination Date” means the date which is seven (7) Business Days prior to the
Termination Date.



     “Tangible Net Worth” means, for any Person and as of a given date, such Person’s total
consolidated stockholders’ equity plus, in the case of the Borrower, increases in
accumulated depreciation and amortization accrued after the Agreement Date, minus (to the
extent reflected in determining stockholders’ equity of such Person): (a) the amount of any
write-up in the book value of any assets contained in any balance sheet resulting from revaluation
thereof or any write-up in excess of the cost of such assets acquired; and (b) the aggregate of all
amounts appearing on the assets side of any such balance sheet for franchises, licenses, permits,
patents, patent applications, copyrights, trademarks, service marks, trade names, goodwill,
treasury stock, experimental or organizational expenses and other like assets which would be
classified as intangible assets under GAAP, all determined on a consolidated basis.



     “Taxes” has the meaning given that term in Section 3.12.



     “Termination Date” means January 17, 2009, as such date may be extended in accordance with
Section 2.15.



     “Total Budgeted Cost” means, with respect to a Development Property or a Redevelopment
Property, and at any time, the aggregate amount of all costs budgeted to be paid, incurred or
otherwise expended or accrued by the Borrower, a Subsidiary or an Unconsolidated Affiliate with
respect to such Property to achieve one hundred percent (100%) occupancy, including without
limitation, all amounts budgeted with respect to all of the following: (a) acquisition of land and
any related improvements; (b) a reasonable and appropriate reserve for construction interest; (c) a
reasonable and appropriate operating deficit reserve; (d) tenant improvements, (e) leasing
commissions and (f) other hard and soft costs associated with the development or redevelopment of
such Property. With respect to any Property to be developed in more than one phase, the Total
Budgeted Cost shall exclude budgeted costs (other than costs relating to acquisition of
land and related improvements) to the extent relating to any phase for which (i) construction has
not yet commenced and (ii) a binding construction contract has not been entered into by the
Borrower, any other Subsidiary or any Unconsolidated Affiliate, as the case may be.



     “Total Commitment Amount” means, at any time, the then aggregate amount of the Commitments of
all Lenders hereunder. The Total Commitment Amount is $275,000,000 as of the Effective Date, and
is subject to increase in accordance with Section 2.14.



     “Total Liabilities” means, as to any Person as of a given date, all liabilities which would,
in conformity with GAAP, be properly classified as a liability on a consolidated balance sheet of



Page 25









 







such Person as of such date (excluding any liability associated with tenant deposits),
together with (without duplication):




     (a) all Indebtedness of such Person (whether or not Nonrecourse Indebtedness and
whether or not secured by a Lien), including without limitation, Capitalized Lease
Obligations;




     (b) all accounts payable and accrued expenses of such Person;




     (c) all purchase and repurchase obligations and forward commitments of such Person to
the extent such obligations or commitments are evidenced by a binding purchase agreement
(forward commitments shall include without limitation (i) forward equity commitments and
(ii) commitments to purchase any Property under development, redevelopment or renovation);




     (d) all unfunded obligations of such Person;




     (e) all lease obligations of such Person (including ground leases) to the extent
required under GAAP to be classified as a liability on the balance sheet of such Person;




     (f) all Contingent Obligations of such Person including, without limitation, all
Guarantees of Indebtedness by such Person;




     (g) all liabilities of any Unconsolidated Affiliate of such Person, which liabilities
such Person has Guaranteed or is otherwise obligated on a recourse basis; and




     (h) such Person’s Ownership Share of the Indebtedness of any Unconsolidated Affiliate
of such Person, including Nonrecourse Indebtedness of such Person.



     For purposes of clauses (c) and (d) of this definition, the amount of Total Liabilities of a
Person at any given time in respect of (x) a contract to purchase or otherwise acquire unimproved
or fully developed Property shall be equal to either (i) the total purchase price payable by such
Person under the contract if, at such time, the seller of such Property would be entitled to
specifically enforce the contract against such Person, or (ii) the aggregate amount of due
diligence deposits, earnest money payments and other similar payments made by such Person under the
contract which, at such time, would be subject to forfeiture upon termination of the contract and
(y) a contract relating to the acquisition of Property which the seller is required to develop or
renovate prior to, and as a condition precedent to, such acquisition, shall equal the maximum
amount reasonably estimated to be payable by such Person under the contract assuming performance by
the seller of its obligations under the contract, which amount shall include, without limitation,
any amounts payable after consummation of such acquisition which may based on certain performance
levels or other related criteria.



     For purposes of this definition, if the assets of a Subsidiary of a Person consist solely of
Equity Interests in one Unconsolidated Affiliate of such Person and such Person is not otherwise
obligated in respect of the Indebtedness of such Unconsolidated Affiliate, then only such



Page 26









 







Person’s Ownership Share of the Indebtedness of such Unconsolidated Affiliate shall be included as
Total Liabilities of such Person.



     “Type” with respect to any Revolving Loan, refers to whether such Loan is a LIBOR Loan or a
Base Rate Loan, or in the case of a Bid Rate Loan only, an Absolute Rate Loan or a LIBOR Margin
Loan.



     “UCC” means the Uniform Commercial Code as in effect in any applicable jurisdiction.



     “Unconsolidated Affiliate” means, with respect to any Person, any other Person in whom such
Person holds an Investment, which Investment is accounted for in the financial statements of such
Person on an equity basis of accounting and whose financial results would not be consolidated under
GAAP with the financial results of such Person on the consolidated financial statements of such
Person, provided, however, that as of the Effective Date, Unconsolidated Affiliate
shall not include the following: (a) those Persons listed on Schedule 1.1(C)
attached hereto, or (b) Persons who would otherwise be included as Unconsolidated Affiliates, in
which the Investment represents not greater than fifty percent (50%) of the total ownership of such
Person and Borrower has received Requisite Lender approval with respect to such exclusion.
Any exclusion from “Unconsolidated Affiliate” by operation of either subclause (a) or (b) preceding
shall remain in effect if and so long as such Person remains unconsolidated with Borrower or a
Subsidiary in accordance with GAAP.



     “Unencumbered Net Operating Income” means, for any period, the aggregate Net Operating Income
for such period of (a) all Pool Assets other than Eligible Encumbered Assets, plus (b) Borrower’s
Ownership Share of the aggregate Net Operating Income with respect to Properties unencumbered by
Liens as of the last day of such period and owned by Subsidiaries or Unconsolidated Affiliates.



     “Unfunded Liabilities” means, with respect to any Plan at any time, the amount (if any) by
which (a) the value of all benefit liabilities under such Plan, determined on a plan termination
basis using the assumptions prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds
(b) the fair market value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then most recent
valuation date for such Plan, but only to the extent that such excess represents a potential
liability of a member of the ERISA Group to the PBGC or any other Person under Title IV of ERISA.



     “Unsecured Interest Expense” means Interest Expense on Borrower’s and any Subsidiary’s
Unsecured Liabilities, plus Borrower’s Ownership Share of Interest Expense on Unsecured
Liabilities with respect to Unconsolidated Affiliates.



     “Unsecured Liabilities” means, as to any Person as of a given date, the sum
of the following (without duplication): (a) all liabilities which would, in conformity with
GAAP, be properly classified as a liability on a balance sheet of such Person as at such date;
plus (b) all Indebtedness of such Person; minus (c) all Secured Indebtedness of
such Person.



     “Voting Stock” means capital stock issued by a corporation, or equivalent interests in any
other Person, the holders of which are ordinarily, in the absence of contingencies, entitled to



Page 27









 







vote for the election of directors (or persons performing similar functions) of such Person,
even if the right so to vote has been suspended by the happening of such a contingency.



     “Wells Fargo” means Wells Fargo Bank, National Association, and its successors and permitted
assigns.



     “Wholly Owned Subsidiary” means any Subsidiary of a Person in respect of which all of the
equity securities or other ownership interests (other than, in the case of a corporation,
directors’ qualifying shares) are at the time directly or indirectly owned or controlled by such
Person or one or more other Subsidiaries of such Person or by such Person and one or more other
Subsidiaries of such Person.



Section 1.2 General; References to San Francisco Time.




     Unless otherwise indicated, all accounting terms, ratios and measurements shall be interpreted
or determined in accordance with GAAP in effect as of the Agreement Date, and all financial
reporting by Borrower shall be on a consolidated basis. References in this Agreement to
“Sections”, “Articles”, “Exhibits” and “Schedules” are to sections, articles, exhibits and
schedules herein and hereto unless otherwise indicated. References in this Agreement to any
document, instrument or agreement (a) shall include all exhibits, schedules and other attachments
thereto, (b) shall include all documents, instruments or agreements issued or executed in
replacement thereof, to the extent permitted hereby and (c) shall mean such document, instrument or
agreement, or replacement or predecessor thereto, as amended, supplemented, restated or otherwise
modified from time to time to the extent permitted hereby and in effect at any given time.
Wherever from the context it appears appropriate, each term stated in either the singular or plural
shall include the singular and plural, and pronouns stated in the masculine, feminine or neuter
gender shall include the masculine, the feminine and the neuter. Unless explicitly set forth to
the contrary, a reference to “Subsidiary” means a Subsidiary of the Borrower or a Subsidiary of
such Subsidiary and a reference to an “Affiliate” means a reference to an Affiliate of the
Borrower. Titles and captions of Articles, Sections, subsections and clauses in this Agreement are
for convenience only, and neither limit nor amplify the provisions of this Agreement. Unless
otherwise indicated, all references to time are references to San Francisco, California time.
Exhibits D, E, F and K attached hereto may be modified from
time to time by Administrative Agent and Borrower as appropriate to facilitate the borrowings
contemplated thereby.



ARTICLE II CREDIT FACILITY




Section 2.1 Revolving Loans.




     (a) Generally. Subject to the terms and conditions hereof, including without
limitation, Section 2.14, during the period from the Effective Date to but excluding the
Termination Date, each Lender severally and not jointly agrees to make Revolving Loans to the
Borrower in an aggregate principal amount at any one time outstanding up to, but not to exceed, the
lesser of (i) the amount of such Lender’s Commitment and (ii) such Lender’s Pro Rata Share of the
Maximum Availability. Subject to the terms and conditions of this Agreement, during the period
from the Effective Date to but excluding the Termination Date, the Borrower may borrow,



Page 28









 







repay and reborrow Revolving Loans hereunder. This Agreement combines and fully amends and
restates the Prior Credit Agreement. The principal amount outstanding under the Prior Credit
Agreement as of the date hereof (after taking into account any paydowns in accordance with
Section 6.1(c)) shall be deemed to be Loan proceeds disbursed hereunder and under the
Notes, with each Lender having funded a portion of such Loan proceeds in an amount equal to its
respective Pro Rata Share thereof; such initial outstanding advances (together with issued and
undrawn Letters of Credit) are set forth on Schedule 1.1 attached hereto. Additionally,
so long as Borrower remains in compliance with the aggregate permitted sublimit on Bid Rate Loans
set forth in Section 2.4(a), each Bid Rate Loan outstanding under the Prior Credit
Agreement as of the Effective Date shall remain outstanding hereunder, provided that the Lender
with respect to such Bid Rate Loan (A) will remain a lender under this Agreement and (B) consents
in writing to allowing such Bid Rate Loan to remain outstanding.



     (b) Requesting Revolving Loans. The Borrower shall give the Administrative Agent
notice pursuant to a Notice of Borrowing of each borrowing of Revolving Loans. Each Notice of
Borrowing shall be delivered to the Administrative Agent before 9:00 a.m. (i) in the case of LIBOR
Loans, on the date three (3) Business Days prior to the proposed date of such borrowing and (ii) in
the case of Base Rate Loans, on the date one (1) Business Day prior to the proposed date of such
borrowing. The Administrative Agent shall transmit by telecopy the Notice of Borrowing (or the
information contained in such Notice of Borrowing) to each Lender promptly upon receipt by the
Administrative Agent. Each Notice of Borrowing shall be irrevocable once received by
Administrative Agent and binding on the Borrower.



     (c) Disbursements of Revolving Loan Proceeds. No later than 9:00 a.m. on the date
specified in the Notice of Borrowing, each Lender shall make available for the account of its
applicable Lending Office to the Administrative Agent, in immediately available funds, the proceeds
of the Revolving Loan to be made by such Lender. With respect to Revolving Loans to be made after
the Effective Date, unless the Administrative Agent shall have been notified by any Lender prior to
the specified date of borrowing that such Lender does not intend to make available to the
Administrative Agent the Revolving Loan to be made by such Lender on such date, the Administrative
Agent may assume that such Lender will make the proceeds of such Revolving Loan available to the
Administrative Agent on the date of the requested borrowing as set forth in the Notice of Borrowing
and the Administrative Agent may (but shall not be obligated to), in reliance upon such assumption,
make available to the Borrower the amount of such Revolving Loan to be provided by such Lender.
Subject to satisfaction of the applicable conditions set forth in Article VI for such
borrowing, the Administrative Agent shall make the proceeds of such borrowing available to the
Borrower no later than 11:00 a.m. on the date and at the account specified by the Borrower in such
Notice of Borrowing; provided, however, that any direct disbursements from the Loan
which are made by means of wire transfer, shall be subject to the provisions of subsection (d)
below.



     (d) Funds Transfer Disbursements.




     (i) Borrower hereby authorizes Administrative Agent to disburse the proceeds of the
Loan pursuant to the Loan Documents as requested by an authorized signatory pursuant to a
completed Transfer Authorizer Designation in the form of Exhibit M attached hereto
to the account designated thereon. Borrower agrees to be bound by any



Page 29









 







transfer request: (A) authorized or transmitted by Borrower or, (B) made in Borrower’s
name and accepted by Administrative Agent in good faith and in compliance with these
transfer instructions, even if not properly authorized by Borrower. Borrower further agrees
and acknowledges that Administrative Agent may rely solely on any bank routing number or
identifying bank account number or name provided by Borrower to effect a wire or funds
transfer even if the information provided by Borrower identifies a different bank or account
holder than named by Borrower. Administrative Agent is not obligated or required in any way
to take any actions to detect errors in information provided by Borrower.




     (ii) If Administrative Agent takes any actions in an attempt to detect errors in the
transmission or content of transfer requests or takes any actions in an attempt to detect
unauthorized funds transfer requests, Borrower agrees that no matter how many times
Administrative Agent takes these actions Administrative Agent will not in any situation be
liable for failing to take or correctly perform these actions in the future and such actions
shall not become any part of the transfer disbursement procedures authorized under this
provision, the Loan Documents, or any agreement between Administrative Agent, Lenders and
Borrower. Borrower agrees to notify Administrative Agent of any errors in the transfer of
any funds or of any unauthorized or improperly authorized transfer requests within fourteen
(14) days after Administrative Agent’s confirmation to Borrower of such transfer.
Administrative Agent will, in its sole discretion, determine the funds transfer system and
the means by which each transfer will be made.




     (iii) Administrative Agent may delay or refuse to accept a funds transfer request if
the transfer would: (A) violate the terms of this authorization; (B) require use of a bank
unacceptable to Administrative Agent or prohibited by any Governmental Authority; (C) cause
Administrative Agent to violate any Federal Reserve or other regulatory risk control program
or guideline, or (D) otherwise cause Administrative Agent to violate any applicable law or
regulation.




     (iv) Administrative Agent shall not be liable to Borrower or any other parties for (A)
errors, acts or failures to act of others, including other entities, banks, communications
carriers or clearinghouses, through which Borrower’s transfers may be made or information
received or transmitted, and no such entity shall be deemed an agent of Administrative
Agent, (B) any loss, liability or delay caused by fires, earthquakes, wars, civil
disturbances, power surges or failures, acts of government, labor disputes, failures in
communications networks, legal constraints or other events beyond Administrative Agent’s
control, or (C) any special, consequential, indirect or punitive damages, whether or not (1)
any claim for these damages is based on tort or contract or (2) Administrative Agent or
Borrower knew or should have known the likelihood of these damages in any situation.
Administrative Agent makes no representations or warranties other than those expressly made
in this Agreement.



Section 2.2 Letters of Credit.




     (a) Letters of Credit. Subject to the terms and conditions of this Agreement, the
Administrative Agent, on behalf of the Lenders, agrees to issue for the account of the Borrower



Page 30









 







during the period from and including the Effective Date to, but excluding, the L/C Termination
Date one or more standby letters of credit (each a “Letter of Credit”) up to a maximum aggregate
Stated Amount at any one time outstanding not to exceed the L/C Commitment Amount.



     (b) Terms of Letters of Credit. At the time of issuance, the amount, form, terms and
conditions of each Letter of Credit shall be subject to approval by the Administrative Agent and
the Borrower. Notwithstanding the foregoing, in no event may (i) the expiration date of any Letter
of Credit extend beyond the L/C Termination Date, (ii) any Letter of Credit have initial duration
in excess of one year, or (iii) any Letter of Credit contain an automatic renewal provision which
(x) would allow such Letter of Credit to be renewed more often than annually or (y) would allow,
after giving effect to all renewal periods, the expiration date of such Letter of Credit to extend
beyond the L/C Termination Date. The initial Stated Amount of each Letter of Credit shall be at
least $500,000.



     (c) Requests for Issuance of Letters of Credit. The Borrower shall give the
Administrative Agent written notice at least five (5) Business Days prior to the requested date of
issuance of a Letter of Credit, such notice to describe in reasonable detail the proposed terms of
such Letter of Credit and the nature of the transactions or obligations proposed to be supported by
such Letter of Credit, and in any event shall set forth with respect to such Letter of Credit (i)
the proposed initial Stated Amount, (ii) the beneficiary, and (iii) expiration date. The Borrower
shall also execute and deliver such customary applications and agreements for standby letters of
credit, and other forms as requested from time to time by the Administrative Agent. Provided the
Borrower has given the notice prescribed by the first sentence of this subsection and delivered
such application and agreements referred to in the preceding sentence, subject to the other terms
and conditions of this Agreement, including the satisfaction of any applicable conditions precedent
set forth in Article VI, the Administrative Agent shall issue the requested Letter of
Credit on the requested date of issuance for the benefit of the stipulated beneficiary but in no
event prior to the date five (5) Business Days following the date after which the Administrative
Agent has received all of the items required to be delivered to it under this subsection. Upon the
written request of the Borrower, the Administrative Agent shall deliver to the Borrower a copy of
(i) any Letter of Credit proposed to be issued hereunder prior to the issuance thereof and (ii)
each issued Letter of Credit within a reasonable time after the date of issuance thereof. To the
extent any term of a Letter of Credit Document is inconsistent with a term of any Loan Document,
the term of such Loan Document shall control.



     (d) Reimbursement Obligations. Upon receipt by the Administrative Agent from the
beneficiary of a Letter of Credit of any demand for payment under such Letter of Credit, the
Administrative Agent shall promptly notify the Borrower of the amount to be paid by the
Administrative Agent as a result of such demand and the date on which payment is to be made by the
Administrative Agent to such beneficiary in respect of such demand. The Borrower hereby
absolutely, unconditionally and irrevocably agrees to pay and reimburse the Administrative Agent
for the amount of each demand for payment under such Letter of Credit at or prior to the date on
which payment is to be made by the Administrative Agent to the beneficiary thereunder, without
presentment, demand, protest or other formalities of any kind. Upon receipt by the Administrative
Agent of any payment in respect of any Reimbursement Obligation, the Administrative Agent shall
promptly pay to each Lender that has acquired a



Page 31









 







participation therein under the second sentence of Section 2.2(i) such Lender’s Pro
Rata Share of such payment.



     (e) Manner of Reimbursement. Upon its receipt of a notice referred to in the
immediately preceding subsection (d), the Borrower shall advise the Administrative Agent whether or
not the Borrower intends to borrow hereunder to finance its obligation to reimburse the
Administrative Agent for the amount of the related demand for payment and, if it does, the Borrower
shall submit a timely Notice of Borrowing as provided in Section 2.1(b). If the Borrower
fails to so advise the Administrative Agent, or if the Borrower fails to reimburse the
Administrative Agent for a demand for payment under a Letter of Credit by the date of such payment,
then (i) if the applicable conditions contained in Article VI would permit the making of
Revolving Loans, the Borrower shall be deemed to have requested a borrowing of Revolving Loans
(which shall be Base Rate Loans) in an amount equal to the unpaid Reimbursement Obligation and the
Administrative Agent shall give each Lender prompt notice of the amount of the Revolving Loan to be
made available to the Administrative Agent not later than 11:00 a.m. and (ii) if such conditions
would not permit the making of Revolving Loans, the provisions of subsection (j) of this Section
shall apply.



     (f) Effect of Letters of Credit on Commitments. Upon the issuance by the
Administrative Agent of any Letter of Credit and until such Letter of Credit shall have expired or
been terminated, the Commitment of each Lender shall be deemed to be utilized for all purposes of
this Agreement in an amount equal to the product of (i) such Lender’s Pro Rata Share and (ii) the
sum of (A) the Stated Amount of such Letter of Credit plus (B) any related Reimbursement
Obligations then outstanding.



     (g) Administrative Agent’s Duties Regarding Letters of Credit; Unconditional Nature of
Reimbursement Obligation. In examining documents presented in connection with drawings under
Letters of Credit and making payments under such Letters of Credit against such documents, the
Administrative Agent shall only be required to use the same standard of care as it uses in
connection with examining documents presented in connection with drawings under letters of credit
in which it has not sold participations and making payments under such letters of credit. The
Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by, the
respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the
foregoing, neither the Administrative Agent nor any of the Lenders shall be responsible for (i) the
form, validity, sufficiency, accuracy, genuineness or legal effects of any document submitted by
any party in connection with the application for and issuance of or any drawing honored under any
Letter of Credit even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (ii) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any Letter of Credit, or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason; (iii) failure of the beneficiary of any Letter of Credit to comply
fully with conditions required in order to draw upon such Letter of Credit; (iv) errors, omissions,
interruptions or delays in transmission or delivery of any messages, by mail, cable, telex,
telecopy or otherwise, whether or not they be in cipher; (v) errors in interpretation of technical
terms; (vi) any loss or delay in the transmission or otherwise of any document required in order to
make a drawing under any Letter of Credit, or of the proceeds thereof; (vii) the misapplication by
the beneficiary of any Letter of Credit, or of the proceeds of any drawing



Page 32









 







under any Letter of Credit; or (viii) any consequences arising from causes beyond the control
of the Administrative Agent or the Lenders. None of the above shall affect, impair or prevent the
vesting of any of the Administrative Agent’s rights or powers hereunder. Any action taken or
omitted to be taken by the Administrative Agent under or in connection with any Letter of Credit,
if taken or omitted in the absence of gross negligence or willful misconduct, shall not create
against the Administrative Agent any liability to the Borrower or any Lender. In this connection,
the obligation of the Borrower to reimburse the Administrative Agent for any drawing made under any
Letter of Credit shall be absolute, unconditional and irrevocable and shall be paid strictly in
accordance with the terms of this Agreement or any other applicable Letter of Credit Document under
all circumstances whatsoever, including without limitation, the following circumstances: (A) any
lack of validity or enforceability of any Letter of Credit Document or any term or provisions
therein; (B) any amendment or waiver of or any consent to departure from all or any of the Letter
of Credit Documents; (C) the existence of any claim, setoff, defense or other right which the
Borrower may have at any time against the Administrative Agent, any Lender, any beneficiary of a
Letter of Credit or any other Person, whether in connection with this Agreement, the transactions
contemplated hereby or in the Letter of Credit Documents or any unrelated transaction; (D) any
breach of contract or dispute between the Borrower, the Administrative Agent, any Lender or any
other Person; (E) any demand, statement or any other document presented under a Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein
or made in connection therewith being untrue or inaccurate in any respect whatsoever; (F) any
non-application or misapplication by the beneficiary of a Letter of Credit or of the proceeds of
any drawing under such Letter of Credit; (G) payment by the Administrative Agent under the Letter
of Credit against presentation of a draft or certificate which does not strictly comply with the
terms of the Letter of Credit; and (H) any other act, omission to act, delay or circumstance
whatsoever that might, but for the provisions of this Section, constitute a legal or equitable
defense to or discharge of the Borrower’s Reimbursement Obligations.



     (h) Amendments, Etc. The issuance by the Administrative Agent of any amendment,
supplement or other modification to any Letter of Credit shall be subject to the same conditions
applicable under this Agreement to the issuance of new Letters of Credit (including, without
limitation, that the request therefor be made through the Administrative Agent), and no such
amendment, supplement or other modification shall be issued unless either (i) the respective Letter
of Credit affected thereby would have complied with such conditions had it originally been issued
hereunder in such amended, supplemented or modified form or (ii) the Requisite Lenders shall have
consented thereto. In connection with any such amendment, supplement or other modification, the
Borrower shall pay the fees, if any, payable under the last sentence of Section 3.6(e).



     (i) Lenders’ Participation in Letters of Credit. Immediately upon the issuance by the
Administrative Agent of any Letter of Credit each Lender shall be deemed to have absolutely,
irrevocably and unconditionally purchased and received from the Administrative Agent, without
recourse or warranty, an undivided interest and participation to the extent of such Lender’s Pro
Rata Share of the liability of the Administrative Agent with respect to such Letter of Credit and
each Lender thereby shall absolutely, unconditionally and irrevocably assume, as primary obligor
and not as surety, and shall be unconditionally obligated to the Administrative Agent to pay and
discharge when due, such Lender’s Pro Rata Share of the Administrative Agent’s



Page 33









 







liability under such Letter of Credit. In addition, upon the making of each payment by a
Lender to the Administrative Agent in respect of any Letter of Credit pursuant to the immediately
following subsection (j), such Lender shall, automatically and without any further action on the
part of the Administrative Agent or such Lender, acquire (i) a participation in an amount equal to
such payment in the Reimbursement Obligation owing to the Administrative Agent by the Borrower in
respect of such Letter of Credit and (ii) a participation in a percentage equal to such Lender’s
Pro Rata Share in any interest or other amounts payable by the Borrower in respect of such
Reimbursement Obligation (other than the Fees payable to the Administrative Agent pursuant to the
last sentence of Section 3.6(e)).



     (j) Payment Obligation of Lenders. Each Lender severally agrees to pay to the
Administrative Agent on demand in immediately available funds in Dollars the amount of such
Lender’s Pro Rata Share of each drawing paid by the Administrative Agent under each Letter of
Credit to the extent such amount is not reimbursed by the Borrower pursuant to Section
2.2(d). Each such Lender’s obligation to make such payments to the Administrative Agent under
this subsection, and the Administrative Agent’s right to receive the same, shall be absolute,
irrevocable and unconditional and shall not be affected in any way by any circumstance whatsoever,
including without limitation, (i) the failure of any other Lender to make its payment under this
subsection, (ii) the financial condition of the Borrower or any other Loan Party, (iii) the
existence of any Default or Event of Default, including any Event of Default described in
Section 11.1(e) or Section 11.1(f) or (iv) the termination of the Commitments.
Each such payment to the Administrative Agent shall be made without any offset, abatement,
withholding or deduction whatsoever.



     (k) Information to Lenders. Promptly following any change in Letters of Credit
outstanding, the Administrative Agent shall deliver to each Lender and the Borrower a notice
describing the aggregate amount of all Letters of Credit outstanding at such time. Upon the
request of any Lender from time to time, the Administrative Agent shall deliver any other
information reasonably requested by such Lender with respect to each Letter of Credit then
outstanding. Other than as set forth in this subsection, the Administrative Agent shall have no
duty to notify the Lenders regarding the issuance or other matters regarding Letters of Credit
issued hereunder. The failure of the Administrative Agent to perform its requirements under this
subsection shall not relieve any Lender from its obligations under Section 2.2(j).



Section 2.3 Swingline Loans.




     (a) Swingline Loans. Subject to the terms and conditions hereof, including without
limitation Section 2.14, the Swingline Lender agrees to make Swingline Loans to the
Borrower, during the period from the Effective Date to but excluding the Swingline Termination
Date, in an aggregate principal amount at any one time outstanding up to, but not exceeding,
$35,000,000, as such amount may be reduced from time to time in accordance with the terms hereof.
If at any time the aggregate principal amount of the Swingline Loans outstanding at such time
exceeds the Swingline Commitment in effect at such time, the Borrower shall immediately pay the
Administrative Agent for the account of the Swingline Lender the amount of such excess. Subject to
the terms and conditions of this Agreement, the Borrower may borrow, repay and reborrow Swingline
Loans hereunder.



Page 34









 





     (b) Procedure for Borrowing Swingline Loans. The Borrower shall give the
Administrative Agent and the Swingline Lender notice either telephonically or pursuant to a Notice
of Swingline Borrowing, in the form of Exhibit D-2 attached hereto, delivered no later than
9:00 a.m. on the proposed date of such borrowing. Any such telephonic notice shall include all
information to be specified in a written Notice of Swingline Borrowing, and shall be followed
promptly by delivery from Borrower of a completed Notice of Swingline Borrowing. Not later than
11:00 a.m. on the date of the requested Swingline Loan and subject to satisfaction of the
applicable conditions set forth in Article VI for such borrowing, the Swingline Lender
shall make the proceeds of such Swingline Loan available to the Borrower in Dollars, in immediately
available funds, at the account specified by the Borrower in the Notice of Swingline Borrowing.



     (c) Interest. Swingline Loans shall bear interest at a per annum rate equal to the
Base Rate as in effect from time to time or at such other rate or rates as the Borrower and the
Swingline Lender may agree from time to time in writing. All accrued and unpaid interest on
Swingline Loans shall be payable on the dates and in the manner provided in Section 2.5
with respect to interest on Base Rate Loans (except as the Swingline Lender and the Borrower may
otherwise agree in writing in connection with any particular Swingline Loan).



     (d) Swingline Loan Amounts, Etc. Each Swingline Loan shall be in the minimum amount
of $500,000 and integral multiples of $100,000 in excess thereof, or such other minimum amounts
agreed to by the Swingline Lender and the Borrower. Any voluntary prepayment of a Swingline Loan
must be in integral multiples of $100,000 or the aggregate principal amount of all outstanding
Swingline Loans (or such other minimum amounts upon which the Swingline Lender and the Borrower may
agree) and in connection with any such prepayment, the Borrower must give the Swingline Lender
prior written notice thereof no later than 2:00 p.m. on the day prior to the date of such
prepayment. Voluntary prepayments of any Swingline Loan shall not be subject to any penalty or
premium (with the exception of any breakage fee associated therewith). The Swingline Loans shall,
in addition to this Agreement, be evidenced by the Swingline Note.



     (e) Repayment and Participations of Swingline Loans.




     (i) The Borrower agrees to repay each Swingline Loan within three (3) Business Days of
demand therefor by the Swingline Lender and, in any event, within seven (7) Business Days
after the date such Swingline Loan was made. Notwithstanding the foregoing, the Borrower
shall repay the entire outstanding principal amount of, and all accrued but unpaid interest
on, the Swingline Loans on the Swingline Termination Date (or such earlier date as the
Swingline Lender and the Borrower may agree in writing).




     (ii) If (A), as of 10:00 a.m. on the sixth (6th) Business Day following the
funding of a particular Swingline Loan, Borrower has neither (1) repaid the Swingline Loan
in full, notified the Swingline Lender in writing that Borrower intends to repay such
Swingline Loan in full on the next Business Day, nor timely delivered a Notice of Borrowing
requesting a proposed funding date no later than the seventh (7th) Business Day
after such Swingline funding date, with respect to a Revolving Loan in a principal amount
sufficient to repay such Swingline Loan in full or (B), as of 11:00 a.m. on the
seventh (7th) Business Day following the funding of a particular Swingline Loan



Page 35









 







Borrower has not repaid such Swingline Loan in full or the conditions precedent to any
requested Revolving Loan the proceeds of which were to have been used (in whole or in part)
to repay such Swingline Loan have not been satisfied, or (C) at any time prior to
the repayment of any Swingline Loan, an Event of Default shall exist or the Loan shall be
accelerated, then, in lieu of demanding repayment of any outstanding Swingline Loan from the
Borrower, the Swingline Lender may, on behalf of the Borrower (which hereby irrevocably
directs the Swingline Lender to act on its behalf), request a borrowing of Base Rate Loans
from the Lenders in an amount equal to the principal balance of such Swingline Loan.




     (iii) The limitations contained in Section 3.5(a) shall not apply to any
borrowing of Base Rate Loans made pursuant to this subsection. The Swingline Lender shall
give notice to the Administrative Agent of any such borrowing of Base Rate Loans not later
than 11:00 a.m. at least one Business Day prior to the proposed date of such borrowing.




     (iv) Each Lender will make available to the Administrative Agent at the Principal
Office for the account of the Swingline Lender, in immediately available funds, the proceeds
of the Base Rate Loan to be made by such Lender. The Administrative Agent shall pay the
proceeds of such Base Rate Loans to the Swingline Lender, which shall apply such proceeds to
repay such Swingline Loan.




     (v) If the Lenders are prohibited from making Loans required to be made under this
subsection for any reason whatsoever, including without limitation, the occurrence of any of
the Defaults or Events of Default described in Sections 11.1(e) or
11.1(f), each Lender shall purchase from the Swingline Lender, without recourse or
warranty, an undivided interest and participation to the extent of such Lender’s Pro Rata
Share of such Swingline Loan, by directly purchasing a participation in such Swingline Loan
in such amount and paying the proceeds thereof to the Administrative Agent for the account
of the Swingline Lender in Dollars and in immediately available funds. A Lender’s
obligation to purchase such a participation in a Swingline Loan shall be absolute and
unconditional and shall not be affected by any circumstance whatsoever, including without
limitation, (i) any claim of setoff, counterclaim, recoupment, defense or other right which
such Lender or any other Person may have or claim against the Administrative Agent, the
Swingline Lender or any other Person whatsoever, (ii) the occurrence or continuation of a
Default or Event of Default (including without limitation, any of the Defaults or Events of
Default described in Sections 11.1(e) or 11.1(f), or the termination
of any Lender’s Commitment, (iii) the existence (or alleged existence) of an event or
condition which has had or could have a Material Adverse Effect, (iv) any breach of any Loan
Document by the Administrative Agent, any Lender or the Borrower or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
If such amount is not in fact made available to the Swingline Lender by any Lender, the
Swingline Lender shall be entitled to recover such amount on demand from such Lender,
together with accrued interest thereon for each day from the date of demand thereof, at the
Federal Funds Rate.



Page 36









 






     (vi) If such Lender does not pay such amount forthwith upon the Swingline Lender’s
demand therefor, and until such time as such Lender makes the required payment, the
Swingline Lender shall be deemed to continue to have outstanding Swingline Loans in the
amount of such unpaid participation obligation for all purposes of the Loan Documents (other
than those provisions requiring the other Lenders to purchase a participation therein).
Further, such Lender shall be deemed to have assigned any and all payments made of principal
and interest on its Loans, and any other amounts due it hereunder, to the Swingline Lender
to fund Swingline Loans in the amount of the participation in Swingline Loans that such
Lender failed to purchase pursuant to this Section until such amount has been purchased (as
a result of such assignment or otherwise).



Section 2.4 Bid Rate Loans.




     (a) Bid Rate Loans. In addition to borrowings of Revolving Loans but subject to the
limitations of Section 2.13, at any time during the period from the Effective Date to but
excluding the Termination Date, the Borrower may, as set forth in this Section, request the Lenders
to make offers to make Bid Rate Loans to the Borrower in Dollars, in an aggregate principal amount
at any one time outstanding up to, but not exceeding, fifty percent (50%) of the then Commitments
under the Loan (initially, such 50% amount is $137,500,000). The Lenders may, but shall have no
obligation to, make such offers and the Borrower may, but shall have no obligation to, accept any
such offers in the manner set forth in this Section.



     (b) Requests for Bid Rate Loans. When the Borrower in its discretion wishes to
request from the Lenders offers to make Bid Rate Loans, it shall give the Administrative Agent
notice (a “Bid Rate Quote Request”) so as to be received no later than 9:00 a.m. on (x) the
Business Day immediately preceding the date of borrowing proposed therein, in the case of an
Absolute Rate Auction and (y) the date four (4) Business Days prior to the proposed date of
borrowing, in the case of a LIBOR Auction. The Administrative Agent shall deliver to each Lender a
copy of each Bid Rate Quote Request promptly upon receipt thereof by the Administrative Agent. The
Borrower may request offers to make Bid Rate Loans for up to three (3) different Interest Periods
in each Bid Rate Quote Request (for which purpose Interest Periods in different lettered clauses of
the definition of the term “Interest Period” shall be deemed to be different Interest Periods even
if they are coterminous); provided that the request for each separate Interest Period shall be
deemed to be separate borrowings (each a “Bid Rate Borrowing”). Each Bid Rate Quote Request shall
be substantially in the form of Exhibit K-1 and shall specify as to each Bid Rate Borrowing
all of the following:




     (i) the proposed date of such Bid Rate Borrowing, which shall be a Business Day;




     (ii) the aggregate amount of such Bid Rate Borrowing which shall be in a minimum amount
of $2,000,000 and integral multiples of $500,000 in excess thereof which shall not cause any
of the limits specified in Section 2.13 to be violated;




     (iii) whether the Bid Rate Quote Request is for LIBOR Margin Loans or Absolute Rate
Loans; and



Page 37









 






     (iv) the duration of the Interest Period applicable thereto, which shall not extend
beyond the Termination Date.


The Borrower shall not deliver more than one (1) Bid Rate Quote Request during any three (3)
Business Day period, or more than four (4) Bid Rate Quote Requests during any calendar month.




     (c) Bid Rate Quotes.




     (i) Each Lender may submit to the Administrative Agent one or more Bid Rate Quotes,
each containing an offer to make a Bid Rate Loan in response to any Bid Rate Quote Request;
provided that, if the Borrower’s request under Section 2.4(b) specified more than
one Interest Period, such Lender may make a single submission containing only one Bid Rate
Quote for each such Interest Period. Each Bid Rate Quote must be submitted to the
Administrative Agent not later than 7:30 a.m. (x) on the proposed date of borrowing, in the
case of an Absolute Rate Auction and (y) on the date three Business Days prior to the
proposed date of borrowing, in the case of a LIBOR Auction, and in either case the
Administrative Agent shall disregard any Bid Rate Quote received after such time; provided
that the Lender then acting as the Administrative Agent may submit a Bid Rate Quote only if
it notifies the Borrower of the terms of the offer contained therein not later than thirty
(30) minutes prior to the latest time by which the Lenders must submit applicable Bid Rate
Quotes. Subject to Articles VI and XI, any Bid Rate Quote so made
shall be irrevocable. Such Bid Rate Loans may be funded by a Lender’s Designated Lender (if
any) as provided in Section 13.6(d); provided, such Lender shall not be
required to specify in its Bid Rate Quote whether such Bid Rate Loan will be funded by such
Designated Lender.




     (ii) Each Bid Rate Quote made by a Lender shall be substantially in the form of
Exhibit K-2 and shall specify:




     (A) the proposed date of borrowing and the Interest Period therefor;




     (B) the principal amount of the Bid Rate Loan for which each such offer is
being made; provided that the aggregate principal amount of all Bid Rate Loans for
which a Lender submits Bid Rate Quotes (x) may be greater or less than the
Commitment of such Lender but (y) shall not exceed the principal amount of the Bid
Rate Borrowing for a particular Interest Period for which offers were requested;




     (C) in the case of an Absolute Rate Auction, the rate of interest per annum
(rounded upwards, if necessary, to the nearest 1/1,000th of 1%) offered
for each such Absolute Rate Loan (the “Absolute Rate”);




     (D) in the case of a LIBOR Auction, the margin above or below applicable LIBOR
(the “LIBOR Margin”) offered for each such LIBOR Margin Loan, expressed as a
percentage (rounded upwards, if necessary, to the nearest 1/1,000th of
1%) to be added to (or subtracted from) the applicable LIBOR;



Page 38









 






     (E) the identity of the quoting Lender; and




     (F) any Bid Rate Quote shall be in a minimum amount of $2,000,000 and integral
multiples of $500,000 in excess thereof.




No Bid Rate Quote shall contain qualifying, conditional or similar language or
propose terms other than or in addition to those set forth in the applicable Bid Rate
Quote Request and, in particular, no Bid Rate Quote may be conditioned upon acceptance
by the Borrower of all (or some specified minimum) of the principal amount of the Bid
Rate Loan for which such Bid Rate Quote is being made.



     (d) Notification by Administrative Agent. The Administrative Agent shall, as promptly
as practicable after the Bid Rate Quotes are submitted (but in any event not later than 8:30 a.m.
(x) on the proposed date of borrowing, in the case of an Absolute Rate Margin and (y) on the date
three Business Days prior to the proposed date of borrowing, in the case of a LIBOR Auction),
notify the Borrower of the terms (i) of any Bid Rate Quote submitted by a Lender that is in
accordance with Section 2.4(c) and (ii) of any Bid Rate Quote that amends, modifies or is
otherwise inconsistent with a previous Bid Rate Quote submitted by such Lender with respect to the
same Bid Rate Quote Request. Any such subsequent Bid Rate Quote shall be disregarded by the
Administrative Agent unless such subsequent Bid Rate Quote is submitted solely to correct a
manifest error in such former Bid Rate Quote. The Administrative Agent’s notice to the Borrower
shall specify (A) the aggregate principal amount of the Bid Rate Borrowing for which offers have
been received and (B) the principal amounts and Absolute Rates or LIBOR Margins, as applicable, so
offered by each Lender.



     (e) Acceptance by Borrower.




     (i) Not later than 9:30 a.m. (x) on the proposed date of borrowing, in the case of an
Absolute Rate Margin and (y) on the date three Business Days prior to the proposed date of
borrowing, in the case of LIBOR Auction, the Borrower shall notify the Administrative Agent
of its acceptance or nonacceptance of the offers so notified to it pursuant to Section
2.4(d) which notice shall be in the form of Exhibit K-3. In the case of
acceptance, such notice shall specify the aggregate principal amount of offers for each
Interest Period that are accepted. The failure of the Borrower to give such notice by such
time shall constitute nonacceptance of the relevant Bid Rate Quote. The Borrower may accept
any Bid Rate Quote in whole or in part; provided, that:




     (A) the aggregate principal amount of each Bid Rate Borrowing may not exceed
the applicable amount set forth in the related Bid Rate Quote Request;




     (B) the aggregate principal amount of each Bid Rate Borrowing shall comply with
the provisions of Section 2.4(b)(ii) but shall not cause the limits
specified in Section 2.13 to be violated;




     (C) acceptance of offers may be made only in ascending order of Absolute Rates
or LIBOR Margins, as applicable, in each case beginning with the lowest rate so
offered;



Page 39









 






     (D) any acceptance in part by the Borrower shall be in a minimum amount of
$2,000,000 and integral multiples of $500,000 in excess thereof; and




     (E) the Borrower may not accept any offer that fails to comply with Section
2.4(c) or otherwise fails to comply with the requirements of this Agreement.




     (ii) If offers are made by two or more Lenders with the same Absolute Rates or LIBOR
Margins, as applicable, for a greater aggregate principal amount than the amount in respect
of which offers are accepted for the related Interest Period, the principal amount of Bid
Rate Loans in respect of which such offers are accepted shall be allocated by the
Administrative Agent among such Lenders in proportion to the aggregate principal amount of
such offers without regard to the provisions of subsection (e)(i)(D) above. Determinations
by the Administrative Agent of the amounts of Bid Rate Loans shall be conclusive in the
absence of manifest error.



     (f) Obligation to Make Bid Rate Loans. The Administrative Agent shall promptly (and
in any event not later than (x) 10:00 a.m. on the proposed date of borrowing of Absolute Rate Loans
and (y) on the date three Business Days prior to the proposed date of borrowing of LIBOR Margin
Loans) notify each Lender that submitted a Bid Rate Quote as to whose Bid Rate Quote has been
accepted and the amount and rate thereof. A Lender who is notified that it has been selected to
make a Bid Rate Loan may designate its Designated Lender (if any) to fund such Bid Rate Loan on its
behalf, as described in Section 13.6(d). Any Designated Lender which funds a Bid Rate Loan
shall on and after the time of such funding become the obligee under such Bid Rate Loan and be
entitled to receive payment thereof when due. No Lender shall be relieved of its obligation to
fund a Bid Rate Loan, and no Designated Lender shall assume such obligation, prior to the time the
applicable Bid Rate Loan is funded. Any Lender whose offer to make any Bid Rate Loan has been
accepted shall, not later than 11:00 a.m. on the date specified for the making of such Loan, make
the amount of such Loan available to the Administrative Agent at its Principal Office in
immediately available funds, for the account of the Borrower. The Administrative Agent shall,
subject to the terms and conditions of this Agreement, make the amount so received available to the
Borrower not later than 12:00 noon on such date by depositing the same, in immediately available
funds, in an account of the Borrower designated by the Borrower.



     (g) No Effect on Commitment. Except for the purpose and to the extent expressly
stated in Section 2.14, the amount of any Bid Rate Loan made by any Lender shall not
constitute a utilization of such Lender’s Commitment.



Section 2.5 Rates and Payment of Interest on Loans.




     (a) Rates. The Borrower promises to pay to the Administrative Agent for the account
of each Lender interest on the unpaid principal amount of each Loan made by such Lender for the
period from and including the date of the making of such Loan to but excluding the date such Loan
shall be paid in full, at the following per annum rates:



Page 40









 






     (i) during such periods as such Loan is a Base Rate Loan, at the Base Rate (as in
effect from time to time);




     (ii) during such periods as such Loan is a LIBOR Loan, at LIBOR for such Loan for the
Interest Period therefor, plus the Applicable Margin for LIBOR Loans;




     (iii) during such periods as such Loan is a Swingline Loan, at the Base Rate (as in
effect from time to time) or such other rate as Borrower and Swingline Lender may agree from
time to time in writing for such Swingline Loan; and




     (iv) during such periods as such Loan is a Bid Rate Loan, (A) at the Absolute Rate (as
in effect from time to time), in the case of each such Bid Rate Loan which is an Absolute
Rate Loan, and (B) at LIBOR for such Bid Rate Loan for the Interest Period therefor,
plus the applicable LIBOR Margin, in the case of each such Bid Rate Loan which is a
LIBOR Margin Loan.


Notwithstanding the foregoing, during the continuance of an Event of Default, the Borrower shall
pay to the Administrative Agent for the account of each Lender interest at the Post-Default Rate on
the outstanding principal amount of any Loan made by such Lender, on all Reimbursement Obligations
and on any other amount payable by the Borrower hereunder or under the Notes held by such Lender to
or for the account of such Lender (including without limitation, accrued but unpaid interest to the
extent permitted under Applicable Law).




     (b) Payment of Interest. All accrued and unpaid interest on the outstanding principal
amount of each Loan shall be payable (i) monthly in arrears on the first day of each month,
commencing with the first full calendar month occurring after the Effective Date and (ii) on any
date on which the principal balance of such Loan is due and payable in full (whether at maturity,
due to acceleration or otherwise). Interest payable at the Post-Default Rate shall be payable from
time to time on demand. All determinations by the Administrative Agent of an interest rate
hereunder shall be conclusive and binding on the Lenders and the Borrower for all purposes, absent
manifest error.



Section 2.6 Number of Interest Periods.




     There may be no more than eight (8) different Interest Periods outstanding at the same time,
whether in the context of a LIBOR Loan which is a Revolving Loan or a LIBOR Loan which is a Bid
Rate Loan.



Section 2.7 Repayment of Loans.




     The Borrower shall repay the entire outstanding principal amount of, and all accrued but
unpaid interest on, the Revolving Loans on the Termination Date and the Bid Rate Loans on their
respective applicable due dates.



Section 2.8 Prepayments.




     (a) Optional. Subject to Sections 3.5 and 5.4, the Borrower
may prepay any Loan at any time without premium or penalty. The Borrower shall give the
Administrative Agent at least



Page 41









 







three (3) Business Days prior written notice of the prepayment of any LIBOR Loan and at least
one (1) Business Day prior written notice of the prepayment of any Base Rate Loan, and
Administrative Agent shall promptly notify Lenders thereafter.



     (b) Mandatory.




     (i) Commitment Overadvance. If at any time the aggregate principal amount of
all outstanding Loans, together with the aggregate amount of all Letter of Credit
Liabilities, exceeds the Total Commitment Amount, the Borrower shall immediately upon demand
pay to the Administrative Agent for the ratable benefit of the Lenders, the amount of such
excess.




     (ii) Pool Overadvance. If at any time the aggregate principal amount of all
outstanding Loans, together with the aggregate amount of all Letter of Credit Liabilities,
exceeds the Maximum Availability, the Borrower shall within five (5) days of the Borrower
obtaining knowledge of the occurrence of any such excess, deliver to the Administrative
Agent for prompt distribution to each Lender a written plan acceptable to all of the Lenders
to eliminate such excess. If such excess is not eliminated within fifteen (15) days of the
Borrower obtaining knowledge of the occurrence thereof, then the entire outstanding
principal balance of all Loans, together with all accrued interest thereon, and an amount
equal to all Letter of Credit Liabilities for deposit into the Letter of Credit Collateral
Account, shall be immediately due and payable in full.




     (iii) Bid Loan Overadvance. If at any time the aggregate principal amount of
all outstanding Bid Rate Borrowings exceeds fifty percent (50%) of the then Commitments
under the Loan, the Borrower shall immediately upon demand pay to the Administrative Agent
for the account of the applicable Lenders, the amount of such excess.


All payments under this subsection (b) shall be applied to pay all amounts of excess principal
outstanding on the applicable Loans and any applicable Reimbursement Obligations in accordance with
Section 3.2, and the remainder, if any, shall be deposited into the Letter of Credit
Collateral Account for application to any Reimbursement Obligations as and when due.




Section 2.9 Continuation.




     So long as no Default or Event of Default exists, the Borrower may on any Business Day, with
respect to any LIBOR Loan, elect to maintain such LIBOR Loan or any portion thereof as a LIBOR Loan
by selecting a new Interest Period for such LIBOR Loan. Each new Interest Period selected under
this Section shall commence on the last day of the immediately preceding Interest Period. Each
selection of a new Interest Period shall be made by the Borrower giving to the Administrative Agent
a Notice of Continuation not later than 9:00 a.m. on the third Business Day prior to the date of
any such Continuation. Such notice by the Borrower of a Continuation shall be by telephone or
telecopy, confirmed immediately in writing if by telephone, in the form of a Notice of
Continuation, specifying (a) the proposed date of such Continuation, (b) the LIBOR Loan and portion
thereof subject to such Continuation and (c) the duration of the selected Interest Period, all of
which shall be specified in such manner as is necessary to comply with all



Page 42









 







limitations on Loans outstanding hereunder. Each Notice of Continuation shall be irrevocable
by and binding on the Borrower once given. Promptly after receipt of a Notice of Continuation, the
Administrative Agent shall notify each Lender by telex or telecopy, or other similar form of
transmission of the proposed Continuation. If the Borrower shall fail to select in a timely manner
a new Interest Period for any LIBOR Loan in accordance with this Section, such Loan will
automatically, on the last day of the current Interest Period therefor, Convert into a Base Rate
Loan notwithstanding failure of the Borrower to comply with Section 2.10.



Section 2.10 Conversion.




     So long as no Default or Event of Default exists, the Borrower may on any Business Day, upon
the Borrower’s giving of a Notice of Conversion to the Administrative Agent, Convert all or a
portion of a Loan of one Type into a Loan of another Type. Any Conversion of a LIBOR Loan into a
Base Rate Loan shall be made on, and only on, the last day of an Interest Period for such LIBOR
Loan and, upon Conversion of a Base Rate Loan into a LIBOR Loan, the Borrower shall pay accrued
interest to the date of Conversion on the principal amount so Converted. Each such Notice of
Conversion shall be given not later than 9:00 a.m. on the Business Day prior to the date of any
proposed Conversion into Base Rate Loans and on the third Business Day prior to the date of any
proposed Conversion into LIBOR Loans. Promptly after receipt of a Notice of Conversion, the
Administrative Agent shall notify each Lender by telex or telecopy, or other similar form of
transmission of the proposed Conversion. Subject to the restrictions specified above, each Notice
of Conversion shall be by telephone (confirmed immediately in writing) or telecopy in the form of a
Notice of Conversion specifying (a) the requested date of such Conversion, (b) the Type of Loan to
be Converted, (c) the portion of such Type of Loan to be Converted, (d) the Type of Loan such Loan
is to be Converted into and (e) if such Conversion is into a LIBOR Loan, the requested duration of
the Interest Period of such Loan. Each Notice of Conversion shall be irrevocable by and binding on
the Borrower once given.



Section 2.11 Notes.




     The Revolving Loans made by each Lender shall, in addition to this Agreement, also be
evidenced by a promissory note of the Borrower substantially in the form of Exhibit G-1
(each a “Revolving Note”), payable to the order of such Lender in a principal amount equal to the
amount of its Commitment as originally in effect and otherwise duly completed. The Bid Rate Loans
made by any Lender to the Borrower shall, in addition to this Agreement, also be evidenced by a Bid
Rate Note payable to the order of such Lender substantially in the form of Exhibit G-3.
The Swingline Loans made by the Swingline Lender to the Borrower shall, in addition to this
Agreement, also be evidenced by a Swingline Note payable to the order of the Swingline Lender
substantially in the form of Exhibit G-2.



Section 2.12 Expiration or Termination Date of Letters of Credit Past Termination Date.




     If on the date the Commitments are terminated (whether voluntarily, by reason of the
occurrence of an Event of Default or otherwise), there are any Letters of Credit outstanding
hereunder, the Borrower shall, on such date, pay to the Administrative Agent an amount of money
equal to the Stated Amount of such Letter(s) of Credit for deposit into the Letter of Credit
Collateral Account. If a drawing pursuant to any such Letter of Credit occurs on or prior to the



Page 43









 







expiration date of such Letter of Credit, the Borrower authorizes the Administrative Agent to
use the monies deposited in the Letter of Credit Collateral Account to make payment to the
beneficiary with respect to such drawing or the payee with respect to such presentment. If no
drawing occurs on or prior to the expiration date of such Letter of Credit, the Administrative
Agent shall pay to the Borrower (or to whomever else may be legally entitled thereto) the monies
deposited in the Letter of Credit Collateral Account (together with any accrued interest thereon)
with respect to such outstanding Letter of Credit on or before the date thirty (30) days after the
expiration date of such Letter of Credit.



Section 2.13 Amount Limitations.




     Notwithstanding any other term of this Agreement or any other Loan Document, (a) no Lender
shall be required to make any Loan, and the Administrative Agent shall not be required to issue any
Letter of Credit or make any Swingline Loan if, immediately after the making of such Loan
(including Swingline Loans) or issuance of such Letter of Credit the aggregate principal amount of
all outstanding Loans (including Swingline Loans), together with the aggregate amount of all Letter
of Credit Liabilities, would exceed either (i) the Total Commitment Amount or (ii) the Maximum
Availability and (b) the aggregate principal amount of all outstanding Bid Rate Loans shall not
exceed fifty percent (50%) of the then Commitments under the Loan.



Section 2.14 Optional Increase to the Commitment.




     (a) Provided that no Event of Default or Default then exists, Borrower may, in accordance with
the provisions of this Section 2.14 and on no more than three (3) occasions prior to
January 17, 2008, request in writing that the then Total Commitment Amount be increased up to
$400,000,000, provided, however, that no such request shall be for an increase
amount less than $20,000,000. Any request under this Section shall be submitted by Borrower to the
Lenders through Administrative Agent not less than thirty (30) days prior to the proposed increase,
specify the proposed effective date and amount of such increase and be accompanied by (i) an
Officer’s Certificate of Borrower stating that no Event of Default or Default exists as of the date
of the request or will result from the requested increase, (ii) a written consent to the increase
in the amount of the Commitments executed by each Guarantor and (iii) the satisfaction of all
conditions precedent specified in Article VI. Borrower may also specify any fees offered
to those Lenders which agree to an increase in the amount of their respective Pro Rata Shares of
the Total Commitment Amount (which fees may be variable based upon the amount which any such Lender
is willing to assume as an increase to the amount of its Pro Rata Share of the increased
Commitments). The consent of the Lenders, as such, shall not be required for an increase in the
amount of the Total Commitment Amount pursuant to this Section 2.14; provided that the
increase of any specific Lender’s Commitment pursuant to this Section 2.14 (or any other
section hereof) shall be subject to such Lender’s written consent.



     (b) Each Lender may approve or reject a request for an increase in the amount of its Pro Rata
Share of the Total Commitment Amount in its sole and absolute discretion and, absent an affirmative
written response within fifteen (15) days after receipt of such request, shall be deemed to have
rejected the request. The rejection of such a request by any number of Lenders shall not affect
Borrower’s right to increase the Total Commitment Amount pursuant to this



Page 44









 







Section as a result of, and with respect to the Pro Rata Shares of, those Lenders that approve
such increase and such additional Lenders that join this Agreement in accordance with subsection
(e) of this Section 2.14. Notwithstanding any other provision hereof, no Lender which
rejects a request for an increase in the Total Commitment Amount shall be (i) subject to removal as
a Lender, (ii) obligated to lend any amount greater than its original Pro Rata Share of the
original Total Commitment Amount, or (iii) deemed to be in default in any respect hereunder.



     (c) In responding to a request under this Section, each Lender which is willing to increase
the amount of its Pro Rata Share of the increased Total Commitment Amount shall specify the amount
of the proposed increase which it is willing to assume. Each consenting Lender shall be entitled
to participate ratably (based on its Pro Rata Share of the Commitment before such increase) in any
resulting increase in the Commitment, subject to the right of Administrative Agent to adjust
allocations of the increased Commitment so as to result in the amounts of the Pro Rata Shares of
the Lenders being in integral multiples of $1,000,000.



     (d) If the aggregate principal amount offered to be assumed by the consenting Lenders is less
than the amount requested, Borrower in its sole discretion may (i) reject the proposed increase in
its entirety, (ii) accept the offered amounts or (iii) designate new lenders who qualify as
Eligible Assignees under Section 13.6 and which are reasonably acceptable to Administrative
Agent as additional Lenders hereunder in accordance with clause (e) of this Section (each, a “New
Lender”), which New Lenders may assume the amount of the increase in the Commitment that has not
been assumed by the consenting Lenders.



     (e) Each New Lender designated by Borrower and reasonably acceptable to Administrative Agent
shall become an additional party hereto as a New Lender concurrently with the effectiveness of the
proposed increase in the Commitment upon its execution of an instrument of joinder to this
Agreement which is in form and substance acceptable to Administrative Agent and which, in any
event, contains the representations, warranties, indemnities and other protections afforded to
Administrative Agent and the other Lenders which would be granted or made by an eligible assignee
under Section 13.6 by means of the execution of an Assignment and Acceptance Agreement.



     (f) Subject to the foregoing, any increase to the Commitment requested under this Section
shall be effective as of the date proposed by Borrower and shall be in the principal amount equal
to (i) the amount which consenting Lenders are willing to assume as increases to the amount of
their respective Pro Rata Shares plus (ii) the amount offered by any New Lenders. Upon the
effectiveness of any such increase, Borrower shall execute replacement Notes to each affected
Lender and new Notes to each New Lender, and the Pro Rata Share of each Lender will be adjusted,
higher or lower as needed, to give effect to the increase in the Commitment and set forth in a new
Schedule 1.1(A) issued by Administrative Agent. On or prior to such effective date and as
applicable, certain of the Lenders shall purchase, and certain of the Lenders shall sell, to one
another, the percentage interest in the Commitment as necessary in order to reallocate the
principal balance under the Notes among the Lenders to correspond to the Pro Rata Shares of the
Lenders set forth in the new Schedule 1.1(A) referred to above, and Borrower shall be
obligated to pay any breakage costs associated therewith.



Page 45









 





Section 2.15 Extension of the Termination Date.




     The Borrower in its sole discretion may request that the Administrative Agent and the Lenders
extend the current Termination Date by one year by executing and delivering to the Administrative
Agent at least ninety (90) days prior to the current Termination Date, a written request for such
extension. The Administrative Agent shall forward to each Lender a copy of any such request
delivered to the Administrative Agent promptly upon receipt thereof. Subject to satisfaction of
the following conditions, the Termination Date shall be extended for one year: (a) immediately
prior to such extension and immediately after giving effect thereto, no Default or Event of Default
shall have occurred and be continuing, (b) the Borrower shall have paid the Fees payable under
Section 3.6(b) upon exercise of the extension option set forth in this Section
2.15, and (c) all representations and warranties made or deemed made by any Loan Party in any
Loan Document to which any such Loan Party is a party are true and correct on the effective date of
such extension (except for representations or warranties which expressly relate solely to an
earlier date).



ARTICLE III PAYMENTS, FEES AND OTHER GENERAL PROVISIONS




Section 3.1 Payments.




     Except to the extent otherwise provided herein, all payments of principal, interest and other
amounts to be made by the Borrower under this Agreement or any other Loan Document shall be made in
Dollars, in immediately available funds, without deduction, set-off or counterclaim, to the
Administrative Agent, not later than 11:00 a.m. on the date on which such payment shall become due
(each such payment made after such time on such due date to be deemed to have been made on the next
succeeding Business Day). The Borrower shall, at the time of making each payment under this
Agreement or any Note, specify to the Administrative Agent the amounts payable by the Borrower
hereunder to which such payment is to be applied. Each payment received by the Administrative
Agent for the account of a Lender under this Agreement or any Note of such Lender shall be paid to
such Lender, by wire transfer of immediately available funds in accordance with the wiring
instructions provided by such Lender to the Administrative Agent from time to time, for the account
of such Lender at the applicable Lending Office of such Lender. If the Administrative Agent fails
to pay such amount to a Lender within one Business Day of receipt thereof by the Administrative
Agent, the Administrative Agent shall pay interest on such amount until paid at a rate per annum
equal to the Federal Funds Rate from time to time in effect. If the due date of any payment under
this Agreement or any other Loan Document would otherwise fall on a day which is not a Business Day
such date shall be extended to the next succeeding Business Day and interest shall be payable for
the period of such extension.



Section 3.2 Pro Rata Treatment.




     Except to the extent otherwise provided herein: (a) each borrowing from Lenders under
Section 2.1 shall be made from the Lenders, each payment of the fees under Sections
3.6(b), 3.6(d) and the first sentence of 3.6(e) shall be made for the
ratable benefit of the Lenders, and each termination or reduction of the amount of the Commitments
pursuant to this Agreement shall be applied to the respective Commitments of the Lenders, pro rata
according to the amounts



Page 46









 







of their respective Commitments; (b) each payment or prepayment of principal of Revolving
Loans by the Borrower shall be made for the account of each Lender pro rata in accordance with the
respective unpaid principal amounts of the Revolving Loans held by them, provided that if
immediately prior to giving effect to any such payment in respect of any Revolving Loans the
outstanding principal amount of the Revolving Loans shall not be held by the Lenders pro rata in
accordance with their respective Commitments in effect at the time such Loans were made, then such
payment shall be applied to the Revolving Loans in such manner as shall result, as nearly as is
practicable, in the outstanding principal amount of the Revolving Loans being held by the Lenders
pro rata in accordance with their respective Commitments; (c) each payment of interest on Revolving
Loans by the Borrower shall be made for the account of the Lenders pro rata in accordance with the
amounts of interest on such Loans then due and payable to the respective Lenders; (d) the
Conversion and Continuation of Revolving Loans of a particular Type (other than Conversions
provided for by Section 5.5) shall be made pro rata among the Lenders according to the
amounts of their respective Commitments (in the case of making of Loans) or their respective Loans
(in the case of Conversions or Continuations of Loans) and the then current Interest Period for
each Lender’s portion of each Revolving Loan of such Type shall be coterminous; (e) each payment or
prepayment of principal and/or interest of Bid Rate Loans by the Borrower pursuant to Section
2.8(b) shall be made for account of each Lender then owed Bid Rate Loans pro rata in accordance
with the respective unpaid principal amounts of the Bid Rate Loans then owing to each such Lender;
(f) the Lenders’ participation in, and payment obligations in respect of, Swingline Loans under
Section 2.3, shall be in accordance with their respective Pro Rata Shares; and (g) the
Lenders’ participation in, and payment obligations in respect of, Letters of Credit under
Section 2.2 and with respect to the funds held in the Letter of Credit Collateral Account,
shall be pro rata in accordance with their respective Commitments. All payments of principal,
interest, fees and other amounts in respect of the Swingline Loans shall be for the account of the
Swingline Lender only (except to the extent any Lender shall have acquired a participating interest
in any such Swingline Loan pursuant to Section 2.3).



Section 3.3 Sharing of Payments, Setoff, Etc.




     The Borrower agrees that, in addition to any rights now or hereafter granted under Applicable
Law and not by way of limitation of any such rights, the Administrative Agent, each Lender and each
Participant is hereby authorized by the Borrower, at any time or from time to time so long as but
only so long as an Event of Default exists to set off and to appropriate and to apply any and all
deposits (general or special, including, but not limited to, indebtedness evidenced by certificates
of deposit, whether matured or unmatured) and any other indebtedness at any time held or owing by
the Administrative Agent, such Lender or any affiliate of the Administrative Agent or such Lender,
to or for the credit or the account of the Borrower against and on account of any of the
Obligations, irrespective of whether or not any or all of the Loans and all other Obligations have
been declared to be, or have otherwise become, due and payable as permitted by Section
11.2, and although such obligations shall be contingent or unmatured. The foregoing rights may
be exercised without prior notice to the Borrower or to any other Person, any such notice being
hereby expressly waived (provided that Administrative Agent shall give after-the-fact notice to
Borrower), but in the case of a Lender or a Participant shall be subject to receipt of the prior
written consent of the Administrative Agent exercised in its sole discretion. If a Lender shall
obtain payment of any principal of, or interest on, any Loan made by it to Borrower under this
Agreement or shall obtain payment on any other Obligation owing



Page 47









 







by the Borrower or any other Loan Party through the exercise of any right of set-off, banker’s
lien or counterclaim or similar right or otherwise or through voluntary prepayments directly to a
Lender or other payments made by the Borrower or any other Loan Party to a Lender not in
accordance with the terms of this Agreement and such payment should be distributed to the Lenders
pro rata in accordance with Section 3.2 or Section 11.4, as applicable, such Lender
shall promptly purchase from the other Lenders participations in (or, if and to the extent
specified by such Lender, direct interests in) the Loans made by the other Lenders or other
Obligations owed to such other Lenders in such amounts, pay such amounts to the other Lenders and
make such other adjustments from time to time as shall be equitable, to the end that all the
Lenders shall share the benefit of such payment (net of any reasonable expenses which may actually
be incurred by such Lender in obtaining or preserving such benefit) pro rata in accordance with the
requirements of Section 3.2 or Section 11.4, as applicable. To such end, all the
Lenders shall make appropriate adjustments among themselves (by the resale of participations sold
or otherwise) if such payment is rescinded or must otherwise be restored. The Borrower agrees that
any Lender so purchasing a participation (or direct interest) in the Loans or other Obligations
owed to such other Lenders may exercise all rights of set-off, banker’s lien, counterclaim or
similar rights with the respect to such participation as fully as if such Lender were a direct
holder of Loans in the amount of such participation. Nothing contained herein shall require any
Lender to exercise any such right or shall affect the right of any Lender to exercise and retain
the benefits of exercising, any such right with respect to any other indebtedness or obligation of
the Borrower.



Section 3.4 Several Obligations.




     No Lender shall be responsible for the failure of any other Lender to make a Loan or to
perform any other obligation to be made or performed by such other Lender hereunder, and the
failure of any Lender to make a Loan or to perform any other obligation to be made or performed by
it hereunder shall not relieve the obligation of any other Lender to make any Loan or to perform
any other obligation to be made or performed by such other Lender.



Section 3.5 Minimum Amounts.




     (a) Borrowings. Each borrowing of Base Rate Loans shall be in an aggregate minimum
amount of $1,000,000 and integral multiples of $100,000 in excess thereof. Each borrowing of and
Continuation of, and each Conversion of Base Rate Loans into, LIBOR Loans shall be in an aggregate
minimum amount of $1,000,000 and integral multiples of $100,000 in excess of that amount.



     (b) Prepayments. Each voluntary prepayment of Revolving Loans shall be in an
aggregate minimum amount of $1,000,000 and integral multiples of $100,000 in excess thereof.



Section 3.6 Fees.




     (a) Loan Fee. The Borrower agrees to pay to the Administrative Agent on or prior to
the Effective Date a loan fee as set forth in the Fee Letter, which loan fee Administrative Agent
shall share with the other Lenders in accordance with Administrative Agent’s separate agreements
with such Lenders.



Page 48









 





     (b) Extension Fee. If, pursuant to Section 2.15, the Borrower exercises its
right to extend the Termination Date, the Borrower agrees to pay to the Administrative Agent for
the account of each Lender an extension fee equal to one hundred seventy-five thousandths of one
percent (0.175%) of the amount of each Lender’s Commitment. Such fees shall be paid to the
Administrative Agent upon, and as a condition to, Borrower’s exercise of such extension.



     (c) Bid Rate Loan Fees. The Borrower agrees to pay to the Administrative Agent such
fees for services rendered by the Administrative Agent in connection with the Bid Rate Loans as are
set forth in the Fee Letter or as shall be separately agreed upon between the Borrower and the
Administrative Agent.



     (d) Facility Fees. During the period from the Effective Date to but excluding the
Termination Date, the Borrower agrees to pay to the Administrative Agent for the ratable benefit of
the Lenders a facility fee per annum equal to the percentage of the Total Commitment Amount set
forth in the table below corresponding to the applicable Level at which the “Applicable Margin” is
determined in accordance with the definition thereof, as of the applicable date of determination:



	 	 	 
	Level	 	Facility Fee
	1
	 	0.125%
	2
	 	0.15%
	3
	 	0.15%
	4
	 	0.175%
	5
	 	0.225%





Such fees shall be computed and payable quarterly in arrears on the first day of each January,
April, July and October during the term of this Agreement and on the Termination Date.




     (e) Letter of Credit Fees. The Borrower agrees to pay to the Administrative Agent for
the ratable benefit of the Lenders a letter of credit fee in respect of each outstanding Letter of
Credit at a rate per annum equal to the greater of (i) the Applicable
Margin for LIBOR Loans from time to time in effect multiplied by the Stated Amount of such Letter
of Credit or (ii) $1,000. Such letter of credit fee shall be payable quarterly in arrears (for the
respective number of days outstanding) on the first day of each January, April, July and October
during the term of such Letter of Credit, provided that the full amount of such fee shall be
immediately due and payable upon any early termination of a Letter of Credit. The Borrower shall
pay directly to the Administrative Agent a fronting fee for its account with respect to each Letter
of Credit issued, together with from time to time on demand all commissions, charges, costs and
expenses in the amounts customarily charged by the Administrative Agent from time to time in like
circumstances with respect to the issuance of each Letter of Credit, drawings, amendments and other
transactions relating thereto.



     (f) Administrative and Other Fees. The Borrower agrees to pay the administrative,
arrangement and other fees of the Administrative Agent as set forth in the Fee Letter or as may
otherwise be agreed to in writing between the Borrower and the Administrative Agent from time to
time.



Page 49









 





Section 3.7 Computations.




     Unless otherwise expressly set forth herein, any accrued interest on any Loan, any Fees or
other Obligations due hereunder shall be computed on the basis of a year of 360 days and the actual
number of days elapsed.



Section 3.8 Usury.




     In no event shall the amount of interest due or payable on the Loans or other Obligations
exceed the maximum rate of interest allowed by Applicable Law and, if any such payment is paid by
the Borrower or received by any Lender, then such excess sum shall be credited as a payment of
principal, unless the Borrower shall notify the respective Lender in writing that the Borrower
elects to have such excess sum returned to it forthwith. It is the express intent of the parties
hereto that the Borrower not pay and the Lenders not receive, directly or indirectly, in any manner
whatsoever, interest in excess of that which may be lawfully paid by the Borrower under Applicable
Law.



Section 3.9 Agreement Regarding Interest and Charges.




     The parties hereto hereby agree and stipulate that the only charge imposed upon the Borrower
for the use of money in connection with this Agreement is and shall be the interest specifically
described in Section 2.5(a)(i) through (iv). Notwithstanding the foregoing, the
parties hereto further agree and stipulate that all agency fees, syndication fees, facility fees,
letter of credit fees, default charges, funding or “breakage” charges, increased cost charges,
attorneys’ fees and reimbursement for costs and expenses paid by the Administrative Agent or any
Lender to third parties or for damages incurred by the Administrative Agent or any Lender, are
charges made to compensate the Administrative Agent or any such Lender for underwriting or
administrative services and costs or losses performed or incurred, and to be performed or incurred,
by the Administrative Agent and the Lenders in connection with this Agreement and shall under no
circumstances be deemed to be charges for the use of money. All charges other than charges for the
use of money shall be fully earned and nonrefundable when due.



Section 3.10 Statements of Account.




     The Administrative Agent shall, within fifteen (15) days after the end of each calendar month,
account to the Borrower monthly with a written statement of Loans, accrued interest and Fees,
charges and payments made pursuant to this Agreement and the other Loan Documents, and such account
rendered by the Administrative Agent shall be deemed conclusive upon Borrower absent manifest
error. The Administrative Agent will account to the Borrower on changes in Letters of Credit in
accordance with Section 2.2(k). The failure of the Administrative Agent to deliver such a
statement of accounts shall not relieve or discharge the Borrower from any of its obligations
hereunder.



Section 3.11 Defaulting Lenders.




     If for any reason any Lender (a “Defaulting Lender”) shall fail or refuse to perform any of
its obligations under this Agreement or any other Loan Document to which it is a party within the
time period specified for performance of such obligation or, if no time period is specified, if



Page 50









 







such failure or refusal continues for a period of two Business Days after notice from the
Administrative Agent, then, in addition to the rights and remedies that may be available to the
Administrative Agent or the Borrower under this Agreement or Applicable Law, such Defaulting
Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan
Documents, including without limitation, any right to vote in respect of, to consent to or to
direct any action or inaction of the Administrative Agent or to be taken into account in the
calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or
refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the
Administrative Agent of any amount required to be paid to the Administrative Agent hereunder
(without giving effect to any notice or cure periods), in addition to other rights and remedies
which the Administrative Agent or the Borrower may have under the immediately preceding provisions
or otherwise, the Administrative Agent shall be entitled (i) to collect interest from such
Defaulting Lender on such delinquent payment for the period from the date on which the payment was
due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or
setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts
otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and
(iii) to bring an action or suit against such Defaulting Lender in a court of competent
jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the
Administrative Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting
Lender and shall be held uninvested by the Administrative Agent and paid to such Defaulting Lender
upon the Defaulting Lender’s curing of its default.



Section 3.12 Taxes.




     (a) Taxes Generally. All payments by the Borrower of principal of, and interest on,
the Loans and all other Obligations shall be made free and clear of and without deduction for any
present or future excise, stamp or other taxes, fees, duties, levies, imposts, charges, deductions,
withholdings or other charges of any nature whatsoever imposed by any taxing authority, but
excluding (i) franchise taxes, (ii) any taxes (other than withholding taxes) that would not be
imposed but for a connection between the Administrative Agent or a Lender (which for purposes of
the exclusions in clauses (i)-(iv) of this Section 3.12(a), includes any Participant) and
the jurisdiction imposing such taxes (other than a connection arising solely by virtue of the
activities of the Administrative Agent or such Lender pursuant to or in respect of this Agreement
or any other Loan Document), (iii) any taxes imposed on or measured by any Lender’s assets, net
income, receipts or branch profits and (iv) any taxes arising after the Agreement Date solely as a
result of or attributable to a Lender changing its designated Lending Office after the date such
Lender becomes a party hereto or transferring any interest in any Loan to the extent such Lender
would not have been liable for such taxes (such non-excluded items being collectively called
“Taxes”). If any withholding or deduction from any payment to be made by the Borrower hereunder is
required in respect of any Taxes pursuant to any Applicable Law, then the Borrower will:




     (i) pay directly to the relevant Governmental Authority the full amount required to be
so withheld or deducted;



Page 51









 






     (ii) promptly forward to the Administrative Agent an official receipt or other
documentation satisfactory to the Administrative Agent evidencing such payment to such
Governmental Authority; and




     (iii) pay to the Administrative Agent for its account or the account of the applicable
Lender, as the case may be, such additional amount or amounts as is necessary to ensure that
the net amount actually received by the Administrative Agent or such Lender will equal the
full amount that the Administrative Agent or such Lender would have received had no such
withholding or deduction been required.



     (b) Tax Indemnification. If the Borrower fails to pay any Taxes when due to the
appropriate Governmental Authority or fails to remit to the Administrative Agent, for its account
or the account of the respective Lender, as the case may be, the required receipts or other
required documentary evidence, the Borrower shall indemnify the Administrative Agent and the
Lenders for any incremental Taxes, interest or penalties that may become payable by the
Administrative Agent or any Lender as a result of any such failure. For purposes of this Section,
a distribution hereunder by the Administrative Agent or any Lender to or for the account of any
Lender shall be deemed a payment by the Borrower.



     (c) Tax Forms. Prior to the date that any Lender or Participant organized under the
laws of a jurisdiction outside the United States of America becomes a party hereto, such Person
shall deliver to the Borrower and the Administrative Agent such certificates, documents or other
evidence, as required by the Internal Revenue Code or Treasury Regulations issued pursuant thereto
(including Internal Revenue Service Forms W-8ECI and W-8BEN, as applicable, or appropriate
successor forms), properly completed, currently effective and duly executed by such Lender or
Participant establishing that payments to it hereunder and under the Notes are (i) not subject to
United States Federal backup withholding tax and (ii) not subject to United States Federal
withholding tax under the Code. Each such Lender or Participant shall (x) deliver further copies
of such forms or other appropriate certifications on or before the date that any such forms expire
or become obsolete or after the occurrence of any event requiring a change in the most recent form
delivered to the Borrower and (y) obtain such extensions of the time for filing, and renew such
forms and certifications thereof as may be reasonably requested by the Borrower or the
Administrative Agent. The Borrower shall not be required to pay any amount pursuant to last
sentence of subsection (a) above to any Lender or Participant that is organized under the laws of a
jurisdiction outside of the United States of America or the Administrative Agent, if it is
organized under the laws of a jurisdiction outside of the United States of America, if such Lender,
Participant or the Administrative Agent, as applicable, fails to comply with the requirements of
this subsection. If any such Lender or Participant fails to deliver the above forms or other
documentation, then the Administrative Agent may withhold from such payment to such Lender such
amounts as are required by the Internal Revenue Code. If any Governmental Authority asserts that
the Administrative Agent did not properly withhold or backup withhold, as the case may be, any tax
or other amount from payments made to or for the account of any Lender, such Lender shall indemnify
the Administrative Agent therefor, including all penalties and interest, any taxes imposed by any
jurisdiction on the amounts payable to the Administrative Agent under this Section, and costs and
expenses (including all fees and disbursements of any law firm or other external counsel and the
allocated cost of internal legal services and all disbursements of internal counsel) of the
Administrative Agent. The obligation of the Lenders



Page 52









 







and Participants under this Section shall survive the termination of the Commitments,
repayment of all Obligations and the resignation or replacement of the Administrative Agent.



ARTICLE IV POOL ASSETS




Section 4.1 Inclusion of Pool Assets.




     (a) Existing Pool Assets. Subject to compliance with the terms and conditions of
Section 6.1(a), as of the Effective Date, the parties hereto acknowledge and agree that the
Properties listed on Schedule 4.1 are the Pool Assets.



     (b) Additional Pool Assets. After the Effective Date, if Borrower intends to
designate an Eligible Pool Asset to be included as a Pool Asset from time to time, it will notify
the Administrative Agent of such intention, which notice will include, with respect to such
Eligible Pool Asset, (i) a Pool Certificate setting forth the information required to be contained
therein and which includes such new Eligible Pool Asset as a Pool Asset, (ii) such other
information as the Administrative Agent or any Lender (through the Administrative Agent) may
reasonably request in connection with the evaluation of such Eligible Pool Asset. Subject to the
terms and conditions of this Agreement, upon the Administrative Agent’s receipt of such certificate
and such other information, such Eligible Pool Asset shall be included as a Pool Asset. Any
Property or other asset that does not satisfy the requirements of an Eligible Pool Asset shall be
included as a Pool Asset only upon the written approval of the Requisite Lenders. If a Property
that is to become a Pool Asset is owned (or is being acquired) by a Subsidiary of the Borrower that
is not yet a party to the Guaranty then, to the extent required pursuant to Section 8.14,
such Property shall not become a Pool Asset unless and until an Accession Agreement executed by
such Subsidiary and all other items required to be delivered under Section 8.14, have all
been delivered to the Administrative Agent.



Section 4.2 Termination of Designation as Pool Asset.




     If Borrower at any time intends to withdraw or otherwise affirmatively causes to be ineligible
any Eligible Pool Asset from inclusion as a Pool Asset, it shall (a) notify the Administrative
Agent of its intention, and (b) deliver to the Administrative Agent a Pool Certificate setting
forth the calculations establishing that Borrower will be in compliance with Section 2.13
with giving effect to such withdrawal (and any concurrent addition of Eligible Pool Assets as Pool
Assets), which calculations shall be in such detail, and otherwise in such form and substance, as
Administrative Agent reasonably requires. Effective automatically upon receipt of such notice and
certificate by Administrative Agent (or upon any later date stated in such notice), such Eligible
Pool Asset shall no longer constitute a Pool Asset. Additionally, any Property or other asset
previously included as a Pool Asset but which is not included in a Pool Certificate subsequently
submitted pursuant to this Agreement shall no longer be included as a Pool Asset (effective as of
the date of receipt by the Administrative Agent of such Pool Certificate and until such time, if
ever, as Borrower re-designates such Property or asset as a Pool Asset in accordance with
Section 4.1(b)) so long as no Default or Event of Default exists or would exist immediately
after such Property or asset is no longer included as a Pool Asset.



Page 53









 





Section 4.3 Ineligibility of a Property as Pool Asset.




     If a Property or other asset at any time ceases to be an Eligible Pool Asset, such Property or
asset shall automatically no longer constitute a Pool Asset, and Borrower shall immediately (a)
notify the Administrative Agent, and (b) deliver to the Administrative Agent a Pool Certificate
setting forth the calculations establishing that Borrower will be in compliance with Section
2.13 with giving effect to the termination of such Property or other asset as a Pool Asset,
which calculations shall be in such detail, and otherwise in such form and substance, as
Administrative Agent reasonably requires.



ARTICLE V YIELD PROTECTION, ETC.




Section 5.1 Additional Costs; Capital Adequacy.




     (a) Additional Costs. The Borrower shall promptly pay to the Administrative Agent for
the account of a Lender from time to time such amounts as such Lender may reasonably determine to
be necessary to compensate such Lender for any costs incurred by such Lender that it reasonably
determines are attributable to its making or maintaining of any LIBOR Loans or its obligation to
make any LIBOR Loans hereunder, any reduction in any amount receivable by such Lender under this
Agreement or any of the other Loan Documents in respect of any of such Loans or such obligation or
the maintenance by such Lender of capital in respect of its Loans or its Commitment (such increases
in costs and reductions in amounts receivable being herein called “Additional Costs”), resulting
from any Regulatory Change that: (i) changes the basis of taxation of any amounts payable to such
Lender under this Agreement or any of the other Loan Documents in respect of any of such Loans or
its Commitment (other than taxes imposed on or measured by the overall net income of such Lender or
of its Lending Office for any of such Loans by the jurisdiction in which such Lender has its
principal office or such Lending Office); or (ii) imposes or modifies any reserve, special deposit
or similar requirements (including without limitation, Regulation D of the Board of Governors of
the Federal Reserve System or other similar reserve requirement applicable to any other category of
liabilities or category of extensions of credit or other assets by reference to which the interest
rate on LIBOR Loans is determined) relating to any extensions of credit or other assets of, or any
deposits with or other liabilities of, or other credit extended by, or any other acquisition of
funds by such Lender (or its parent corporation), or any commitment of such Lender (including,
without limitation, the Commitment of such Lender hereunder); or (iii) has or would have the effect
of reducing the rate of return on capital of such Lender to a level below that which such Lender
could have achieved but for such Regulatory Change (taking into consideration such Lender’s
policies with respect to capital adequacy).



     (b) Lender’s Suspension of LIBOR Loans. Without limiting the effect of the provisions
of the immediately preceding subsection (a), if by reason of any Regulatory Change, any Lender
either (i) incurs Additional Costs based on or measured by the excess above a specified level of
the amount of a category of deposits or other liabilities of such Lender that includes deposits by
reference to which the interest rate on LIBOR Loans is determined as provided in this Agreement or
a category of extensions of credit or other assets of such Lender that includes LIBOR Loans or (ii)
becomes subject to restrictions on the amount of such a category of liabilities or assets that it
may hold, then, if such Lender so elects by notice to the



Page 54









 







Borrower (with a copy to the Administrative Agent), the obligation of such Lender to make or
Continue, or to Convert any other Type of Loans into, LIBOR Loans hereunder shall be suspended
until such Regulatory Change ceases to be in effect (in which case the provisions of Section
5.5 shall apply).



     (c) Additional Costs in Respect of Letters of Credit. Without limiting the
obligations of the Borrower under the preceding subsections of this Section (but without
duplication), if as a result of any Regulatory Change or any risk-based capital guideline or other
requirement heretofore or hereafter issued by any Governmental Authority there shall be imposed,
modified or deemed applicable any tax, reserve, special deposit, capital adequacy or similar
requirement against or with respect to or measured by reference to Letters of Credit and the result
shall be to increase the cost to the Administrative Agent of issuing (or any Lender of purchasing
participations in) or maintaining its obligation hereunder to issue (or purchase participations in)
any Letter of Credit or reduce any amount receivable by the Administrative Agent or any Lender
hereunder in respect of any Letter of Credit, then, upon demand by the Administrative Agent or such
Lender, the Borrower shall pay immediately to the Administrative Agent for its account or the
account of such Lender, as applicable, from time to time as specified by the Administrative Agent
or a Lender, such additional amounts as shall be sufficient to compensate the Administrative Agent
or such Lender for such increased costs or reductions in amount.



     (d) Notification and Determination of Additional Costs. Each of the Administrative
Agent and each Lender, as the case may be, shall promptly notify the Borrower of any event
occurring after the Agreement Date entitling the Administrative Agent or such Lender to
compensation under any of the preceding subsections of this Section as promptly as practicable;
provided, however, the failure of the Administrative Agent or any Lender to give
such notice shall not release the Borrower from any of its obligations hereunder. The
Administrative Agent or such Lender agrees to furnish to the Borrower (and in the case of a Lender
to the Administrative Agent, as well) a certificate setting forth the basis and amount of each
request by the Administrative Agent or such Lender for compensation under this Section.
Determinations by the Administrative Agent or any Lender of the effect of any Regulatory Change
shall be conclusive, provided that such determinations are made on a reasonable basis and in good
faith.



Section 5.2 Suspension of LIBOR Loans.




     Anything herein to the contrary notwithstanding, if, on or prior to the determination of LIBOR
for any Interest Period:



     (a) the Administrative Agent reasonably determines (which determination shall be conclusive,
absent manifest error) that quotations of interest rates for the relevant deposits referred to in
the definition of LIBOR are not being provided in the relevant amounts or for the relevant
maturities for purposes of determining rates of interest for LIBOR Loans as provided herein or is
otherwise unable to determine LIBOR, or



     (b) the Administrative Agent reasonably determines (which determination shall be conclusive,
absent manifest error) that the relevant rates of interest referred to in the definition of LIBOR
upon the basis of which the rate of interest for LIBOR Loans for such Interest Period is



Page 55









 







to be determined are not likely to adequately cover the cost to any Lender of making or
maintaining LIBOR Loans for such Interest Period; or



     (c) any Lender that has outstanding a Bid Rate Quote with respect to a LIBOR Margin Loan
reasonably determines (which determination shall be conclusive, absent manifest error) that LIBOR
will not adequately and fairly reflect the cost to such Lender of making or maintaining such LIBOR
Margin Loan,


then the Administrative Agent shall give the Borrower and each Lender prompt notice thereof and, so
long as such condition remains in effect, (i) the Lenders shall be under no obligation to, and
shall not, make additional LIBOR Loans, Continue LIBOR Loans or Convert Loans into LIBOR Loans and
the Borrower shall, on the last day of each current Interest Period for each outstanding LIBOR
Loan, either repay such Loan or Convert such Loan into a Base Rate Loan and (ii) in the case of
clause (c) above, no Lender that has outstanding a Bid Rate Quote with respect to a LIBOR Margin
Loan shall be under any obligation to make such Loan.




Section 5.3 Illegality.




     Notwithstanding any other provision of this Agreement, if it becomes unlawful for any Lender
to honor its obligation to make or maintain LIBOR Loans hereunder, then such Lender shall promptly
notify the Borrower thereof (with a copy to the Administrative Agent) and such Lender’s obligation
to make or Continue, or to Convert Loans of any other Type into, LIBOR Loans shall be suspended
until such time as such Lender may again make and maintain LIBOR Loans (in which case the
provisions of Section 5.5 shall be applicable).



Section 5.4 Compensation.




     The Borrower shall pay to the Administrative Agent for the account of each Lender, upon the
request of such Lender through the Administrative Agent, such amount or amounts as shall be
sufficient (in the reasonable opinion of such Lender) to compensate it for any loss, cost or
expense that such Lender reasonably determines is attributable to:



     (a) any payment or prepayment (whether mandatory or optional) of a LIBOR Loan, or Conversion
of a LIBOR Loan or Bid Rate Loan, made by such Lender for any reason (including, without
limitation, acceleration) on a date other than the last day of the Interest Period for such Loan;
or



     (b) any failure by the Borrower for any reason (including, without limitation, the failure of
any of the applicable conditions precedent specified in Article VI to be satisfied) to
borrow a LIBOR Loan or Bid Rate Loan from such Lender on the date for such borrowing, or to Convert
a Base Rate Loan into a LIBOR Loan or Continue a LIBOR Loan on the requested date of such
Conversion or Continuation.


Not in limitation of the foregoing, such compensation shall include, without limitation; (i) in the
case of a LIBOR Loan, an amount equal to the then present value of (A) the amount of interest that
would have accrued on such LIBOR Loan for the remainder of the Interest Period at the rate
applicable to such LIBOR Loan, less (B) the amount of interest that would accrue on the same LIBOR
Loan for the same period if LIBOR were set on the date on which such LIBOR Loan was


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repaid, prepaid or Converted or the date on which the Borrower failed to borrow, Convert or
Continue such LIBOR Loan, as applicable, calculating present value by using as a discount rate
LIBOR quoted on such date and (ii) in the case of a Bid Rate Loan, the sum of such losses and
expenses as the Lender or Designated Lender who made such Bid Rate Loan may reasonably incur by
reason of such prepayment, including without limitation any losses or expenses incurred in
obtaining, liquidating or employing deposits from third parties. Upon Borrower’s request (made
through the Administrative Agent), any Lender seeking compensation under this Section shall provide
the Borrower with a statement setting forth the basis for requesting such compensation and the
method for determining the amount thereof. Any such statement shall be conclusive absent manifest
error.




Section 5.5 Treatment of Affected Loans.




     If the obligation of any Lender to make LIBOR Loans or to Continue, or to Convert Base Rate
Loans into, LIBOR Loans shall be suspended pursuant to Section 5.1(b), 5.2
or 5.3, then such Lender’s LIBOR Loans shall be automatically Converted into Base Rate
Loans on the last day(s) of the then current Interest Period(s) for LIBOR Loans (or, in the case of
a Conversion required by Section 5.1(b) or 5.3, on such earlier date as
such Lender may specify to the Borrower with a copy to the Administrative Agent) and, unless and
until such Lender gives notice as provided below that the circumstances specified in
Section 5.1, 5.2 or 5.3 that gave rise to such Conversion no longer
exist:



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



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


If such Lender gives notice to the Borrower (with a copy to the Administrative Agent) that the
circumstances specified in Section 5.1 or 5.3 that gave rise to the
Conversion of such Lender’s LIBOR Loans pursuant to this Section no longer exist (which such Lender
agrees to do promptly upon such circumstances ceasing to exist) at a time when LIBOR Loans made by
other Lenders are outstanding, then such Lender’s Base Rate Loans shall be automatically Converted,
on the first day(s) of the next succeeding Interest Period(s) for such outstanding LIBOR Loans, to
the extent necessary so that, after giving effect thereto, all Loans held by the Lenders holding
LIBOR Loans and by such Lender are held pro rata (as to principal amounts, Types and Interest
Periods) in accordance with their respective Commitments.




Section 5.6 Change of Lending Office.




     Each Lender agrees that it will use commercially reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate an alternate Lending Office
with respect to any of its Loans affected by the matters or circumstances described in
Sections 3.12, 5.1 or 5.3 to reduce the liability of the Borrower
or avoid the results provided thereunder, so long as such designation is not disadvantageous to
such Lender as determined by such Lender



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in its sole discretion, except that such Lender shall have no obligation to designate a
Lending Office located in the United States of America.



Section 5.7 Assumptions Concerning Funding of LIBOR Loans.




     Calculation of all amounts payable to a Lender under this Article V shall be made as
though such Lender had actually funded LIBOR Loans through the purchase of deposits in the relevant
market bearing interest at the rate applicable to such LIBOR Loans in an amount equal to the amount
of the LIBOR Loans and having a maturity comparable to the relevant Interest Period;
provided, however, that each Lender may fund each of its LIBOR Loans in any manner
it sees fit and the foregoing assumption shall be used only for calculation of amounts payable
under this Article V.



ARTICLE VI CONDITIONS PRECEDENT




Section 6.1 Initial Conditions Precedent.




     The obligation of the Lenders to effect or permit the occurrence of the first Credit Event
hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the
satisfaction or waiver of the following conditions precedent:



     (a) The Administrative Agent shall have received each of the following, in form and substance
reasonably satisfactory to the Administrative Agent:




     (i) counterparts of this Agreement executed by each of the parties hereto;




     (ii) (A) Revolving Notes executed by Borrower, payable to each Lender, (B) Bid Rate
Notes executed by Borrower, each in the full amount of the potential Bid Rate Borrowing and
one payable to each Lender, and (C) a Swingline Note executed by Borrower and payable to the
Swingline Lender, each complying with the terms of Section 2.11;




     (iii) the Guaranty executed by each of the Guarantors initially to be a party thereto;




     (iv) an opinion of counsel to the Borrower and such other Loan Parties as
Administrative Agent shall request, addressed to the Administrative Agent and the Lenders
substantially in the form set forth in Exhibit H;




     (v) the certificate or articles of incorporation, articles of organization, certificate
of limited partnership, declaration of trust or other comparable organizational instrument
(if any) of (A) the Borrower, certified as of a recent date by the Secretary of State of the
State of organization of such Person, and (B), each of the other Loan Parties, certified as
of a recent date (and with reference to documents filed and certified by the applicable
state Secretary of State) by the Secretary or Assistant Secretary (or other individual
performing similar functions) of such Person;



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     (vi) a certificate of good standing (or certificate of similar meaning) with respect to
the Borrower and each of the other Loan Parties issued as of a recent date by the Secretary
of State of the state of formation of each such Person and, within thirty (30) days
following the Effective Date, certificates of qualification to transact business or other
comparable certificates issued by each Secretary of State (and any state department of
taxation, as applicable) of each state in which such Person owns a Pool Asset;




     (vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or
other individual performing similar functions) of the Borrower and each of the other Loan
Parties with respect to each of the officers of such Person authorized to execute and
deliver the Loan Documents to which such Person is a party, and in the case of the Borrower,
authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of
Conversion, Notices of Continuation and requests for Letters of Credit;




     (viii) copies certified by the Secretary or Assistant Secretary (or other individual
performing similar functions) of the Borrower of (x) the by-laws of Borrower and (y) all
corporate or other necessary action taken by Borrower to authorize the execution, delivery
and performance of the Loan Documents to which it is a party;




     (ix) a Pool Certificate calculated for the Borrower’s fiscal quarter ending September
30, 2005;




     (x) a Compliance Certificate calculated for the Borrower’s fiscal quarter ending
September 30, 2005;




     (xi) evidence satisfactory to the Administrative Agent that the Fees then due and
payable under Section 3.6, together with all other fees, expenses and reimbursement
amounts due and payable to the Administrative Agent and any of the Lenders, including
without limitation, the fees and expenses of counsel to the Administrative Agent, have been
paid;




     (xii) a fully executed and satisfactory Solvency Certificate for each Guarantor and
provided by the Chief Financial Officer of Borrower in the form attached as Exhibit
L hereto;




     (xiii) a certificate from Borrower (A) certifying that all Persons required by
Section 8.14 to become Guarantors hereunder have executed a Guaranty and become
parties to the Indemnity and Contribution Agreement, and (B) listing the Subsidiaries and
Unconsolidated Affiliates which are not becoming Guarantors hereunder by operation
of the proviso in Section 8.14(a), which listing shall include a certification to
Administrative Agent and Lenders (along with a statement as to the reasons why) that such
Persons are not required to become a Guarantors; and




     (xiv) such other documents and instruments as the Administrative Agent, or any Lender
through the Administrative Agent, may reasonably request.



     (b) In the good faith judgment of the Administrative Agent:



Page 59









 






     (i) There shall not have occurred or become known to the Administrative Agent or any of
the Lenders any event, condition, situation or status since the date of the information
contained in the financial and business projections, budgets, pro forma data and forecasts
concerning the Borrower and its Subsidiaries delivered to the Administrative Agent and the
Lenders prior to the Agreement Date that has had or could reasonably be expected to result
in a Material Adverse Effect;




     (ii) No litigation, action, suit, investigation or other arbitral, administrative or
judicial proceeding shall be pending or threatened which could reasonably be expected to (A)
result in a Material Adverse Effect or (B) restrain or enjoin, impose materially burdensome
conditions on, or otherwise materially and adversely affect the ability of any Loan Party to
fulfill its obligations under the Loan Documents to which it is a party; and




     (iii) The Borrower and the other Loan Parties shall have received all approvals,
consents and waivers, and shall have made or will make contemporaneously with the making of
the first Loan or given all necessary filings and notices as shall be required to consummate
the transactions contemplated hereby without the occurrence of any default under, conflict
with or violation of (A) any Applicable Law or (B) any agreement, document or instrument to
which any Loan Party is a party or by which any of them or their respective properties is
bound, except for such approvals, consents, waivers, filings and notices the receipt, making
or giving of which, or the failure to make, give or receive which, would not reasonably be
likely to (1) have a Material Adverse Effect, or (2) restrain or enjoin, impose materially
burdensome conditions on, or otherwise materially and adversely affect the ability of the
Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to
which it is a party.



     (c) Borrowers shall have paid to Administrative Agent, for the benefit of Lenders, all
interest and other fees due under the Prior Credit Agreement, prorated to the effective date of
this Agreement and, subject to the provisions of Section 2.1(a) with respect to the
repayment of outstanding Bid Rate Loans, any repayment of Loan principal required to remain in
compliance with the reduced Total Commitment Amount effectuated by the Agreement.



     (d) Lenders, as applicable, shall have completed whatever balancing transfers amongst
themselves as are necessary in order to result in each Lender having the outstanding balances
referenced on Schedule 1.1(A) attached hereto.



Section 6.2 Conditions Precedent to All Loans and Letters of Credit.




     The obligations of (i) Lenders to make any Loans, and (ii) the Administrative Agent to issue
Letters of Credit or make any Swingline Loan, are each subject to the further condition precedent
that: (a) no Default or Event of Default shall exist as of the date of the making of such Loan or
date of issuance of such Letter of Credit or would exist immediately after giving effect thereto;
(b) the representations and warranties made or deemed made by the Borrower and each other Loan
Party in the Loan Documents to which any of them is a party, shall be true and correct in all
material respects on and as of the date of the making of such Loan or date of issuance of such
Letter of Credit with the same force and effect as if made on and as of such date except to the
extent that such representations and warranties expressly relate solely to an earlier



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date (in which case such representations and warranties shall have been true and accurate on
and as of such earlier date) and except for changes in factual circumstances specifically and
expressly permitted hereunder and (c) in the case of the borrowing of Revolving Loans, the
Administrative Agent shall have received a timely Notice of Borrowing, provided,
however, that no Notice of Borrowing will be required for any Loan proceeds attributable to
the outstanding principal balance under the Prior Credit Agreement as of the date hereof; all such
outstanding principal balance shall be deemed to be Loan proceeds disbursed under this Agreement
pursuant to the provisions contained herein. Each Credit Event shall constitute a certification by
the Borrower to the effect set forth in the preceding sentence (both as of the date of the giving
of notice relating to such Credit Event and, unless the Borrower otherwise notifies the
Administrative Agent prior to the date of such Credit Event, as of the date of the occurrence of
such Credit Event). In addition, the Borrower shall be deemed to have represented to the
Administrative Agent and the Lenders at the time such Loan is made or such Letter of Credit is
issued that all conditions to the making of such Loan or issuing of such Letter of Credit contained
in this Article VI have been satisfied.



Section 6.3 Conditions as Covenants.




     If the Lenders permit the making of any Loans, or the Administrative Agent issues a Letter of
Credit, prior to the satisfaction of all conditions precedent set forth in Sections
6.1 and 6.2, the Borrower shall nevertheless cause such condition or conditions to
be satisfied within five (5) Business Days after the date of the making of such Loans or the
issuance of such Letter of Credit. Unless set forth in writing to the contrary, the making of its
initial Loan by a Lender shall constitute a confirmation by such Lender to the Administrative Agent
and the other Lenders that insofar as such Lender is concerned the Borrower has satisfied the
conditions precedent for initial Loans set forth in Sections 6.1 and 6.2.



ARTICLE VII REPRESENTATIONS AND WARRANTIES




Section 7.1 Representations and Warranties.




     In order to induce the Administrative Agent and each Lender to enter into this Agreement and
to make Loans and, in the case of the Administrative Agent, to issue Letters of Credit and make
Swingline Loans, and, in the case of the Lenders, to acquire participations in Letters of Credit
and Swingline Loans, the Borrower represents and warrants to the Administrative Agent and each
Lender as follows, provided, however, that with respect to Non-Credit Subsidiaries
only, the following representations and warranties are made only to the extent that a failure of
any such representation or warranty by such Non-Credit Subsidiaries could reasonably be expected to
have, in each instance or in the aggregate, a Material Adverse Effect:



     (a) Organization; Power; Qualification. Each of the Loan Parties is a corporation,
partnership or other legal entity, duly organized, validly existing and in good standing under the
jurisdiction of its incorporation or organization, has the corporate or similar power and authority
to own or lease its respective properties and to carry on its respective business as now being and
hereafter proposed to be conducted and is duly qualified and is in good standing as a foreign
corporation, partnership or other legal entity, and authorized to do business, in each jurisdiction
in which the character of its properties or the nature of its business requires such qualification
or



Page 61









 







authorization and where the failure to be so qualified or authorized could reasonably be
expected to have, in each instance, a Material Adverse Effect.



     (b) Ownership Structure. Part I of Schedule 7.1(b) is, as of the
Effective Date, a complete and correct list of all Subsidiaries of the Borrower setting forth for
each such Subsidiary, (i) the jurisdiction of organization of such Person, (ii) each Person holding
any Equity Interest in such Person, (iii) the nature of the Equity Interests held by each such
Person and (iv) the percentage of ownership of such Person represented by such Equity Interests
(provided that non-material errors in such schedule shall not constitute a Default hereunder so
long as all parties which are required to become Guarantors hereunder have in fact become
Guarantors hereunder, notwithstanding such errors). Except as disclosed in such Schedule, as of
the Effective Date (A) either the Borrower or one of the other Loan Parties owns, free and clear of
all Liens (other than Permitted Liens), and has the unencumbered right to vote, all outstanding
Equity Interests in each Subsidiary shown to be held by it on such Schedule, (B) all of the issued
and outstanding capital stock of each such Subsidiary organized as a corporation is validly issued,
fully paid and nonassessable and (C) there are no outstanding subscriptions, options, warrants,
commitments, preemptive rights or agreements of any kind (including, without limitation, any
stockholders’ or voting trust agreements) for the issuance, sale, registration or voting of, or
outstanding securities convertible into, any additional shares of capital stock of any class, or
partnership or other ownership interests of any type in, any such Subsidiary. Part II of
Schedule 7.1(b) correctly sets forth, as of the Effective Date, all Unconsolidated
Affiliates of the Borrower, including the correct legal name of such Unconsolidated Affiliates, the
type of legal entity which each such Unconsolidated Affiliate is, and all ownership interests in
such Unconsolidated Affiliates held directly or indirectly by the Borrower.



     (c) Authorization of Agreement, Notes, Loan Documents and Borrowings. Each Loan Party
has the corporate or similar right and power, and has taken all necessary action to authorize it,
to borrow and obtain other extensions of credit hereunder (in the case of the Borrower) and to
execute, deliver and perform each of the Loan Documents to which it is a party in accordance with
their respective terms and to consummate the transactions contemplated hereby and thereby, as the
case may be. This Agreement, the Notes and each of the other Loan Documents to which the Borrower
or any other Loan Party is a party have been duly executed and delivered by the duly authorized
officers of such Person and each is a legal, valid and binding obligation of such Person
enforceable against such Person in accordance with its respective terms, except as the same may be
limited by bankruptcy, insolvency, and other laws affecting the rights of creditors generally and
the availability of equitable remedies for the enforcement of certain obligations contained herein
or therein may be limited by equitable principles generally.



     (d) Compliance of Agreement, Etc. with Laws. The execution, delivery and performance
of this Agreement and the other Loan Documents to which the Borrower or any other Loan Party is a
party in accordance with their respective terms and the borrowings and other extensions of credit
hereunder do not and will not, by the passage of time, the giving of notice, or both: (i) require
any Governmental Approval or violate any Applicable Law (including all Environmental Laws) relating
to the Borrower or any other Loan Party; (ii) conflict with or result in a breach of the articles
of incorporation or the bylaws of the Borrower or the organizational documents of any other Loan
Party, or conflict with or result in a breach of any



Page 62









 







term or condition that would constitute a default under any Material Contract; or (iii) result
in or require the creation or imposition of any Lien (other than a Permitted Lien) upon or with
respect to any Eligible Pool Asset now owned or hereafter acquired by the Borrower or any other
Loan Party other than in favor of the Administrative Agent for the benefit of the Lenders.



     (e) Compliance with Law; Governmental Approvals. The Borrower, each other Loan Party
and each other Subsidiary is in compliance with each Governmental Approval and all other Applicable
Laws relating to it except for non-compliances which, and Governmental Approvals the failure to
possess which, could not, individually or in the aggregate, reasonably be expected to cause a
Default or Event of Default or have a Material Adverse Effect.



     (f) List of Properties and Marketable Securities. Schedule 7.1(f) is, as of
the Effective Date, a complete and correct listing of all Properties and Marketable Securities of
the Borrower, the other Loan Parties and the other Subsidiaries, setting forth, (i) for each such
Property, the current leasing status of such Property and whether such Property is a Development
Property or Redevelopment Property and, if such Property is a Development Property or Redevelopment
Property, the status of completion of such Property, and (i) for each such Marketable Security, as
applicable, the investment type; the name of applicable company/investment, the number and type of
shares held, the exchange on which it is traded, and the last quoted value. Each of the Borrower
and the other Loan Parties and all other Subsidiaries has good, marketable and legal title to, or a
valid leasehold interest in, its respective Properties.



     (g) Existing Indebtedness. Schedule 7.1(g) is, as of the Effective Date, a
complete and correct listing of all Indebtedness of each of the Loan Parties and the other
Subsidiaries which is secured by any Lien (other than Permitted Liens), together with a description
of all of the property subject to such Lien, and all Guarantees of Indebtedness provided by each of
the Loan Parties and the other Subsidiaries. As of the Agreement Date, each of the Loan Parties
has performed and is in compliance with all of the material terms of its respective Indebtedness
and all instruments and agreements relating thereto, and no default or event of default, or event
or condition which with the giving of notice, the lapse of time, or both, would constitute a
default or event of default, exists with respect to any such Indebtedness.



     (h) Material Contracts; Eligible Ground Leases. Schedule 7.1(h) is, as of the
Effective Date, a true, correct and complete listing of all Material Contracts (other than those
Material Contracts which are loan documents with respect to Secured Indebtedness). Each of the
Borrower, the other Loan Parties and the other Subsidiaries that are parties to any Material
Contract has performed and is in compliance with all of the terms of such Material Contract, and no
default or event of default, or event or condition which with the giving of notice, the lapse of
time, or both, would constitute a default or event of default, exists with respect to any such
Material Contract. As of the Agreement Date, Borrower has provided Administrative Agent with true,
correct and complete copies of each Eligible Ground Lease.



     (i) Litigation. Except as set forth on Schedule 7.1(i), there are no actions,
suits or proceedings pending (nor, to the knowledge of the Borrower, are there any actions, suits
or proceedings threatened) against or in any other way relating adversely to or affecting the
Borrower, any other Loan Party, any other Subsidiary or any of their respective property in any
court or before any arbitrator of any kind or before or by any other Governmental Authority



Page 63









 







which, if adversely determined, would reasonably be expected to have a Material Adverse
Effect, and there are no strikes, slow downs, work stoppages or walkouts or other labor disputes in
progress or threatened relating to the Borrower or any other Loan Party.



     (j) Taxes. All material federal, state and other tax returns of the Borrower, each
other Loan Party and each other Subsidiary required by Applicable Law, which, to the knowledge of
Borrower, are to be filed have been duly filed, and all federal, state and other taxes, assessments
and other governmental charges or levies upon the Borrower, each other Loan Party and each other
Subsidiary and their respective properties, income, profits and assets which are due and payable
have been paid, except any such nonpayment or non-filing which is at the time permitted under
Section 8.6. As of the Agreement Date, none of the United States income tax returns of the
Borrower, any other Loan Party or any other Subsidiary is under audit.



     (k) Financial Statements. The Borrower has furnished to each Lender copies of (i) the
audited consolidated balance sheet of the Borrower and its consolidated Subsidiaries for the fiscal
years ending December 31, 2004, December 31, 2003 and December 31, 2002, as restated, as
applicable, and the related consolidated statements of operations, comprehensive income (only to
the extent regularly prepared by or on behalf of the Borrower), stockholders’ equity and cash flow
for the fiscal years ending on such dates, with the opinion thereon of Deloitte & Touche LLP, and
(ii) the unaudited consolidated balance sheet of the Borrower and its consolidated Subsidiaries for
the fiscal quarter ending September 30, 2005, and the related consolidated statements of
operations, comprehensive income (only to the extent regularly prepared by or on behalf of the
Borrower), stockholders’ equity and cash flow of the Borrower and its consolidated Subsidiaries for
the three fiscal quarter period ended on such date. Such balance sheets and statements (including
in each case related schedules and notes) present fairly, in accordance with GAAP consistently
applied throughout the periods involved, the consolidated financial position of the Borrower and
its consolidated Subsidiaries as at their respective dates and the results of operations and the
cash flow for such periods (subject, as to interim statements, to changes resulting from normal
year-end audit adjustments). Neither the Borrower nor any of its Subsidiaries has on the Agreement
Date any material contingent liabilities, liabilities for taxes, unusual or long-term commitments
or unrealized or forward anticipated losses from any unfavorable commitments, except as referred to
or reflected or provided for in said financial statements.



     (l) No Material Adverse Change; Solvency. Except as set forth in the financial
statements referred to in subsection (k) above, since December 31, 2004, there has been no material
adverse change in the consolidated financial condition, results of operations, business or
prospects of the Borrower and its consolidated Subsidiaries taken as a whole. Each of the Borrower
and the other Loan Parties is Solvent.



     (m) ERISA. Each member of the ERISA Group has fulfilled its obligations under the
minimum funding standards of ERISA and the Internal Revenue Code with respect to each Plan and is
in compliance in all material respects with the presently applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan. No member of the ERISA Group has (i) sought a
waiver of the minimum funding standard under Section 412 of the Internal Revenue Code in respect of
any Plan, (ii) failed to make any contribution or payment to any Plan or Multiemployer Plan or in
respect of any Benefit Arrangement, or made any amendment to any



Page 64









 







Plan or Benefit Arrangement, which has resulted or could result in the imposition of a Lien or
the posting of a bond or other security under ERISA or the Internal Revenue Code or (iii) incurred
any liability under Title IV of ERISA other than a liability to the PBGC for premiums under Section
4007 of ERISA.



     (n) Absence of Defaults. None of the Borrower, the other Loan Parties or the other
Subsidiaries has violated any material provision of its articles of incorporation, bylaws,
partnership agreement or other similar organizational documents, and no event has occurred, which
has not been remedied, cured or waived: (i) which constitutes a Default or an Event of Default; or
(ii) which constitutes, or which with the passage of time, the giving of notice, or both, would
constitute, a default or event of default by the Borrower, any other Loan Party or any other
Subsidiary under any agreement (other than this Agreement) or judgment, decree or order to which
any such Person is a party or by which any such Person or any of its respective properties may be
bound where such default or event of default could, individually or in the aggregate, have a
Material Adverse Effect.



     (o) Environmental Laws. In the ordinary course of business and from time to time each
of the Loan Parties and the other Subsidiaries conducts reviews of the effect of Environmental Laws
on its respective business, operations and properties, including without limitation, its respective
Properties, in the course of which such Loan Party or such other Subsidiary identifies and
evaluates associated liabilities and costs (including, without limitation, determining whether any
capital or operating expenditures are required for clean-up or closure of properties presently or
previously owned, determining whether any capital or operating expenditures are required to achieve
or maintain compliance in all material respects with Environmental Laws or required as a condition
of any Governmental Approval, any contract, or any related constraints on operating activities,
determining whether any costs or liabilities exist in connection with off-site disposal of wastes
or Hazardous Materials, and determining whether any actual or potential liabilities to third
parties, including employees, and any related costs and expenses exist). Each of the Loan Parties
and the other Subsidiaries is in compliance with all applicable Environmental Laws and has obtained
all Governmental Approvals which are required under Environmental Laws and is in compliance with
all terms and conditions of such Governmental Approvals, where with respect to each of the
foregoing the failure to obtain or to comply with could be reasonably expected to have a Material
Adverse Effect. Except for any of the following matters that could not be reasonably expected to
have a Material Adverse Effect, no Loan Party is aware of, nor has it received notice of, any past
or present events, conditions, circumstances, activities, practices, incidents, actions, or plans
which, with respect to any Loan Party or any other Subsidiary, may unreasonably interfere with or
prevent compliance or continued compliance with Environmental Laws, or may give rise to any
common-law or legal liability, based on or related to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport, or handling or the emission, discharge, release or
threatened release into the environment, of any Hazardous Material; and there is no civil,
criminal, or administrative action, suit, demand, claim, hearing, notice, or demand letter, notice
of violation, investigation, or proceeding pending or, to the Borrower’s knowledge after due
inquiry, threatened, against any Loan Party or any other Subsidiary relating in any way to
Environmental Laws which, if determined adversely to such Loan Party or such other Subsidiary,
could be reasonably expected to have a Material Adverse Effect.



Page 65









 





     (p) Investment Company; Public Utility Holding Company. No Loan Party is (i) an
“investment company” or a company “controlled” by an “investment company” within the meaning of the
Investment Company Act of 1940, as amended, (ii) a “holding company” or a “subsidiary company” of a
“holding company”, or an “affiliate” of a “holding company” or of a “subsidiary company” of a
“holding company”, within the meaning of the Public Utility Holding Company Act of 1935, as
amended, or (iii) subject to any other Applicable Law which purports to regulate or restrict its
ability to borrow money or obtain other extensions of credit or to consummate the transactions
contemplated by this Agreement or to perform its obligations under any Loan Document to which it is
a party.



     (q) Margin Stock. No Loan Party is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose, whether immediate, incidental or
ultimate, of buying or carrying “margin stock” within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System.



     (r) Affiliate Transactions. Except as permitted by Section 10.8, none of the
Borrower, any other Loan Party nor any other Subsidiary is a party to or bound by any agreement or
arrangement (whether oral or written) with any Affiliate.



     (s) Intellectual Property. Each of the Loan Parties owns or has the right to use,
under valid license agreements or otherwise, all patents, licenses, franchises, trademarks,
trademark rights, trade names, trade name rights, trade secrets and copyrights (collectively,
“Intellectual Property”) necessary to the conduct of its businesses, without known conflict with
any patent, license, franchise, trademark, trade secret, trade name, copyright, or other
proprietary right of any other Person. All such Intellectual Property is fully protected and/or
duly and properly registered, filed or issued in the appropriate office and jurisdictions for such
registrations, filing or issuances. No material claim has been asserted by any Person with respect
to the use of any such Intellectual Property, or challenging or questioning the validity or
effectiveness of any such Intellectual Property.



     (t) Business. As of the Agreement Date, the Borrower and its Subsidiaries are engaged
in the business of acquiring, renovating, developing and managing income producing Properties
(consisting primarily of Retail Properties), together with related business activities and
investments incidental thereto.



     (u) Broker’s Fees. No broker’s or finder’s fee, commission or similar compensation
will be payable with respect to the transactions contemplated hereby. No other similar fees or
commissions will be payable by any Loan Party for any other services rendered to any Loan Party or
any other Subsidiaries ancillary to the transactions contemplated hereby.



     (v) Accuracy and Completeness of Information. All written information, reports and
other papers and data furnished to the Administrative Agent or any Lender by, on behalf of, or at
the direction of, the Borrower, any other Loan Party or any other Subsidiary were, at the time of
their respective dates or certification, complete and correct in all material respects, to the
extent necessary to give the recipient a true and accurate knowledge of the subject matter, or, in
the case of financial statements, present fairly, in accordance with GAAP consistently applied
throughout the periods involved (subject, as to interim statements, to changes resulting from



Page 66









 







normal year-end audit adjustments and the exclusion of notes), the financial position of the
Persons involved as at the date thereof and the results of operations for such periods. No fact is
known to the Borrower which has had, or may in the future have (so far as the Borrower can
reasonably foresee), a Material Adverse Effect which has not been set forth in the financial
statements referred to in Section 7.1(k) or in such information, reports or other papers or
data or otherwise disclosed in writing to the Administrative Agent and the Lenders prior to the
Effective Date. The documents furnished or written statements made to the Administrative Agent or
any Lender in connection with the negotiation, preparation or execution, or pursuant to, of this
Agreement or any of the other Loan Documents, taken as a whole, do not contain, as of the time of
their respective dates or certification, any untrue statement of a fact material to the
creditworthiness of the Borrower, any other Loan Party or any other Subsidiary or omitted when
furnished or made to state a material fact necessary in order to make the statements contained
therein not misleading.



     (w) Not Plan Assets; No Prohibited Transactions. None of the assets of any Loan Party
or any other Subsidiary constitutes “plan assets” within the meaning of ERISA, the Internal Revenue
Code and the respective regulations promulgated thereunder, of any ERISA Plan. The execution,
delivery and performance of the Loan Documents by the Loan Parties, and the borrowing, other credit
extensions and repayment of amounts thereunder, do not and will not constitute “prohibited
transactions” under ERISA or the Internal Revenue Code.



     (x) Pool Assets. Each of the Pool Assets (i) qualifies as an Eligible Pool Asset,
(ii) is not subject to a Lien other than a Permitted Lien, and (iii) other than as specifically
noted on Schedule 7.1(x) attached hereto, is owned by a Borrower or a Guarantor.



Section 7.2 Survival of Representations and Warranties, Etc.




     All statements contained in any certificate required pursuant to this Agreement or any other
Loan Document and delivered by or on behalf of the Borrower to the Administrative Agent or any
Lender (including, but not limited to, any such statement made in or in connection with any
amendment thereto or any statement contained in any such certificate or attached financial
statement) shall constitute representations and warranties made by the Borrower under this
Agreement. All representations and warranties made under this Agreement and the other Loan
Documents shall be deemed to be made at and as of the Agreement Date, the Effective Date and at and
as of the date of the occurrence of each Credit Event, except to the extent that such
representations and warranties expressly relate solely to an earlier date (in which case such
representations and warranties shall have been true and accurate on and as of such earlier date)
and except for changes in factual circumstances specifically permitted hereunder. All such
representations and warranties shall survive the effectiveness of this Agreement, the execution and
delivery of the Loan Documents and the making of the Loans and the issuance of the Letters of
Credit.



ARTICLE VIII AFFIRMATIVE COVENANTS




     For so long as this Agreement is in effect, unless the Requisite Lenders (or, if required
pursuant to Section 13.7, all of the Lenders) shall otherwise consent in the manner
provided for in Section 13.7, the Borrower shall comply with the following covenants,
provided, however,



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that with respect to Non-Credit Subsidiaries only, the following covenants are made only to
the extent that a failure of any such covenant by such Non-Credit Subsidiaries could reasonably be
expected to have, in each instance or in the aggregate, a Material Adverse Effect:



Section 8.1 Preservation of Existence and Similar Matters.




     Except as otherwise permitted under Section 10.4, the Borrower shall, and shall cause
each other Loan Party and each other Subsidiary to, preserve and maintain its respective existence,
rights, franchises, licenses and privileges in the jurisdiction of its incorporation or formation
and qualify and remain qualified and authorized to do business in each jurisdiction in which the
character of its properties or the nature of its business requires such qualification and
authorization and where the failure to be so authorized and qualified could reasonably be expected
to have a Material Adverse Effect.



Section 8.2 Compliance with Applicable Law and Material Contracts.




     The Borrower shall, and shall cause each other Loan Party and each other Subsidiary to, comply
with (a) all Applicable Law, including the obtaining of all Governmental Approvals, the failure
with which to comply could reasonably be expected to have a Material Adverse Effect, and (b) all
terms and conditions of all Material Contracts to which it is a party.



Section 8.3 Maintenance of Property.




     In addition to the requirements of any of the other Loan Documents, the Borrower shall, and
shall cause each other Loan Party and each other Subsidiary to, (a) keep all of its material
Properties in good working order and condition, ordinary wear and tear excepted, and (b) from time
to time make or cause to be made all needed and appropriate repairs, renewals, replacements and
additions to such properties, so that the business carried on in connection therewith may be
properly and advantageously conducted at all times.



Section 8.4 Conduct of Business.




     The Borrower shall, and shall cause the other Loan Parties and each other Subsidiary to, carry
on its respective businesses as described in Section 7.1(t) and not enter into any line of
business not otherwise engaged in by such Person as of the Agreement Date.



Section 8.5 Insurance.




     The Borrower shall, and shall cause each other Loan Party and each other Subsidiary to,
maintain insurance with financially sound and reputable insurance companies against such risks and
in such amounts as is customarily maintained by similar businesses or as may be required by
Applicable Law. Such insurance shall, in any event, include replacement cost fire and extended
coverage, public liability, property damage, workers’ compensation and flood insurance (if required
under Applicable Law). The Borrower shall from time to time deliver to the Administrative Agent
upon request a detailed list, together with copies of all policies of the insurance then in effect,
stating the names of the insurance companies, the amounts and rates of the insurance, the dates of
the expiration thereof and the properties and risks covered thereby.



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Section 8.6 Payment of Taxes and Claims.




     The Borrower shall, and shall cause each other Loan Party and each other Subsidiary to, pay
and discharge when due (a) all taxes, assessments and governmental charges or levies imposed upon
it or upon its income or profits or upon any properties belonging to it, and (b) all lawful claims
of materialmen, mechanics, carriers, warehousemen and landlords for labor, materials, supplies and
rentals which, if unpaid, might become a Lien on any properties of such Person; provided,
however, that this Section shall not require the payment or discharge of non-consensual
Liens of less than $1,500,000 per Property or $5,000,000 in the aggregate, or any other tax,
assessment, charge, levy or claim which is being contested in good faith by appropriate proceedings
which operate to suspend the collection thereof and for which adequate reserves have been
established on the books of such Person in accordance with GAAP.



Section 8.7 Books and Records; Inspections.




     The Borrower will, and will cause each other Loan Party and each other Subsidiary to, keep
proper books of record and account in which full, true and correct entries shall be made of all
dealings and transactions in relation to its business and activities. The Borrower will, and will
cause each other Loan Party and each other Subsidiary to, permit representatives of the
Administrative Agent or any Lender to visit and inspect any of their respective properties, to
examine and make abstracts from any of their respective books and records and to discuss their
respective affairs, finances and accounts with their respective officers, employees and independent
public accountants (in the Borrower’s presence if an Event of Default does not then exist), all at
such reasonable times during business hours and as often as may reasonably be requested and so long
as no Event of Default exists, with reasonable prior notice. The Borrower shall be obligated to
reimburse the Administrative Agent and the Lenders for their costs and expenses incurred in
connection with the exercise of their rights under this Section only if such exercise occurs while
a Default or Event of Default exists.



Section 8.8 Use of Proceeds.




     The Borrower shall use the proceeds of Loans for general corporate purposes of the Borrower
and its Subsidiaries, including, without limitation, (a) the payment of dividends and fees and
expenses in connection with the Loans, (b) the payment of pre-development and development costs
incurred in connection with Properties owned by the Borrower or any Subsidiary; (c) to finance
acquisitions of Properties (through the purchase of assets or companies) not otherwise restricted
by this Agreement; and (d) to finance capital expenditures and the repayment of Indebtedness of the
Borrower and its Subsidiaries. The Borrower shall only use Letters of Credit for the same purposes
for which it may use the proceeds of Loans. The Borrower shall not, and shall not permit any other
Loan Party or any other Subsidiary to, use any part of such proceeds to purchase or carry, or to
reduce or retire or refinance any credit incurred to purchase or carry, any margin stock (within
the meaning of Regulation U of the Board of Governors of the Federal Reserve System) or to extend
credit to others for the purpose of purchasing or carrying any such margin stock.



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Section 8.9 Environmental Matters.




     The Borrower shall, and shall cause each other Loan Party and each other Subsidiary and their
respective Properties to, comply with all Environmental Laws the failure with which to comply could
reasonably be expected to have a Material Adverse Effect. If the Borrower, any other Loan Party or
any other Subsidiary shall (a) receive notice that any violation of any Environmental Law may have
been committed or is about to be committed by such Person or with respect to such Person’s
Property, (b) receive notice that any administrative or judicial complaint or order has been filed
or is about to be filed against any such Person or with respect to such Person’s Property alleging
violations of any Environmental Law or requiring any such Person to take any action in connection
with the release of Hazardous Materials or (c) receive any notice from a Governmental Authority or
private party alleging that any such Person may be liable or responsible for costs associated with
a response to or cleanup of a release of Hazardous Materials or any damages caused thereby, and
such notices, individually or in the aggregate, could reasonably be expected to have a Material
Adverse Effect, the Borrower shall provide the Administrative Agent with a copy of such notice
within ten (10) days after the receipt thereof by the Borrower or any of the Subsidiaries. The
Borrower and the Subsidiaries shall promptly take all actions necessary to prevent the imposition
of any Liens on any of their respective properties arising out of or related to any Environmental
Laws.



Section 8.10 Further Assurances.




     At the Borrower’s cost and expense and upon request of the Administrative Agent, the Borrower
shall, and shall cause each other Loan Party and each other Subsidiary to, duly execute and deliver
or cause to be duly executed and delivered, to the Administrative Agent such further instruments,
documents and certificates, and do and cause to be done such further acts that may be reasonably
necessary or advisable in the reasonable opinion of the Administrative Agent to carry out more
effectively the provisions and purposes of this Agreement and the other Loan Documents.



Section 8.11 Material Contracts.




     The Borrower shall, and shall cause each other Loan Party and each other Subsidiary to,
perform and comply with any and all material representations, warranties, covenants and agreements
expressed as binding upon any such Person under any Material Contract. The Borrower shall not, and
shall not permit any other Loan Party or any other Subsidiary to, do or knowingly permit to be done
anything to impair materially the value of any of the Material Contracts, provided that nothing in
this Agreement shall prohibit any Loan Party or Subsidiary from prepaying any Indebtedness.



Section 8.12 REIT Status.




     The Borrower shall maintain its status as a REIT.



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Section 8.13 Exchange Listing.




     The Borrower shall maintain at least one class of common stock of the Borrower having trading
privileges on the New York Stock Exchange or the American Stock Exchange or which is subject to
price quotations on The NASDAQ Stock Market’s National Market System.



Section 8.14 Guarantors.




     (a) Generally. Borrower shall cause any Subsidiary and Unconsolidated Affiliate that
is not already a Guarantor and to which any of the following conditions apply (each a “New
Guarantor”) to execute and deliver to Administrative Agent an Accession Agreement, together with
the other items required to be delivered under the subsection (b) below:




     (i) such Person (other than the Borrower) owns a Pool Asset; or




     (ii) such Subsidiary or Unconsolidated Affiliate Guarantees, or otherwise becomes
obligated in respect of, any Indebtedness of Borrower, any Unconsolidated Affiliate or any
Subsidiary.



     provided, however, no Subsidiary or Unconsolidated Affiliate shall be required
to become a Guarantor if such Subsidiary or Unconsolidated Affiliate cannot become a party to the
Guaranty without violating (A) express provisions of Indebtedness incurred by such Subsidiary, or
(B) in the case of Subsidiary obligated under any Secured Indebtedness, express provisions of the
Subsidiary’s or Unconsolidated Affiliates organizational documents. Any such Accession Agreement
and the other items required under subsection (b) below must be delivered to the Administrative
Agent no later than ten (10) Business Days following the date on which any of the above conditions
first applies to a New Guarantor. With respect to clauses (A) and (B) preceding, Borrower shall
deliver to Administrative Agent promptly upon request copies of such indebtedness or organizational
documentation or such other items as Administrative Agent may reasonably request to confirm the
possibility of such violation. For the avoidance of doubt, no Property owned by a Person obligated
to become a New Guarantor shall be deemed an Eligible Pool Asset nor included among the Pool Assets
unless and until such Person shall have executed and delivered to the Administrative Agent an
Accession Agreement in accordance with the terms hereof.



     (b) Required Deliveries. Each Accession Agreement delivered by a New Guarantor under
the immediately preceding subsection (a) shall be accompanied by all of the following items, each
in form and substance satisfactory to the Administrative Agent:




     (i) the articles of incorporation, articles of organization, certificate of limited
partnership or other comparable organizational instrument (if any) of such New Guarantor
certified as of a recent date (and with reference to documents filed and certified by the
applicable state Secretary of State) by the Secretary or Assistant Secretary (or other
individual performing similar functions) of such New Guarantor;




     (ii) a Certificate of Good Standing or certificate of similar meaning with respect to
such New Guarantor issued as of a recent date by the Secretary of State of the state of
organization of such New Guarantor and certificates of qualification to transact



Page 71









 







business or other comparable certificates issued by each Secretary of State (and any
state department of taxation, as applicable) of each state in which such New Guarantor owns
a Pool Asset, if any;




     (iii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or
other individual performing similar functions) of such New Guarantor with respect to each of
the officers of such New Guarantor authorized to execute and deliver the Loan Documents to
which such New Guarantor is a party;




     (iv) copies certified by the Secretary or Assistant Secretary of such New Guarantor (or
other individual performing similar functions) of all corporate, partnership, member or
other necessary action taken by such New Guarantor to authorize the execution, delivery and
performance of the Loan Documents to which it is a party and, upon Administrative Agent’s
request, the by-laws of such New Guarantor, if a corporation, the operating agreement, if a
limited liability company, the partnership agreement, if a limited or general partnership,
or other comparable document in the case of any other form of legal entity;




     (v) an opinion of counsel to the Borrower and such New Guarantor, addressed to the
Administrative Agent and Lenders, and regarding, among other things, the authority of such
New Guarantor to execute, deliver and perform the Guaranty, and such other matters as the
Administrative Agent or its counsel may request; and




     (vi) such other documents and instruments as the Administrative Agent may reasonably
request.



     (c) Release of Guarantor. Borrower may request in writing that Administrative Agent
release, and upon receipt of such request Administrative Agent shall release, a Guarantor from the
Guaranty so long as: (i) such Guarantor owns no Pool Asset, nor any direct or indirect equity
interest in any Subsidiary that does own a Pool Asset; (ii) such Guarantor is not otherwise
required to be a party to the Guaranty under this Section 8.14; and (iii) no Default or
Event of Default shall then be in existence or would occur as a result of such release.



     (d) Required Reporting. Concurrently with each delivery by Borrower of a Compliance
Certificate as and when required by Section 9.3, Borrower shall include therewith a
complete listing of all Subsidiaries which are Non-Guarantor Entities by operation of the proviso
in Section 8.14(a), along with a notation for each such Subsidiary as to the applicable
exception (set forth in the final paragraph of subsection (a) above) which permits such Subsidiary
to remain a Non-Guarantor Entity. For the avoidance of doubt, no Property owned by a Person
obligated to become a New Guarantor shall be deemed an Eligible Pool Asset nor included among the
Pool Assets unless and until such Person shall have executed and delivered to the Administrative
Agent an Accession Agreement in accordance with the terms of the Credit Agreement.



ARTICLE IX INFORMATION




     For so long as this Agreement is in effect, unless the Requisite Lenders (or, if required
pursuant to Section 13.7, all of the Lenders) shall otherwise consent in the manner set
forth in



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Section 13.7, the Borrower shall furnish to Administrative Agent on behalf of the
Lenders (with multiple copies, one for each Lender) at its Lending Office:




Section 9.1 Quarterly Financial Statements.




     If not publicly available free of charge from the Securities and Exchange Commission on the
internet at http://www.sec.gov within forty-five (45) days after the close of each fiscal quarter
of Borrower, or if an extension has been granted by the Securities and Exchange Commission for the
filing by the Borrower of its quarterly report on Form 10-Q, then by the earlier of the date such
Form 10-Q is actually filed and the last day of such extended time period, but in no event later
than sixty (60) days after the end of such quarterly period for which such Form 10-Q is to be
filed, the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as at the end
of such period and the related unaudited consolidated statements of operations, comprehensive
income, stockholders’ equity and cash flows of the Borrower and its Subsidiaries for such period,
setting forth in each case in comparative form the figures as of the end of and for the
corresponding periods of the previous fiscal year, all of which shall be certified by the chief
financial officer of the Borrower, in his or her opinion, to present fairly, in accordance with
GAAP, the consolidated financial position of the Borrower and its Subsidiaries as at the date
thereof and the results of operations for such period (subject to normal year-end audit
adjustments).



Section 9.2 Year-End Statements.




     If not publicly available free of charge from the Securities and Exchange Commission on the
internet at http://www.sec.gov within ninety (90) days after the end of each fiscal year of the
Borrower, or if an extension has been granted by the Securities and Exchange Commission for the
filing by the Borrower of its quarterly report on Form 10-K, then by the earlier of the date such
Form 10-K is actually filed and the last day of such extended time period, but in no event later
than one hundred twenty (120) days after the end of such fiscal year for which such Form 10-K is to
be filed, the audited consolidated balance sheet of the Borrower and its Subsidiaries as at the end
of such fiscal year and the related audited consolidated statements of operations, comprehensive
income, stockholders’ equity and cash flows of the Borrower and its Subsidiaries for such fiscal
year, setting forth in comparative form the figures as at the end of and for the previous fiscal
year, all of which shall be certified by (a) the chief financial officer of the Borrower, in his or
her opinion, to present fairly, in accordance with GAAP, the financial position of the Borrower and
its Subsidiaries as at the date thereof and the result of operations for such period and (b) Ernst
& Young LLP or any other independent certified public accountants of recognized national standing
acceptable to the Requisite Lenders, whose certificate shall be unqualified and in scope and
substance satisfactory to the Requisite Lenders and who shall have authorized the Borrower to
deliver such financial statements and certification thereof to the Administrative Agent and the
Lenders pursuant to this Agreement.



Section 9.3 Compliance Certificate.




     On or prior to the time the financial statements are required to be provided pursuant to the
immediately preceding Sections 9.1 and 9.2, a certificate substantially in
the form of Exhibit I (a “Compliance Certificate”) executed on behalf of the Borrower by
the chief financial officer of



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the Borrower (a) setting forth as of the end of such quarterly accounting period or fiscal
year, as the case may be, the calculations required to establish whether the Borrower was in
compliance with the covenants contained in Section 10.1; and (b) stating that no Default or
Event of Default exists, or, if such is not the case, specifying such Default or Event of Default
and its nature, when it occurred and, whether it is continuing and the steps being taken by the
Borrower with respect to such event, condition or failure.



Section 9.4 Other Information.




     (a) As soon as available and in any event within fifty (50) days after the end of each fiscal
quarter of the Borrower or as otherwise required pursuant to Article IV, a Pool Certificate
setting forth the information to be contained therein, including without limitation, a calculation
of Maximum Availability, as of the last day of such fiscal quarter and actual quarterly and
year-to-date Net Operating Income and leasing/occupancy status reports and certifying that each
Property in the Pool remains an Eligible Pool Asset, as of the last day of such fiscal quarter and
that the aggregate outstanding principal amount of all outstanding Loans, together with the
aggregate amount of all Letter of Credit Liabilities, are less than or equal to the Maximum
Availability at such time.



     (b) Promptly upon receipt thereof, copies of all reports, if any, submitted to the Borrower or
its Board of Directors by its independent public accountants including, without limitation, any
management report unless such report is prepared for the Borrower’s internal use only;



     (c) Within ten (10) Business Days of request, unless such report is publicly available, free
of charge from the Securities and Exchange Commission on the internet at http://www.sec.gov, copies
of all registration statements (excluding the exhibits thereto and any registration statements on
Form S-8 or its equivalent), reports on Forms 10-K, 10-Q and 8-K (or their equivalents) and all
other periodic reports which the Borrower, any Subsidiary or any other Loan Party shall file with
the Securities and Exchange Commission (or any Governmental Authority substituted therefor) or any
national securities exchange, provided that Borrower shall provide Administrative Agent with
written notice of any such filing (other than regularly filed 10-Ks or 10-Qs) within ten (10)
Business Days following such filing;



     (d) Promptly upon the issuance thereof copies of all press releases issued by the Borrower,
any Subsidiary or any other Loan Party;



     (e) No later than seventy-five (75) days after the end of each fiscal year of the Borrower
ending prior to the Termination Date, projected operating statements of the Borrower and its
Subsidiaries on a consolidated basis for each quarter of the next succeeding two (2) fiscal years,
all itemized in reasonable detail. The foregoing shall be accompanied by pro forma calculations,
together with detailed assumptions, required to establish whether or not the Borrower, and when
appropriate its consolidated Subsidiaries, will be in compliance with the covenants contained in
Section 10.1 and at the end of each fiscal quarter of the next succeeding two (2) fiscal
years;



Page 74









 





     (f) No later than thirty (30) days following Administrative Agent’s request (which 30-day
period shall expire in no event earlier than forty-five (45) days after the end of each fiscal year
of the Borrower), a property budget for each Pool Asset for the coming fiscal year of the Borrower;



     (g) If and when any member of the ERISA Group (i) gives or is required to give notice to the
PBGC of any “reportable event” (as defined in Section 4043 of ERISA) with respect to any Plan which
might constitute grounds for a termination of such Plan under Title IV of ERISA, or knows that the
plan administrator of any Plan has given or is required to give notice of any such reportable
event, a copy of the notice of such reportable event given or required to be given to the PBGC;
(ii) receives notice of complete or partial withdrawal liability under Title IV of ERISA or notice
that any Multiemployer Plan is in reorganization, is insolvent or has been terminated, a copy of
such notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent to terminate,
impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or appoint a
trustee to administer any Plan, a copy of such notice; (iv) applies for a waiver of the minimum
funding standard under Section 412 of the Internal Revenue Code, a copy of such application; (v)
gives notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of such notice
and other information filed with the PBGC; (vi) gives notice of withdrawal from any Plan pursuant
to Section 4063 of ERISA, a copy of such notice; or (vii) fails to make any payment or contribution
to any Plan or Multiemployer Plan or in respect of any Benefit Arrangement or makes any amendment
to any Plan or Benefit Arrangement which has resulted or could result in the imposition of a Lien
or the posting of a bond or other security, a certificate of the controller of the Borrower setting
forth details as to such occurrence and action, if any, which the Borrower or applicable member of
the ERISA Group is required or proposes to take;



     (h) To the extent the Borrower or any Subsidiary is aware of the same, prompt notice of the
commencement of any proceeding or investigation by or before any Governmental Authority and any
action or proceeding in any court or other tribunal or before any arbitrator against or in any
other way relating adversely to, or adversely affecting, the Borrower or any Subsidiary or any of
their respective properties, assets or businesses which, if determined or resolved adversely to
such Person, would reasonably be expected to have a Material Adverse Effect, and prompt notice of
the receipt of notice that any United States income tax returns of the Borrower or any of its
Subsidiaries are being audited;



     (i) A copy of any amendment to the articles of incorporation, bylaws, partnership agreement or
other similar organizational documents of the Borrower or any other Loan Party within five (5)
Business Days of the effectiveness thereof;



     (j) Prompt notice (i) if any of Chaim Katzman, Doron Valero or Howard Sipzner ceases for any
reason to be principally involved in the senior management of the Borrower and (ii) of any change
in the business, assets, liabilities, financial condition or results of operations of the Borrower,
any Subsidiary or any other Loan Party which has had or could have Material Adverse Effect;



     (k) Prompt notice of the occurrence of any Default or Event of Default or any event which
constitutes or which with the passage of time, the giving of notice, or both, would



Page 75









 







constitute a default or event of default by the Borrower, any Subsidiary or any other Loan
Party under any Material Contract to which any such Person is a party or by which any such Person
or any of its respective properties may be bound;



     (l) Promptly upon entering into any Material Contract after the Agreement Date, notice of such
Material Contract (along with a brief description of its terms) and, upon Administrative Agent’s
request (provided dissemination is not prohibited by confidentiality provisions), a copy of such
Material Contract to Administrative Agent;



     (m) Prompt notice of (i) any order, judgment or decree in excess of $1,500,000 having been
entered against the Borrower, any Subsidiary or any other Loan Party or any of their respective
properties or assets, (ii) the institution of, or threat of, any material action, suit, proceeding,
governmental investigation or arbitration against or affecting Borrower not listed on Schedule
7.1(i) hereto, or (iii) any material development in any action, suit, proceeding, governmental
investigation or arbitration already disclosed, which, in the case of matters referenced in
subsections (ii) and (iii), has, or is reasonably likely to have, a Material Adverse Effect,
together with such other information as may be reasonably available to Borrower to enable
Administrative Agent, the Lenders and their counsel to evaluate such matters;



     (n) Prompt notice of (i) any written notification of an alleged violation by the Borrower or
any other Loan Party of any law or regulation, the violation of which could result in a Material
Adverse Effect, or (ii) any inquiry shall have been received by the Borrower or any other Loan
Party from any Governmental Authority which could result in a Material Adverse Effect;



     (o) Without limiting Borrower’s obligations to remain in compliance with the covenants of
Article X below, promptly upon the request of the Administrative Agent, and in any event
not less frequently than once per calendar quarter concurrently with Borrower’s delivery of a
Compliance Certificate, evidence of the Borrower’s calculation of the Ownership Share with respect
to a Subsidiary or an Unconsolidated Affiliate with respect to which there has been a change in
Borrower’s calculation of the Ownership Share with respect to such Subsidiary or Unconsolidated
Affiliate, such evidence to be in form and detail satisfactory to the Administrative Agent;



     (p) From time to time and promptly upon each request, such data, certificates, reports,
schedules of major tenants, statements, opinions of counsel, documents or further information
regarding any Property or the business, assets, liabilities, financial condition, results of
operations or business prospects of the Borrower or any of its Subsidiaries as the Administrative
Agent or any Lender may reasonably request; and



     (q) Promptly upon request, copies certified by the Secretary or Assistant Secretary (or other
individual performing similar functions) of each of the Loan Parties (other than Borrower, for
which the following information shall be provided prior to the Effective Date) of (x) the by-laws
of such Person, if a corporation, the operating agreement, if a limited liability company, the
partnership agreement, if a limited or general partnership, or other comparable document in the
case of any other form of legal entity and (y) all corporate, partnership, member or other



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necessary action taken by such Person to authorize the execution, delivery and performance of
the Loan Documents to which it is a party.



ARTICLE X NEGATIVE COVENANTS




     For so long as this Agreement is in effect, unless the Requisite Lenders (or, if required
pursuant to Section 13.7, all of the Lenders) shall otherwise consent in the manner set
forth in Section 13.7, the Borrower shall comply with the following covenants (which, to
the extent tested with respect to a specific fiscal quarter, shall be tested as of the last
Business Day of such fiscal quarter):



Section 10.1 Financial Covenants.




     (a) Minimum Tangible Net Worth. The Borrower shall not permit its Tangible Net Worth
determined on a consolidated basis at the end of any fiscal quarter to be less than (i)
$717,647,000 plus (ii) ninety percent (90%) of the Net Proceeds of all Equity Issuances
effected at any time after the Effective Date by the Borrower or any of its Subsidiaries to any
Person other than the Borrower or any of its Subsidiaries.



     (b) Ratio of Total Liabilities to Gross Asset Value. The Borrower shall not permit
the ratio of (i) Total Liabilities of the Borrower and its Subsidiaries determined on a
consolidated basis to (ii) Gross Asset Value of the Borrower and its Subsidiaries determined on a
consolidated basis, to exceed 0.60 to 1.00 at any time.



     (c) Ratio of Secured Indebtedness to Gross Asset Value. The Borrower shall not permit
the ratio of (i) Secured Indebtedness of the Borrower and its Subsidiaries determined on a
consolidated basis to (ii) Gross Asset Value to exceed 0.40 to 1.00 at any time.



     (d) Ratio of EBITDA to Interest Expense. The Borrower shall not permit the ratio of
(i) EBITDA of the Borrower and its Subsidiaries determined on a consolidated basis for the fiscal
quarter most recently ended to (ii) Interest Expense of the Borrower and its Subsidiaries
determined on a consolidated basis for such period, to be less than 1.90 to 1.00 for such period.



     (e) Ratio of EBITDA to Fixed Charges. The Borrower shall not permit the ratio of (i)
EBITDA of the Borrower and its Subsidiaries determined on a consolidated basis for the fiscal
quarter most recently ended to (ii) Fixed Charges of the Borrower and its Subsidiaries determined
on a consolidated basis for such period, to be less than 1.65 to 1.00 for such period.



     (f) Ratio of Unencumbered Net Operating Income to Unsecured Interest Expense. The
Borrower shall not permit the ratio of (i) Unencumbered Net Operating Income of the Borrower and
its Subsidiaries determined on a consolidated basis for the fiscal quarter most recently ending to
(ii) Unsecured Interest Expense of the Borrower and its Subsidiaries determined on a consolidated
basis for such period, to be less than 2.00 to 1.00.



     (g) Permitted Investments. The Borrower shall not, and shall not permit any
Subsidiary to, make an Investment in or otherwise own, the following items which would cause the
aggregate value of such holdings of such Persons to exceed the following percentages of the
Borrower’s Gross Asset Value:



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     (i) unimproved and undeveloped raw land (which shall not include any such land acquired
less than eighteen (18) months previously and which is to become a Development Property
within eighteen (18) months of its acquisition), such that the aggregate book value of all
such land exceeds ten percent (10%) of the Borrower’s Gross Asset Value;




     (ii) (A) common stock, Preferred Stock, other capital stock, beneficial interest in
trust, membership interest in limited liability companies and other Equity Interests in
Persons (other than consolidated Subsidiaries and Unconsolidated Affiliates) and/or (B)
Marketable Securities of Borrower, such that the aggregate book value of such interests
exceeds ten percent (10%) of the Borrower’s Gross Asset Value;




     (iii) Investments in Unconsolidated Affiliates, such that the aggregate value of such
Investments in Unconsolidated Affiliates, exceeds ten percent (10%) of the Borrower’s Gross
Asset Value. For purposes of this clause (iii), the “value” of any such Investment in an
Unconsolidated Affiliate shall equal (1) with respect to any of such Unconsolidated
Affiliate’s CIP, the Borrower’s Ownership Share of such CIP as of the date of determination
and (2) with respect to any of such Unconsolidated Affiliate’s Properties which have been
completed, the Borrower’s Ownership Share of the Operating Property Value for each Property
of such Unconsolidated Affiliate;




     (iv) Mortgages in favor of the Borrower or any Subsidiary of the Borrower, such
that the aggregate book value of Indebtedness secured by such Mortgages exceeds five percent
(5%) of the Borrower’s Gross Asset Value; and




     (v) the aggregate amount of the Total Budgeted Costs for Development Properties plus
Major Redevelopment Properties in which the Borrower either has a direct or indirect
ownership interest shall not exceed fifteen percent (15%) of the Borrower’s Gross Asset
Value. If a Development Property or Redevelopment Property is owned by an Unconsolidated
Affiliate of Borrower or any Subsidiary, then the greater of (1) the
product of (A) the Borrower’s or such Subsidiary’s Ownership Share in such Unconsolidated
Affiliate and (B) the amount of the Total Budgeted Costs for such Development Property or
Redevelopment Property or (2) the recourse obligations of the Borrower or such Subsidiary
(including, without limitation, as a general partner of such Unconsolidated Affiliate)
relating to the Indebtedness of such Unconsolidated Affiliate, shall be used in calculating
such investment limitation.


provided, further, that, in addition to the foregoing limitations, the aggregate
value of the Investments and other items subject to the limitations in the preceding clauses (i)
through (v) shall not exceed twenty percent (20%) of the Borrower’s Gross Asset Value.




     (h) Total Assets of Non-Wholly Owned Subsidiaries. Borrower shall not permit
aggregate Gross Asset Value, determined with respect to all Subsidiaries that are not Wholly Owned
Subsidiaries to exceed fifteen percent (15%) of the Gross Asset Value.



     (i) Dividends and Other Restricted Payments. The Borrower and its Subsidiaries (other
than Wholly Owned Subsidiaries) shall not, directly or indirectly declare or make, or incur



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any liability to make, any Restricted Payments, except that: (i) the Borrower may make cash
distributions to its shareholders in an aggregate amount not to exceed ninety-five percent (95%) of
Funds From Operations as of the end of each fiscal quarter for the four fiscal quarter period then
ending; provided however, that Borrower in all events shall be entitled to make distributions to
its shareholders in such amounts and at such times as shall be necessary or appropriate to enable
the Borrower to avoid liability for any tax pursuant to Section 857(b) or Section 4981 of the
Internal Revenue Code (including cash distributions) of capital gains resulting from gains from
asset sales to the extent necessary to avoid payment of taxes on such asset sales; (ii)
Subsidiaries may make Restricted Payments to the Borrower or any other Subsidiary; (iii)
Subsidiaries may make Restricted Payments to the extent such Restricted Payments are required by
the terms of the governing documents (i.e., entity documents or joint venture agreements) of such
Subsidiaries; and (iv) Dim Vastgoed (if it becomes a Subsidiary) may make Restricted Payments to
the extent consistent with its past corporate practice. Notwithstanding the foregoing, but subject
to the following sentence, if a Default or Event of Default exists, the Borrower may only declare
or make cash distributions to its shareholders in an aggregate amount not to exceed the minimum
amount necessary for the Borrower to remain in compliance with Section 8.12. If an Event
of Default specified in subsection (a), (e) or (f) of Section 11.1 shall have occurred and
be continuing, or if as a result of the occurrence of any other Event of Default the Obligations
have been accelerated, the Borrower shall not, and shall not permit any Subsidiary to, make any
Restricted Payments to any Person whatsoever other than to the Borrower or any Subsidiary.



     (j) Asset Value of Non-Guarantor Entities. At no time shall the aggregate Asset Value
of the Non-Guarantor Entities obligated in respect of any Recourse Indebtedness exceed ten percent
(10%) of the Gross Asset Value.



Section 10.2 Negative Pledge.




     The Borrower shall not, and shall not permit any other Loan Party to, create, assume or suffer
to exist any Lien on any Pool Asset or on any direct or indirect ownership interest in any Pool
Asset, except for Permitted Liens.



Section 10.3 Restrictions on Intercompany Transfers.




     The Borrower shall not, and shall not permit any other Loan Party to, create or otherwise
cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind
on the ability of any Loan Party to: (i) pay dividends or make any other distribution on any of
such Loan Party’s capital stock or other Equity Interests owned by a Loan Party; (ii) pay any
Indebtedness owed to a Loan Party; (iii) make loans or advances to a Loan Party; or (iv) transfer
any of its property or assets to a Loan Party.



Section 10.4 Merger, Consolidation, Sales of Assets and Other Arrangements.




     The Borrower shall not, and shall not permit any other Loan Party or any other Subsidiary to,
(a) enter into any transaction of merger or consolidation; (b) liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution); (c) convey, sell, lease, sublease, transfer or
otherwise dispose of, in one transaction or a series of transactions, all or substantially all of
its



Page 79









 







business or assets, or the capital stock of or other Equity Interests in any of its
Subsidiaries, whether now owned or hereafter acquired; or (d) acquire a Substantial Amount of the
assets of, or make an Investment of a Substantial Amount in, any other Person; provided,
however, that:




     (i) any Subsidiary may merge with a Loan Party so long as the survivor is a Loan Party;




     (ii) any Subsidiary may sell, transfer or dispose of its assets to a Loan Party;




     (iii) any Subsidiary that is not (and is not required to be) a Loan Party may convey,
sell, transfer or otherwise dispose of, in one transaction or a series of transactions, all
or any substantial part of its business or assets, or the capital stock of or other Equity
Interests in any of its Subsidiaries, and immediately thereafter liquidate, provided that
immediately prior to any such conveyance, sale, transfer, disposition or liquidation and
immediately thereafter and after giving effect thereto, no Default or Event of Default is or
would be in existence;




     (iv) any Loan Party and any other Subsidiary may, directly or indirectly, (A) acquire
(whether by purchase, acquisition of Equity Interests of a Person, or as a result of a
merger or consolidation) assets of, or make an Investment in, any other Person so long as
the amount of such acquisition or Investment does not equal or exceed a Substantial Amount
and (B) sell, lease or otherwise transfer, whether by one or a series of transactions,
assets (including capital stock or other securities of Subsidiaries) which do not equal or
exceed a Substantial Amount to any other Person and, in the event that the assets referenced
in either subsection (A) or (B) above do in fact equal or exceed a Substantial Amount, the
applicable Loan Party or other Subsidiary may proceed with such acquisition or transfer, so
long as, in each case, (1) the Borrower shall have given the Administrative Agent and the
Lenders at least thirty (30) days prior written notice of such consolidation, merger,
acquisition, Investment, sale, lease or other transfer; (2) immediately prior thereto, and
immediately thereafter and after giving effect thereto, no Default or Event of Default is or
would be in existence; (3) in the case of a consolidation or merger involving the Borrower
or any other Loan Party, such Person shall be the survivor thereof and (4) at the time the
Borrower gives notice pursuant to clause (1) of this subsection, the Borrower shall have
delivered to the Administrative Agent and the Lenders a Compliance Certificate, calculated
on a pro forma basis, evidencing the continued compliance by the Loan Parties with the terms
and conditions of this Agreement and the other Loan Documents, including without limitation,
the financial covenants contained in Section 10.1, after giving effect to such
consolidation, merger, acquisition, Investment, sale, lease or other transfer; and




     (v) the Borrower and the other Loan Parties may lease and sublease its respective
assets, as lessor or sublessor (as the case may be), in the ordinary course of their
business.


Further, no Loan Party, nor any other Subsidiary, shall enter into any sale-leaseback transactions
or other transaction by which such Person shall remain liable as lessee (or the economic equivalent
thereof) of any real or personal property that it has sold or leased to another Person.




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Section 10.5 Plans.




     The Borrower shall not, and shall not permit any other Loan Party or any other Subsidiary to,
permit any of its respective assets to become or be deemed to be “plan assets” within the meaning
of ERISA, the Internal Revenue Code and the respective regulations promulgated thereunder.



Section 10.6 Fiscal Year.




     The Borrower shall not change its fiscal year from that in effect as of the Agreement Date.



Section 10.7 Modifications of Organizational Documents and Material Contracts.




     The Borrower shall not, and shall not permit any other Loan Party to, amend, supplement,
restate or otherwise modify its articles of incorporation, by-laws or other organizational
documents without the prior written consent of the Requisite Lenders unless such amendment,
supplement, restatement or other modification (a) is in the case of the Borrower, to increase the
amount of Equity Interests authorized to be issued by the Borrower, or to authorize the issuance of
a class of Preferred Stock by the Borrower, (b) is required under or as a result of the Internal
Revenue Code or other Applicable Law, (c) is required to maintain the Borrower’s status as a REIT
or (d) could not reasonably be expected to have a Material Adverse Effect (and in all events,
Borrower, in accordance with Section 9.4(i), shall provide Administrative Agent with fully
executed and filed, if applicable, copies of any of the foregoing). The Borrower shall not permit
Subsidiary that is not a Loan Party to amend, supplement, restate or otherwise modify its articles
of incorporation, by-laws or other organizational documents if such amendment, supplement,
restatement or other modification could reasonably be expected to have a Material Adverse Effect.
The Borrower shall not enter into, and shall not permit any Subsidiary or other Loan Party to enter
into, any amendment, termination or modification to any Material Contract that could reasonably be
expected to have a Material Adverse Effect or default in the performance of any obligations of the
Borrower or any Subsidiary in any Material Contract.



Section 10.8 Transactions with Affiliates.




     The Borrower shall not, and shall not permit any other Loan Party to, permit to exist or enter
into, any transaction (including the purchase, sale, lease or exchange of any property or the
rendering of any service) with any Affiliate of the Borrower or with any director, officer or
employee of any Loan Party, except (i) transactions in the course of and pursuant to the reasonable
requirements of the business of the Borrower and upon fair and reasonable terms that are no less
favorable to the Borrower than would be obtained in a comparable arm’s length transaction with a
Person that is not an Affiliate, and (ii) those transactions listed on Schedule 10.8
attached hereto. In limitation of the foregoing, neither Borrower nor any other Loan Parties or
Subsidiaries shall (a) make loans or advances to any director, officer or employee of any Loan
Party or (b) guaranty loans or advances to any director, officer or employee of any Loan Party, in
either case or cumulatively in excess of $10,000,000 in the aggregate. The Borrower and each
Subsidiary may, however, guaranty Indebtedness of other Loan Parties.



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ARTICLE XI DEFAULT




Section 11.1 Events of Default.




     Each of the following shall constitute an Event of Default, whatever the reason for such event
and whether it shall be voluntary or involuntary or be effected by operation of Applicable Law or
pursuant to any judgment or order of any Governmental Authority:



     (a) Default in Payment. The Borrower or any other Loan Party shall fail to pay (i)
any amount due on the Termination Date, (ii) any principal when due (whether upon demand, at
maturity, by reason of acceleration or otherwise), or (iii) any other amount due (whether upon
demand, at maturity, by reason of acceleration or otherwise) under this Agreement or any other Loan
Document within three (3) Business Days of the same being due.



     (b) Default in Performance.




     (i) The Borrower shall fail to perform or observe any term, covenant, condition or
agreement on its part to be performed or observed and contained in Sections
9.1, 9.2, 9.3 or Article X.; or




     (ii) The Borrower or any other Loan Party shall fail to perform or observe any term,
covenant, condition or agreement contained in this Agreement or any other Loan Document to
which it is a party and not otherwise mentioned in this Section and such failure shall
continue for a period of thirty (30) calendar days after the earlier of (x) the date upon
which any Loan Party obtains knowledge of such failure or (y) the date upon which the
Borrower has received written notice of such failure from the Administrative Agent;



     (c) Misrepresentations. Any representation or warranty made or deemed made by or on
behalf of the Borrower or any other Loan Party in this Agreement, in any other Loan Document, or in
any required certificate delivered by or on behalf of the Borrower or any other Loan Party, or any
amendment hereto or thereto, shall at any time prove to have been incorrect or misleading in any
material respect when furnished or made or deemed made.



     (d) Indebtedness Cross-Default.




     (i) The Borrower, any other Loan Party, or any other Subsidiary shall fail to pay when
due and payable the principal of, or interest on, (x) any Recourse Indebtedness (other than
the Loans) having an aggregate outstanding principal amount of $5,000,000 or more, or (y)
any Nonrecourse Indebtedness having an aggregate outstanding principal amount of $35,000,000
or more, and in any such case such failure shall continue beyond any applicable notice and
cure periods; or




     (ii) The maturity of any (x) any Recourse Indebtedness (other than the Loans) of the
Borrower, any other Loan Party or any other Subsidiary having an aggregate outstanding
principal amount of $5,000,000 or more, or (y) any Nonrecourse Indebtedness of the Borrower,
any other Loan Party or any other Subsidiary having an aggregate outstanding principal
amount of $35,000,000 or more shall have (1) been



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accelerated in accordance with the provisions of any indenture, contract or instrument
evidencing, providing for the creation of or otherwise concerning such Indebtedness or (2)
been required to be prepaid or repurchased prior to the stated maturity thereof; or




     (iii) Any other event shall have occurred and be continuing which, with or without the
passage of time, the giving of notice, or both, would permit any holder or holders of (x)
any Recourse Indebtedness (other than the Loans) of the Borrower, any other Loan Party or
any other Subsidiary having an aggregate outstanding principal amount of $5,000,000 or more,
or (y) any Nonrecourse Indebtedness of the Borrower, any other Loan Party or any other
Subsidiary having an aggregate outstanding principal amount of $35,000,000 or more, any
trustee or agent acting on behalf of such holder or holders or any other Person, to
accelerate the maturity of such Indebtedness or require any such Indebtedness to be prepaid
or repurchased prior to its stated maturity. Notwithstanding the foregoing, the provisions
of this subclause (iii) shall not apply to the Indebtedness listed on Schedule
11.1(d) solely as a result of known non-monetary defaults previously disclosed in
Borrower’s publicly filed 2005 financial statements, unless and until the applicable
holder(s) (or any trustee or agent acting on behalf of such holder(s)) of such Indebtedness
accelerate the maturity of such Indebtedness or require any such Indebtedness to be prepaid
or repurchased prior to its stated maturity as a result of such known defaults.



     (e) Voluntary Bankruptcy Proceeding. The Borrower or any other Loan Party or any
Person who has granted to the Administrative Agent a Lien under any Security Document shall: (i)
commence a voluntary case under the Bankruptcy Code of 1978, as amended or other federal bankruptcy
laws (as now or hereafter in effect); (ii) file a petition seeking to take advantage of any other
Applicable Laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or adjustment of debts; (iii) consent to, or fail to contest in a timely
and appropriate manner, any petition filed against it in an involuntary case under such bankruptcy
laws or other Applicable Laws or consent to any proceeding or action described in the immediately
following subsection; (iv) apply for or consent to, or fail to contest in a timely and appropriate
manner, the appointment of, or the taking of possession by, a receiver, custodian, trustee, or
liquidator of itself or of a substantial part of its property, domestic or foreign; (v) be unable
to or admit in writing its inability to pay its debts as they become due; (vi) make a general
assignment for the benefit of creditors; (vii) make a conveyance fraudulent as to creditors under
any Applicable Law; or (viii) take any corporate or partnership action for the purpose of effecting
any of the foregoing.



     (f) Involuntary Bankruptcy Proceeding. A case or other proceeding shall be commenced
against the Borrower or any other Loan Party or any Person who has granted to the Administrative
Agent a Lien under any Security Document in any court of competent jurisdiction seeking: (i)
relief under the Bankruptcy Code of 1978, as amended or other federal bankruptcy laws (as now or
hereafter in effect) or under any other Applicable Laws, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment of debts; or (ii)
the appointment of a trustee, receiver, custodian, liquidator or the like of such Person, or of all
or any substantial part of the assets, domestic or foreign, of such Person, and in the case of
either clause (i) or (ii) such case or proceeding shall continue undismissed or unstayed for a
period of sixty (60) consecutive calendar days, or an order granting the relief



Page 83









 







requested in such case or proceeding (including, but not limited to, an order for relief under
such Bankruptcy Code or such other federal bankruptcy laws) shall be entered.



     (g) Revocation of Loan Documents. The Borrower or any other Loan Party shall (or
shall attempt to) disavow, revoke or terminate any Loan Document to which it is a party or shall
otherwise challenge or contest in any action, suit or proceeding in any court or before any
Governmental Authority the validity or enforceability of any Loan Document.



     (h) Judgment. A judgment or order for the payment of money shall be entered against
the Borrower or any other Loan Party, by any court or other tribunal and (i) such judgment or order
shall continue for a period of thirty (30) days without being paid, stayed or dismissed through
appropriate appellate proceedings and (ii) either (A) the amount for which insurance has not been
acknowledged in writing by the applicable insurance carrier (or the amount as to which the insurer
has denied liability) exceeds, individually or together with all other such judgments or orders
entered against the Loan Parties, $1,500,000 or (B) such judgment or order could reasonably be
expected to have a Material Adverse Effect.



     (i) Attachment. A warrant, writ of attachment, execution or similar process shall be
issued against any property of the Borrower or any other Loan Party, which exceeds, individually or
together with all other such warrants, writs, executions and processes, $1,500,000 in amount and
such warrant, writ, execution or process shall not be paid, discharged, vacated, stayed or bonded
for a period of thirty (30) days; provided, however, that if a bond has been issued
in favor of the claimant or other Person obtaining such warrant, writ, execution or process, the
issuer of such bond shall execute a waiver or subordination agreement in form and substance
satisfactory to the Administrative Agent pursuant to which the issuer of such bond subordinates its
right of reimbursement, contribution or subrogation to the Obligations and waives or subordinates
any Lien it may have on the assets of any Loan Party.



     (j) ERISA. Any member of the ERISA Group shall fail to pay when due an amount or
amounts aggregating in excess of $1,000,000 which it shall have become liable to pay under Title IV
of ERISA; or notice of intent to terminate a Material Plan shall be filed under Title IV of ERISA
by any member of the ERISA Group, any plan administrator or any combination of the foregoing; or
the PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability
(other than for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be
appointed to administer any Material Plan; or a condition shall exist by reason of which the PBGC
would be entitled to obtain a decree adjudicating that any Material Plan must be terminated; or
there shall occur a complete or partial withdrawal from, or a default, within the meaning of
Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause one
or more members of the ERISA Group to incur a current payment obligation in excess of $1,000,000.



     (k) Loan Documents. An Event of Default (as defined therein) shall occur under any of
the other Loan Documents;



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     (l) Change of Control/Change in Management.




     (i) (A) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) other than Chaim
Katzman and/or his Affiliates, successors, estate beneficiaries or assigns, is or becomes
the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except
that a Person will be deemed to have “beneficial ownership” of all securities that such
Person has the right to acquire, whether such right is exercisable immediately or only after
the passage of time ), directly or indirectly, of greater than forty percent (40%) of the
total voting power of the then outstanding voting stock of the Borrower or (B) during any
period of twelve (12) consecutive months ending after the Agreement Date, individuals who at
the beginning of any such 12-month period constituted the Board of Directors of the Borrower
(together with any new directors whose election by such Board or whose nomination for
election by the shareholders of the Borrower was approved by a vote of a majority of the
directors then still in office who were either directors at the beginning of such period or
whose election or nomination for election was previously so approved) cease for any reason
(other than death or mental or physical disability) to constitute a majority of the Board of
Directors of the Borrower then in office; or




     (ii) If more than one of Chaim Katzman, Doron Valero and Howard Sipzner cease for any
reason to be principally involved in the senior management of the Borrower, and (in the case
of vacancies caused by resignation, death or incapacity) Borrower shall have failed to
replace the resulting vacancies in senior management with individuals reasonably acceptable
to the Requisite Lenders within a period of one-hundred eighty (180) days.



     (m) Damage; Strike; Casualty. Any material damage to, or loss or destruction of, any
Pool Asset, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation,
act of God or public enemy, or other casualty which causes, for more than thirty (30) consecutive
days beyond the coverage period of any applicable business interruption insurance, the cessation or
substantial curtailment of revenue producing activities of the Borrower or its Subsidiaries taken
as a whole and only if any such event or circumstance could reasonably be expected to have a
Material Adverse Effect.



Section 11.2 Remedies Upon Event of Default.




     Upon the occurrence of an Event of Default the following provisions shall apply:



     (a) Acceleration; Termination of Facilities.




     (i) Automatic. Upon the occurrence of an Event of Default specified in
Sections 11.1(e) or 11.1(f), (A)(i) the principal of, and all
accrued interest on, the Loans and the Notes at the time outstanding, (ii) an amount equal
to the Stated Amount of all Letters of Credit outstanding as of the date of the occurrence
of such Event of Default and (iii) all of the other Obligations of the Borrower, including,
but not limited to, the other amounts owed to the Lenders and the Administrative Agent under
this Agreement,



Page 85









 







the Notes or any of the other Loan Documents shall become immediately and automatically
due and payable by the Borrower without presentment, demand, protest, or other notice of any
kind, all of which are expressly waived by the Borrower and (B) the Commitments and
the obligation of the Lenders to make Loans hereunder, and the obligation of the
Administrative Agent to issue Letters of Credit hereunder, shall immediately and
automatically terminate.




     (ii) Optional. If any other Event of Default shall exist, the Administrative
Agent shall, at the direction of the Requisite Lenders: (A) declare (1) the principal of,
and accrued interest on, the Loans and the Notes at the time outstanding, (2) an amount
equal to the Stated Amount of all Letters of Credit outstanding as of the date of the
occurrence of such Event of Default and (3) all of the other Obligations, including, but not
limited to, the other amounts owed to the Lenders and the Administrative Agent under this
Agreement, the Notes or any of the other Loan Documents to be forthwith due and payable,
whereupon the same shall immediately become due and payable without presentment, demand,
protest or other notice of any kind, all of which are expressly waived by the Borrower and
(B) terminate the Commitments and the obligation of the Lenders to make Loans hereunder and
the obligation of the Administrative Agent to issue Letters of Credit hereunder.




     (iii) Rescission of Acceleration by Requisite Lenders. If at any time after
acceleration of the maturity of the Loans and the other Obligations, the Borrower shall pay
all arrears of interest and all payments on account of principal of the Obligations which
shall have become due otherwise than by acceleration (with interest on principal and, to the
extent permitted by Applicable Law, on overdue interest, at the rates specified in this
Agreement) and all Events of Default and Defaults (other than nonpayment of principal of and
accrued interest on the Obligations due and payable solely by virtue of acceleration) shall
become remedied or waived to the satisfaction of the Requisite Lenders, then by written
notice to the Borrower, the Requisite Lenders may elect, in the sole discretion of such
Requisite Lenders, to rescind and annul the acceleration and its consequences. The
provisions of the preceding sentence are intended merely to bind all of the Lenders to a
decision which may be made at the election of the Requisite Lenders, and are not intended to
benefit the Borrower and do not give the Borrower the right to require the Lenders to
rescind or annul any acceleration hereunder, even if the conditions set forth herein are
satisfied



     (b) Loan Documents. The Requisite Lenders may direct the Administrative Agent to, and
the Administrative Agent if so directed shall, exercise any and all of its rights under any and all
of the other Loan Documents.



     (c) Applicable Law. The Requisite Lenders may direct the Administrative Agent to, and
the Administrative Agent if so directed shall, exercise all other rights and remedies it may have
under any Applicable Law.



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Section 11.3 Marshaling; Payments Set Aside.




     Neither the Administrative Agent nor any Lender shall be under any obligation to marshal any
assets in favor of any Loan Party or any other party or against or in payment of any or all of the
Obligations. To the extent that any Loan Party makes a payment or payments to the Administrative
Agent and/or any Lender, or the Administrative Agent and/or any Lender enforce their security
interests or exercise their rights of setoff, and such payment or payments or the proceeds of such
enforcement or setoff or any part thereof are subsequently invalidated, declared to be fraudulent
or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party
under any bankruptcy law, state or federal law, common law or equitable cause, then to the extent
of such recovery, the Obligations or part thereof originally intended to be satisfied, and all
Liens, rights and remedies therefor, shall be revived and continued in full force and effect as if
such payment had not been made or such enforcement or setoff had not occurred.



Section 11.4 Allocation of Proceeds.




     If an Event of Default exists and maturity of any of the Obligations has been accelerated, all
payments received by the Administrative Agent under any of the Loan Documents, in respect of any
principal of or interest on the Obligations or any other amounts payable by the Borrower hereunder
or thereunder, shall be applied in the following order and priority:



     (a) amounts due to the Administrative Agent and the Lenders in respect of Fees and expenses
due under Section 13.2;



     (b) payments of interest on Loans, to be applied for the ratable benefit of the Lenders;




     (c) payments of principal of Loans, to be applied for the ratable benefit of the Lenders;




     (d) amounts due to the Administrative Agent and the Lenders pursuant to Sections
12.7 and 13.10;



     (e) payments of all other amounts due under any of the Loan Documents, if any, to be applied
for the ratable benefit of the Lenders; and



     (f) any amount remaining after application as provided above, shall be paid to the Borrower or
whomever else may be legally entitled thereto.



Section 11.5 Letter of Credit Collateral Account.




     (a) As collateral security for the prompt payment in full when due of all Letter of Credit
Liabilities, the Borrower hereby pledges and grants to the Administrative Agent, for the benefit of
the Administrative Agent and the Lenders as provided herein, a security interest in all of its
right, title and interest in and to the Letter of Credit Collateral Account established pursuant to
the requirements of Section 2.12, and the balances from time to time in the Letter of
Credit Collateral Account (including the investments and reinvestments therein provided for below).
The balances from time to time in the Letter of Credit Collateral Account shall not constitute
payment of any Letter of Credit Liabilities until applied by the Administrative Agent



Page 87









 







as provided herein. Anything in this Agreement to the contrary notwithstanding, funds held in
the Letter of Credit Collateral Account shall be subject to withdrawal only as provided in this
Section and in Section 2.12.



     (b) Amounts on deposit in the Letter of Credit Collateral Account shall be invested and
reinvested by the Administrative Agent in such cash equivalents as the Administrative Agent shall
determine in its sole discretion. All such investments and reinvestments shall be held in the name
of and be under the sole dominion and control of the Administrative Agent, provided, that
all earnings on such investments will be credited to and retained in the Letter of Credit
Collateral Account for the account of Borrower. The Administrative Agent shall exercise reasonable
care in the custody and preservation of any funds held in the Letter of Credit Collateral Account
and shall be deemed to have exercised such care if such funds are accorded treatment substantially
equivalent to that which the Administrative Agent accords other funds deposited with the
Administrative Agent, it being understood that the Administrative Agent shall not have any
responsibility for taking any necessary steps to preserve rights against any parties with respect
to any funds held in the Letter of Credit Collateral Account.



     (c) If an Event of Default exists, the Administrative Agent shall, if instructed by the
Requisite Lenders in their discretion at any time and from time to time, elect to liquidate any
such investments and reinvestments referenced in subsection (b) above and credit the proceeds
thereof to the Letter of Credit Collateral Account and apply or cause to be applied such proceeds
and any other balances in the Letter of Credit Collateral Account to the payment of any of the
Letter of Credit Liabilities due and payable.



     (d) So long as no Default or Event of Default exists, the Administrative Agent shall, from
time to time, at the request of the Borrower, deliver to the Borrower, against receipt but without
any recourse, warranty or representation whatsoever, such of the balances in the Letter of Credit
Collateral Account as exceed the aggregate amount of Letter of Credit Liabilities at such time.
When all of the Obligations shall have been indefeasibly paid in full and no Letters of Credit
remain outstanding, the Administrative Agent shall deliver to the Borrower, against receipt but
without any recourse, warranty or representation whatsoever, the balances remaining in the Letter
of Credit Collateral Account.



     (e) The Borrower shall pay to the Administrative Agent from time to time such fees as the
Administrative Agent normally charges for similar services in connection with the Administrative
Agent’s administration of the Letter of Credit Collateral Account and investments and reinvestments
of funds therein.



Section 11.6 Performance by Administrative Agent.




     If the Borrower shall fail to perform any covenant, duty or agreement contained in any of the
Loan Documents, the Administrative Agent may perform or attempt to perform such covenant, duty or
agreement on behalf of the Borrower after the expiration of any cure or grace periods set forth
herein. In such event, the Borrower shall, at the request of the Administrative Agent, promptly
reimburse the Administrative Agent the duly documented, out-of-pocket costs of third parties
engaged by the Administrative Agent in such performance or attempted performance to the
Administrative Agent. Notwithstanding the foregoing, neither the



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Administrative Agent nor any Lender shall have any liability or responsibility whatsoever for
the performance of any obligation of the Borrower under this Agreement or any other Loan Document.



Section 11.7 Rights Cumulative.




     The rights and remedies of the Administrative Agent and the Lenders under this Agreement and
each of the other Loan Documents shall be cumulative and not exclusive of any rights or remedies
which any of them may otherwise have under Applicable Law. In exercising their respective rights
and remedies the Administrative Agent and the Lenders may be selective and no failure or delay by
the Administrative Agent or any of the Lenders in exercising any right shall operate as a waiver of
it, nor shall any single or partial exercise of any power or right preclude its other or further
exercise or the exercise of any other power or right.



ARTICLE XII THE AGENT




Section 12.1 Authorization and Action.




     Each Lender hereby appoints and authorizes the Administrative Agent to take such action as
contractual representative on such Lender’s behalf and to exercise such powers under this Agreement
and the other Loan Documents as are specifically delegated to the Administrative Agent by the terms
hereof and thereof, together with such powers as are reasonably incidental thereto. Not in
limitation of the foregoing, each Lender authorizes and directs the Administrative Agent to enter
into the Loan Documents for the benefit of the Lenders. Each Lender hereby agrees that, except as
otherwise set forth herein, any action taken by the Requisite Lenders in accordance with the
provisions of this Agreement or the Loan Documents, and the exercise by the Requisite Lenders of
the powers set forth herein or therein, together with such other powers as are reasonably
incidental thereto, shall be authorized and binding upon all of the Lenders. Nothing herein shall
be construed to deem the Administrative Agent a trustee or fiduciary for any Lender or to impose on
the Administrative Agent duties or obligations other than those expressly provided for herein.
Without limiting the generality of the foregoing, the use of the terms “Administrative Agent”,
“Agent”, “agent” and similar terms in the Loan Documents with reference to the Administrative Agent
is not intended to connote any fiduciary or other implied (or express) obligations arising under
agency doctrine of any Applicable Law. Instead, use of such terms is merely a matter of market
custom, and is intended to create or reflect only an administrative relationship between
independent contracting parties. Except as otherwise specifically provided in this Agreement, at
the request of a Lender, the Administrative Agent will forward to such Lender copies or, where
appropriate, originals of the documents delivered to the Administrative Agent pursuant to this
Agreement or the other Loan Documents. The Administrative Agent shall deliver to each Lender,
promptly upon receipt thereof by the Administrative Agent, one original of each Note made payable
to the order of such Lender and copies of each of the financial statements, certificates, notices
and other documents delivered to the Administrative Agent pursuant to Article IX; provided
such delivered documents shall not be deemed to include any documents obtained by the
Administrative Agent from the internet pursuant to Sections 9.1, 9.2 or
9.4.(b). The Administrative Agent will also furnish to any Lender, upon the request of
such Lender, a copy of any certificate or notice furnished to the Administrative Agent by the
Borrower, any Loan Party or any other Affiliate of the Borrower,



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pursuant to this Agreement or any other Loan Document not already delivered to such Lender
pursuant to the terms of this Agreement or any such other Loan Document. As to any matters not
expressly provided for by the Loan Documents (including, without limitation, enforcement or
collection of any of the Obligations), the Administrative Agent shall not be required to exercise
any discretion or take any action, but shall be required to act or to refrain from acting (and
shall be fully protected in so acting or refraining from acting) upon the instructions of the
Requisite Lenders (or all of the Lenders if explicitly required under any other provision of this
Agreement), and such instructions shall be binding upon all Lenders and all holders of any of the
Obligations; provided, however, that, notwithstanding anything in this Agreement to
the contrary, the Administrative Agent shall not be required to take any action which exposes the
Administrative Agent to personal liability or which is contrary to this Agreement or any other Loan
Document or Applicable Law. Not in limitation of the foregoing, the Administrative Agent shall
exercise any right or remedy it or the Lenders may have under any Loan Document upon the occurrence
of a Default or an Event of Default unless the Requisite Lenders have directed the Administrative
Agent otherwise. Without limiting the foregoing, no Lender shall have any right of action
whatsoever against the Administrative Agent as a result of the Administrative Agent acting or
refraining from acting under this Agreement or any of the other Loan Documents in accordance with
the instructions of the Requisite Lenders, or where applicable, all the Lenders.



Section 12.2 Administrative Agent’s Reliance, Etc.




     Notwithstanding any other provisions of this Agreement or any other Loan Documents, neither
the Administrative Agent nor any of its directors, officers, agents, employees or counsel shall be
liable for any action taken or not taken by it under or in connection with this Agreement or any
other Loan Document, except for its or their own gross negligence or willful misconduct in
connection with its duties expressly set forth herein or therein. Without limiting the generality
of the foregoing, the Administrative Agent: may consult with legal counsel (including its own
counsel or counsel for the Borrower or any other Loan Party), independent public accountants and
other experts selected by it with reasonable care and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants
or experts. Neither the Administrative Agent nor any of its directors, officers, agents, employees
or counsel: (a) makes any warranty or representation to any Lender or any other Person and shall be
responsible to any Lender or any other Person for any statement, warranty or representation made or
deemed made by the Borrower, any other Loan Party or any other Person in or in connection with this
Agreement or any other Loan Document; (b) shall have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this Agreement or any
other Loan Document or the satisfaction of any conditions precedent under this Agreement or any
Loan Document on the part of the Borrower or other Persons or inspect the property, books or
records of the Borrower or any other Person; (c) shall be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement
or any other Loan Document, any other instrument or document furnished pursuant thereto or any
Collateral covered thereby or the perfection or priority of any Lien in favor of the Administrative
Agent on behalf of the Lenders in any such Collateral; (d) shall have any liability in respect of
any recitals, statements, certifications, representations or warranties contained in any of the
Loan Documents or any other document, instrument, agreement, certificate or statement delivered in
connection therewith; and (e) shall incur any liability under or in respect of this Agreement or
any other Loan Document by



Page 90









 







acting upon any notice, consent, certificate or other instrument or writing (which may be by
telephone, telecopy or electronic mail) believed by it to be genuine and signed, sent or given by
the proper party or parties. The Administrative Agent may execute any of its duties under the Loan
Documents by or through agents, employees or attorneys-in-fact and shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects with reasonable care in
the absence of gross negligence or willful misconduct.



Section 12.3 Notice of Defaults.




     The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of
a Default or Event of Default unless the Administrative Agent has received notice from a Lender or
the Borrower referring to this Agreement, describing with reasonable specificity such Default or
Event of Default and stating that such notice is a “notice of default or event of default.” If any
Lender (excluding the Lender which is also serving as the Administrative Agent) becomes aware of
any Default or Event of Default, it shall promptly send to the Administrative Agent with a copy to
Borrower such a “notice of default or event of default.” Further, if the Administrative Agent
receives such a “notice of default”, the Administrative Agent shall give prompt notice thereof to
the Lenders with a copy to Borrower.



Section 12.4 Wells Fargo as Lender.




     Wells Fargo, as a “Lender”, shall have the same rights and powers under this Agreement and any
other Loan Document as any other Lender and may exercise the same as though it were not the
Administrative Agent; and the term “Lender” or “Lenders” shall, unless otherwise expressly
indicated, include Wells Fargo in each case in its individual capacity. Wells Fargo and its
affiliates may each accept deposits from, maintain deposits or credit balances for, invest in, lend
money to, act as trustee under indentures of, serve as financial advisor to, and generally engage
in any kind of business with the Borrower, any other Loan Party or any other affiliate thereof as
if it were any other bank and without any duty to account therefor to the other Lenders. Further,
the Administrative Agent and any affiliate may accept fees and other consideration from the
Borrower for services in connection with this Agreement and otherwise without having to account for
the same to the other Lenders. The Lenders acknowledge that, pursuant to such activities, Wells
Fargo or its affiliates may receive information regarding the Borrower, other Loan Parties, other
Subsidiaries and other Affiliates (including information that may be subject to confidentiality
obligations in favor of such Person) and acknowledge that the Administrative Agent shall be under
no obligation to provide such information to them.



Section 12.5 Approvals of Lenders.




     All communications from the Administrative Agent to any Lender requesting such Lender’s
determination, consent, approval or disapproval (a) shall be given in the form of a written notice
to such Lender, (b) shall be accompanied by a description of the matter or issue as to which such
determination, approval, consent or disapproval is requested, or shall advise such Lender where
information, if any, regarding such matter or issue may be inspected, or shall otherwise describe
the matter or issue to be resolved, (c) shall include, if reasonably requested by such Lender and
to the extent not previously provided to such Lender, written materials and a summary of all oral
information provided to the Administrative Agent by the Borrower in respect



Page 91









 







of the matter or issue to be resolved, and (d) shall include the Administrative Agent’s
recommended course of action or determination in respect thereof. Each Lender shall reply
promptly, but in any event within ten (10) Business Days of receipt of such communication (or such
lesser period as may be required under the Loan Documents for the Administrative Agent to respond).
Unless a Lender shall give written notice to the Administrative Agent that it specifically objects
to the recommendation or determination of the Administrative Agent (together with a written
explanation of the reasons behind such objection) within the applicable time period for reply, such
Lender shall be deemed to have conclusively approved of or consented to such recommendation or
determination.



Section 12.6 Lender Credit Decision, Etc.




     Each Lender expressly acknowledges and agrees that neither the Administrative Agent nor any of
its officers, directors, employees, agents, counsel, attorneys-in-fact or other affiliates has made
any representations or warranties as to the financial condition, operations, creditworthiness,
solvency or other information concerning the business or affairs of the Borrower, any other Loan
Party, any Subsidiary or any other Person to such Lender and that no act by the Administrative
Agent hereinafter taken, including any review of the affairs of the Borrower, shall be deemed to
constitute any such representation or warranty by the Administrative Agent to any Lender. Each
Lender acknowledges that it has, independently and without reliance upon the Administrative Agent,
any other Lender or counsel to the Administrative Agent, or any of their respective officers,
directors, employees and agents, and based on the financial statements of the Borrower, the
Subsidiaries or any other Affiliate thereof, and inquiries of such Persons, its independent due
diligence of the business and affairs of the Borrower, the Loan Parties, the Subsidiaries and other
Persons, its review of the Loan Documents, the legal opinions required to be delivered to it
hereunder, the advice of its own counsel and such other documents and information as it has deemed
appropriate, made its own credit and legal analysis and decision to enter into this Agreement and
the transaction contemplated hereby. Each Lender also acknowledges that it will, independently and
without reliance upon the Administrative Agent, any other Lender or counsel to the Administrative
Agent or any of their respective officers, directors, employees and agents, and based on such
review, advice, documents and information as it shall deem appropriate at the time, continue to
make its own decisions in taking or not taking action under the Loan Documents. Except for
notices, reports and other documents and information expressly required to be furnished to the
Lenders by the Administrative Agent under this Agreement or any of the other Loan Documents, the
Administrative Agent shall have no duty or responsibility to provide any Lender with any credit or
other information concerning the business, operations, property, financial and other condition or
creditworthiness of the Borrower, any other Loan Party or any other Affiliate thereof which may
come into possession of the Administrative Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or other Affiliates. Each Lender acknowledges that the Administrative
Agent’s legal counsel in connection with the transactions contemplated by this Agreement is only
acting as counsel to the Administrative Agent and is not acting as counsel to such Lender.



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Section 12.7 Indemnification of Administrative Agent.




     Each Lender agrees to indemnify the Administrative Agent (to the extent not reimbursed by the
Borrower and without limiting the obligation of the Borrower to do so) pro rata in accordance with
such Lender’s respective Pro Rata Share, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind
or nature whatsoever which may at any time be imposed on, incurred by, or asserted against the
Administrative Agent (in its capacity as Administrative Agent but not as a “Lender”) in any way
relating to or arising out of the Loan Documents, any transaction contemplated hereby or thereby or
any action taken or omitted by the Administrative Agent under the Loan Documents (collectively,
“Indemnifiable Amounts”); provided, however, that no Lender shall be liable for any
portion of such Indemnifiable Amounts to the extent resulting from the Administrative Agent’s gross
negligence or willful misconduct or if the Administrative Agent fails to follow the written
direction of the Requisite Lenders unless such failure is pursuant to the advice of counsel of
which the Lenders have received notice. Without limiting the generality of the foregoing, each
Lender agrees to reimburse the Administrative Agent promptly upon demand for its ratable share of
any out-of-pocket expenses (including reasonable counsel fees of the counsel(s) of the
Administrative Agent’s own choosing) incurred by the Administrative Agent in connection with the
preparation, negotiation, execution, administration, or enforcement of, or legal advice with
respect to the rights or responsibilities of the parties under, the Loan Documents, any suit or
action brought by the Administrative Agent to enforce the terms of the Loan Documents and/or
collect any Obligations, any “lender liability” suit or claim brought against the Administrative
Agent and/or the Lenders, and any claim or suit brought against the Administrative Agent and/or the
Lenders arising under any Environmental Laws, to the extent that the Administrative Agent is not
reimbursed for such expenses by the Borrower. Such out-of-pocket expenses (including reasonable
counsel fees) shall be advanced by the Lenders on the request of the Administrative Agent
notwithstanding any claim or assertion that the Administrative Agent is not entitled to
indemnification hereunder upon receipt of an undertaking by the Administrative Agent that the
Administrative Agent will reimburse the Lenders if it is actually and finally determined by a court
of competent jurisdiction that the Administrative Agent is not so entitled to indemnification. The
agreements in this Section shall survive the payment of the Loans and all other amounts payable
hereunder or under the other Loan Documents and the termination of this Agreement.



Section 12.8 Successor Administrative Agent.




     The Administrative Agent may resign at any time as Administrative Agent under the Loan
Documents by giving written notice thereof to the Lenders and the Borrower. In the event (a) of
Administrative Agent’s gross negligence or willful misconduct or (b) Administrative Agent, at any
time, ceases to maintain a Pro Rata Share equal to or greater than the Pro Rata Share of each other
Lender, the Administrative Agent may be removed as Administrative Agent under the Loan Documents at
any time by Requisite Lenders (other than the Administrative Agent as a “Lender”) upon thirty (30)
day’s prior notice. Upon any such resignation or removal, the Requisite Lenders (which, in the
case of the removal of the Administrative Agent as provided in the immediately preceding sentence,
shall be determined without regard to the Commitment of the Lender then acting as Administrative
Agent) shall have the right to appoint a successor Administrative Agent which appointment shall,
provided no Default or Event of Default exists,



Page 93









 







be subject to the Borrower’s approval, which approval shall not be unreasonably withheld or
delayed (except that the Borrower shall, in all events, be deemed to have approved each Lender as a
successor Administrative Agent). If no successor Administrative Agent shall have been so appointed
in accordance with the immediately preceding sentence, and shall have accepted such appointment,
within thirty (30) days after the resigning Administrative Agent’s giving of notice of resignation
or the Lenders’ removal of the resigning Administrative Agent, then the resigning or removed
Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent, which
shall be a Lender, if any Lender shall be willing to serve, and otherwise shall be an Eligible
Assignee. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and obligations under the
Loan Documents. After any Administrative Agent’s resignation or removal hereunder as
Administrative Agent, the provisions of this Article XII shall continue to inure to its
benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent
under the Loan Documents.



Section 12.9 Titled Agents.




     Each of the Syndication Agents, Documentation Agents and Managing Agents (each a “Titled
Agent”) in each such respective capacity, assumes no responsibility or obligation hereunder,
including, without limitation, for servicing, enforcement or collection of any of the Loans, nor
any duties as an agent hereunder for the Lenders. The titles given to the Titled Agents are solely
honorific and imply no fiduciary responsibility on the part of the Titled Agents to the
Administrative Agent, any Lender, the Borrower or any other Loan Party and the use of such titles
does not impose on the Titled Agents any duties or obligations greater than those of any other
Lender or entitle the Titled Agents to any rights other than those to which any other Lender is
entitled.



ARTICLE XIII MISCELLANEOUS




Section 13.1 Notices.




     Unless otherwise provided herein, communications provided for hereunder shall be in writing
and shall be mailed, sent by overnight delivery, telecopied or delivered as follows:



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     If to the Borrower:


Equity One, Inc.

1600 N.E. Miami Gardens Drive

North Miami Beach, Florida 33179

Attention: Howard M. Sipzner, CFO

Facsimile :(305) 957-1214

Telephone Number:(305) 947-1664




     With a copy to:


Equity One, Inc.

1600 N.E. Miami Gardens Drive

North Miami Beach, Florida 33179

Attention: Arthur L. Gallagher, Esq.

Facsimile :(305) 957-1214

Telephone Number:(305) 947-1664




     If to the Administrative Agent or a Lender:




To the address or telecopy number, as applicable, of the Administrative Agent or
such Lender, as the case may be, set forth on its signature page hereto or, in the
case of a Lender, in the applicable Assignment and Acceptance Agreement,


or, as to each party at such other address as shall be designated by such party in a written notice
to the other parties delivered in compliance with this Section. All such notices and other
communications shall be effective (i) if mailed or sent by overnight delivery, when received; (ii)
if telecopied, when transmitted; or (iii) if hand delivered, when delivered. Notwithstanding the
immediately preceding sentence, all notices or communications to the Administrative Agent or any
Lender under Article II. shall be effective only when actually received. Neither the
Administrative Agent nor any Lender shall incur any liability to the Borrower (nor shall the
Administrative Agent incur any liability to the Lenders) for acting upon any telephonic notice
referred to in this Agreement which the Administrative Agent or such Lender, as the case may be,
believes in good faith to have been given by a Person authorized to deliver such notice or for
otherwise acting in good faith hereunder. The failure of any Person designated to receive only a
copy of any notice shall not render ineffective notice otherwise properly given to the Person to
receive such notice.




Section 13.2 Expenses.




     The Borrower agrees (a) to reimburse the Administrative Agent the duly documented
out-of-pocket costs of third parties engaged by Administrative Agent in connection with the
preparation, negotiation and execution of, and any amendment, supplement or modification to, any of
the Loan Documents (including due diligence expense and reasonable travel expenses related to
closing), and the consummation of the transactions contemplated thereby, including the reasonable
fees and duly documented disbursements of counsel to the Administrative Agent and all reasonable
and duly documented costs and expenses of the Administrative Agent in



Page 95









 







connection with the review of Properties for inclusion in calculations of the Pool and the
Administrative Agent’s other activities under Article IV, (b) to pay or reimburse the
Administrative Agent and the Lenders for all their costs and expenses incurred in connection with
the enforcement or preservation of any rights under the Loan Documents, including the reasonable
fees and duly documented disbursements of their respective counsel and any payments in
indemnification or otherwise payable by the Lenders to the Administrative Agent pursuant to the
Loan Documents, (c) to pay, and indemnify and hold harmless the Administrative Agent and the
Lenders from, any and all recording and filing fees and any and all liabilities with respect to, or
resulting from any failure to pay or delay in paying, documentary, stamp, excise and other similar
taxes, if any, which may be payable or determined to be payable in connection with the execution
and delivery of any of the Loan Documents, or consummation of any amendment, supplement or
modification of, or any waiver or consent under or in respect of, any Loan Document and (d) to the
extent not already covered by any of the preceding subsections, to pay the reasonable fees and duly
documented disbursements of counsel to the Administrative Agent and any Lender incurred in
connection with the representation of the Administrative Agent or such Lender in any matter
relating to or arising out of any bankruptcy or other proceeding of the type described in
Sections 11.1(e) or 11.1(f), including, without limitation (i) any motion
for relief from any stay or similar order, (ii) the negotiation, preparation, execution and
delivery of any document relating to the Obligations and (iii) the negotiation and preparation of
any debtor-in-possession financing or any plan of reorganization of the Borrower or any other Loan
Party, whether proposed by the Borrower, such Loan Party, the Lenders or any other Person, and
whether such fees and expenses are incurred prior to, during or after the commencement of such
proceeding or the confirmation or conclusion of any such proceeding.



Section 13.3 Stamp, Intangible and Recording Taxes.




     The Borrower will pay any and all stamp, intangible, registration, recordation and similar
taxes, fees or charges and shall indemnify the Administrative Agent and each Lender against any and
all liabilities with respect to or resulting from any delay in the payment or omission to pay any
such taxes, fees or charges, which may be payable or determined to be payable in connection with
the execution, delivery, recording, performance or enforcement of this Agreement, the Notes and any
of the other Loan Documents or the perfection of any rights or Liens thereunder.



Section 13.4 Electronic Document Deliveries.




     Documents required to be delivered pursuant to the Loan Documents shall be delivered by
electronic communication and delivery, including, the Internet, e-mail or intranet websites to
which the Administrative Agent and each Lender have access (including a commercial, third-party
website such as www.Edgar.com <http://www.Edgar.com> or a website sponsored or hosted by the
Administrative Agent or the Borrower) provided that (A) the foregoing shall not apply to notices to
any Lender pursuant to Article II and (B) the Lender has not notified the Administrative
Agent or Borrower that it cannot or does not want to receive electronic communications. The
Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic delivery pursuant to procedures approved by it for all
or particular notices or communications. Documents or notices delivered electronically shall be
deemed to have been delivered twenty-four (24) hours after the date and time on which the
Administrative Agent or Borrower posts such documents or the



Page 96









 







documents become available on a commercial website and the Administrative Agent or Borrower
notifies each Lender of said posting and provides a link thereto provided if such notice or other
communication is not sent or posted during the normal business hours of the recipient, said posting
date and time shall be deemed to have commenced as of 9:00 a.m. on the opening of business on the
next business day for the recipient. Notwithstanding anything contained herein, in every instance
the Borrower shall be required to provide paper copies of the certificate required by Section
9.3 to the Administrative Agent and shall deliver paper copies of any documents to the
Administrative Agent or to any Lender that requests such paper copies until a written request to
cease delivering paper copies is given by the Administrative Agent or such Lender. Except for the
certificates required by Section 9.3, the Administrative Agent shall have no obligation to
request the delivery of or to maintain paper copies of the documents delivered electronically, and
in any event shall have no responsibility to monitor compliance by the Borrower with any such
request for delivery. Each Lender shall be solely responsible for requesting delivery to it of
paper copies and maintaining its paper or electronic documents.



Section 13.5 Litigation; Jurisdiction; Other Matters; Waivers.




     (a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN OR AMONG THE
BORROWER, THE ADMINISTRATIVE AGENT OR ANY OF THE LENDERS WOULD BE BASED ON DIFFICULT AND COMPLEX
ISSUES OF LAW AND FACT AND WOULD RESULT IN DELAY AND EXPENSE TO THE PARTIES. ACCORDINGLY, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LENDERS, THE ADMINISTRATIVE AGENT AND THE BORROWER
HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY
COURT OR TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST ANY PARTY HERETO ARISING OUT OF
THIS AGREEMENT, THE NOTES, OR ANY OTHER LOAN DOCUMENT OR IN CONNECTION WITH ANY COLLATERAL OR ANY
LIEN OR BY REASON OF ANY OTHER SUIT, CAUSE OF ACTION OR DISPUTE WHATSOEVER BETWEEN OR AMONG THE
BORROWER, THE ADMINISTRATIVE AGENT OR ANY OF THE LENDERS OF ANY KIND OR NATURE.



     (b) EACH OF THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER HEREBY AGREES THAT THE
FEDERAL DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK OR, AT THE OPTION OF THE ADMINISTRATIVE
AGENT, ANY STATE COURT LOCATED IN NEW YORK COUNTY, NEW YORK SHALL HAVE JURISDICTION TO HEAR AND
DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG THE BORROWER, THE ADMINISTRATIVE AGENT OR ANY OF
THE LENDERS, PERTAINING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT, THE LOANS AND LETTERS OF CREDIT,
THE NOTES OR ANY OTHER LOAN DOCUMENT OR TO ANY MATTER ARISING HERE FROM OR THEREFROM. THE BORROWER
AND EACH OF THE LENDERS EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY
ACTION OR PROCEEDING COMMENCED IN SUCH COURTS. THE BORROWER HEREBY WAIVES PERSONAL SERVICE OF THE
SUMMONS AND COMPLAINT, OR OTHER PROCESS OR PAPERS ISSUED THEREIN, AND AGREES THAT SERVICE OF SUCH
SUMMONS AND COMPLAINT, OR OTHER PROCESS OR PAPERS MAY BE MADE BY REGISTERED OR



Page 97









 







CERTIFIED MAIL ADDRESSED TO THE BORROWER AT ITS ADDRESS FOR NOTICES PROVIDED FOR HEREIN. TO
THE EXTENT PERMITTED BY LAW, SHOULD THE BORROWER FAIL TO APPEAR OR ANSWER ANY SUMMONS, COMPLAINT,
PROCESS OR PAPERS SO SERVED WITHIN THIRTY DAYS AFTER THE MAILING THEREOF, THE BORROWER SHALL BE
DEEMED IN DEFAULT AND AN ORDER AND/OR JUDGMENT MAY BE ENTERED AGAINST IT AS DEMANDED OR PRAYED FOR
IN SUCH SUMMONS, COMPLAINT, PROCESS OR PAPERS.



     (c) EACH PARTY FURTHER WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF
ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN
INCONVENIENT FORUM AND EACH AGREES NOT TO PLEAD OR CLAIM THE SAME.



     (d) THE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE BRINGING
OF ANY ACTION BY THE ADMINISTRATIVE AGENT OR ANY LENDER OR THE ENFORCEMENT BY THE ADMINISTRATIVE
AGENT OR ANY LENDER OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN ANY OTHER APPROPRIATE JURISDICTION.



     (e) THE BORROWER AGREES THAT ALL OF ITS PAYMENT OBLIGATIONS HEREUNDER SHALL BE ABSOLUTE AND
UNCONDITIONAL, AND, FOR THE PURPOSES OF AND WITH RESPECT TO MAKING PAYMENTS HEREUNDER, THE BORROWER
HEREBY WAIVES ANY RIGHT TO ASSERT ANY SETOFF, COUNTERCLAIM OR CROSS-CLAIM.



     (f) THE FOREGOING WAIVERS HAVE BEEN MADE WITH THE ADVICE OF COUNSEL AND WITH A FULL
UNDERSTANDING OF THE LEGAL CONSEQUENCES THEREOF, AND SHALL SURVIVE THE PAYMENT OF THE LOANS AND ALL
OTHER AMOUNTS PAYABLE HEREUNDER OR UNDER THE OTHER LOAN DOCUMENTS, THE TERMINATION OR EXPIRATION OF
ALL LETTERS OF CREDIT AND THE TERMINATION OF THIS AGREEMENT.



Section 13.6 Successors and Assigns.




     (a) Generally. The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns, except that the
Borrower may not assign or otherwise transfer any of its rights under this Agreement without the
prior written consent of all the Lenders (and any such assignment or transfer to which all of the
Lenders have not consented shall be void).



     (b) Participations. Any Lender may at any time grant to an affiliate of such Lender,
or one or more banks or other financial institutions (each a “Participant” ) participating
interests in its Commitment or the Obligations owing to such Lender, provided,
however, any such participating interest must be for a constant and not a varying
percentage interest. Except as otherwise provided in Section 3.3, no Participant shall
have any rights or benefits under this Agreement or any other Loan Document. In the event of any
such grant by a Lender of a



Page 98









 







participating interest to a Participant, such Lender shall remain responsible for the
performance of its obligations hereunder, and the Borrower and the Administrative Agent shall
continue to deal solely and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement. Any agreement pursuant to which any Lender may grant such a
participating interest shall provide that such Lender shall retain the sole right and
responsibility to enforce the obligations of the Borrower hereunder including, without limitation,
the right to approve any amendment, modification or waiver of any provision of this Agreement;
provided however, such Lender may agree with the Participant that it will not,
without the consent of the Participant, agree to (i) increase such Lender’s Commitment, (ii) extend
the date fixed for the payment of principal on the Loans or portions thereof owing to such Lender,
or (iii) reduce the rate at which interest is payable thereon. An assignment or other transfer
which is not permitted by subsection (c) or (d) below shall be given effect for purposes of this
Agreement only to the extent of a participating interest granted in accordance with this subsection
(b).



     (c) Assignments. Any Lender may with the prior written consent of the Administrative
Agent and the Borrower (which consent in each case, shall not be unreasonably withheld) at any time
assign to one or more Eligible Assignees (each an “Assignee”) all or a portion of its rights and
obligations under this Agreement and the Notes; provided, however, (i) no such
consent by the Borrower shall be required (x) if a Default or Event of Default shall exist or (y)
in the case of an assignment to another Lender or an affiliate of such Lender or another Lender;
(ii) no such consent by the Administrative Agent shall be required in the case of an assignment to
an affiliate of such Lender, (iii) without limiting each Lender’s right to assign all of its
Commitment, any partial assignment shall be in an amount at least equal to $10,000,000 and after
giving effect to such assignment the assigning Lender retains a Commitment, or if the Commitments
have been terminated, holds Notes having an aggregate outstanding principal balance, of at least
$7,500,000, and (iv) each such assignment shall be effected by means of an Assignment and
Acceptance Agreement. From and after the Assignment Effective Date (as such term is defined in the
Assignment and Acceptance Agreement), such Assignee shall be deemed to be a Lender party to this
Agreement and shall have all the rights and obligations of a Lender with a Commitment as set forth
in such Assignment and Acceptance Agreement, and the transferor Lender shall be released from its
obligations hereunder to a corresponding extent, and no further consent or action by any party
shall be required. Upon the consummation of any assignment pursuant to this subsection (c), the
transferor Lender, the Administrative Agent and the Borrower shall make appropriate arrangement so
the new Notes are issued to the Assignee and such transferor Lender, as appropriate. In connection
with any such assignment, the transferor Lender shall pay to the Administrative Agent an
administrative fee for processing such assignment in the amount of $3,500. Anything in this
Section to the contrary notwithstanding, no Lender may assign or participate any interest in any
Loan held by it hereunder to the Borrower, or any of its respective affiliates or Subsidiaries.



     (d) Designated Lenders. Any Lender (each, a “Designating Lender”) may at any time
designate one Designated Lender to fund Bid Rate Loans on behalf of such Designating Lender subject
to the terms of this subsection (d) and the provisions in the immediately preceding subsections (b)
and (c) shall not apply to such designation. No Lender may designate more than one Designated
Lender at any point in time. The parties to each such designation shall execute and deliver to the
Administrative Agent for its acceptance a Designation Agreement. Upon such receipt of an
appropriately completed Designation Agreement executed by a



Page 99









 







Designating Lender and a designee representing that it is a Designated Lender, the
Administrative Agent will accept such Designation Agreement and give prompt notice thereof to the
Borrower, whereupon, (i) the Borrower shall execute and deliver to the Designating Lender a
Designated Lender Note payable to the order of the Designated Lender, (ii) from and after the
effective date specified in the Designation Agreement, the Designated Lender shall become a party
to this Agreement with a right to make Bid Rate Loans on behalf of its Designating Lender pursuant
to Section 2.4 after the Borrower has accepted a Bid Rate Loan (or portion thereof) of the
Designating Lender, and (iii) the Designated Lender shall not be required to make payments with
respect to any obligations in this Agreement except to the extent of excess cash flow of such
Designated Lender which is not otherwise required to repay obligations of such Designated Lender
which are then due and payable; provided, however, that regardless of such
designation and assumption by the Designated Lender, the Designating Lender shall be and remain
obligated to the Borrower, the Administrative Agent and the Lenders for each and every of the
obligations of the Designating Lender and its related Designated Lender with respect to this
Agreement, including, without limitation, any indemnification obligations under Section
12.7 and any sums otherwise payable to the Borrower by the Designated Lender. Each Designating
Lender shall serve as the agent of the Designated Lender and shall on behalf of, and to the
exclusion of, the Designated Lender: (i) receive any and all payments made for the benefit of the
Designated Lender and (ii) give and receive all communications and notices and take all actions
hereunder, including, without limitation, votes, approvals, waivers, consents and amendments under
or relating to this Agreement and the other Loan Documents. Any such notice, communication, vote,
approval, waiver, consent or amendment shall be signed by the Designating Lender as agent for the
Designated Lender and shall not be signed by the Designated Lender on its own behalf and shall be
binding on the Designated Lender to the same extent as if signed by the Designated Lender on its
own behalf. The Borrower, the Administrative Agent and the Lenders may rely thereon without any
requirement that the Designated Lender sign or acknowledge the same. No Designated Lender may
assign or transfer all or any portion of its interest hereunder or under any other Loan Document,
other than assignments to the Designating Lender which originally designated such Designated
Lender. The Borrower, the Lenders and the Administrative Agent each hereby agrees that it will not
institute against any Designated Lender or join any other Person in instituting against any
Designated Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding
under any federal or state bankruptcy or similar law, until the later to occur of (x) one year and
one day after the payment in full of the latest maturing commercial paper note issued by such
Designated Lender and (y) the Termination Date. In connection with any such designation the
Designating Lender shall pay to the Administrative Agent an administrative fee for processing such
designation in the amount of $3,500.



     (e) Federal Reserve Bank Assignments. In addition to the assignments and
participations permitted under the foregoing provisions of this Section 13.6, and without
the need to comply with any of the formal or procedural requirements of this Section 13.6,
any Lender may at any time and from time to time, pledge and assign all or any portion of its
rights under all or any of the Loan Documents to a Federal Reserve Bank; provided that no such
pledge of assignment shall release such Lender from its obligation thereunder. To facilitate any
such pledge or assignment, Administrative Agent shall, at the request of such Lender, enter into a
letter agreement with the Federal Reserve Bank in, or substantially in, the form of the exhibit to
Appendix C to the Federal Reserve Bank of New York Operating Circular No 10, as amended



Page 100









 







from time to time. No such pledge or assignment shall release the assigning Lender from its
obligations hereunder.



     (f) Information to Assignee, Etc. A Lender may furnish any information concerning the
Borrower, any Subsidiary or any other Loan Party in the possession of such Lender from time to time
to Assignees and Participants (including prospective Assignees and Participants); provided that the
information concerning Borrower, any other Loan Party or Subsidiary shall be subject to Section
13.9.



Section 13.7 Amendments.




     (a) Generally. Except as otherwise expressly provided in this Agreement, (i) any
consent or approval required or permitted by this Agreement or in any Loan Document to be given by
the Lenders may be given, (ii) any term of this Agreement or of any other Loan Document (other than
any fee letter solely between the Borrower and the Administrative Agent) may be amended, (iii) the
performance or observance by the Borrower or any other Loan Party of any terms of this Agreement or
such other Loan Document (other than any fee letter solely between the Borrower and the
Administrative Agent) may be waived, and (iv) the continuance of any Default or Event of Default
may be waived (either generally or in a particular instance and either retroactively or
prospectively) with, but only with, the written consent of the Requisite Lenders (or the
Administrative Agent at the written direction of the Requisite Lenders), and, in the case of an
amendment to any Loan Document, the written consent of each Loan Party which is party thereto. In
limitation of the foregoing, (A) any modification or amendment of the financial covenant set forth
in Section 10.1(b), or waiver or any Default or Event of Default with respect to such
Section 10.1(b), or (B) modification or amendment of the definitions of the terms “Gross
Asset Value”, “Indebtedness” or “Total Liabilities” (or the definitions used in such definition or
the percentages or rates used in the calculation thereof), shall require the consent of Requisite
Lenders (which Requisite Lenders must include Wells Fargo, so long as Wells Fargo remains a party
hereto):



     (b) Unanimous Consent. Notwithstanding the foregoing, no amendment, waiver or consent
shall, unless in writing, and signed by all of the Lenders (or the Administrative Agent at the
written direction of the Lenders), do any of the following:




     (i) increase the Commitments of the Lenders (excluding any increase as a result of an
assignment of Commitments permitted under Section 13.6) or subject the Lenders to
any additional obligations, except for any increases contemplated under Section
2.14;




     (ii) reduce the principal of, or interest rates that have accrued or that will be
charged on the outstanding principal amount of, any Loans or other Obligations;




     (iii) reduce the amount of any Fees payable to the Lenders hereunder, other than Fees
payable to Administrative Agent pursuant to the Fee Letter;




     (iv) postpone any date fixed for any payment of principal of, or interest on, any Loans
or for the payment of Fees (other than Fees to Administrative Agent pursuant



Page 101









 







to the Fee Letter) or any other Obligations, or extend the expiration date of any
Letter of Credit beyond the Termination Date;




     (v) change the Pro Rata Shares (excluding any change as a result of an assignment of
Commitments permitted under Section 13.6 or an increase of Commitments effected
pursuant to Section 2.14);




     (vi) amend this Section 13.7 or amend the definitions of the terms used in this
Agreement or the other Loan Documents insofar as such definitions affect the substance of
this Section 13.7;




     (vii) modify the definition of the term “Requisite Lenders” or modify in any other
manner the number or percentage of the Lenders required to make any determinations or waive
any rights hereunder or to modify any provision hereof;




     (viii) release any Guarantor from its obligations under the Guaranty except as
contemplated under Section 8.14;




     (ix) modify the definitions of the terms “Maximum Availability” or “Pool Value” (or the
definitions used in such definition or the percentages or rates used in the calculation
thereof), or modifying the provisions of Sections 2.1(a)(i),
2.8(b)(ii) or 2.13 which utilize such terms;




     (x) waive a Default or Event of Default under Section 11.1(a) or Section
11.1(l)(i); or




     (xi) amend, or waive the Borrower’s compliance with, Section 2.8(b)(ii).



     (c) Amendment of Administrative Agent’s Duties, Etc. No amendment, waiver or consent
unless in writing and signed by the Administrative Agent, in addition to the Lenders required
hereinabove to take such action, shall affect the rights or duties of the Administrative Agent
under this Agreement or any of the other Loan Documents. Any amendment, waiver or consent relating
to Section 2.3 or the obligations of the Swingline Lender under this Agreement or any other
Loan Document shall, in addition to the Lenders required hereinabove to take such action, require
the written consent of the Swingline Lender. No waiver shall extend to or affect any obligation
not expressly waived or impair any right consequent thereon and any amendment, waiver or consent
shall be effective only in the specific instance and for the specific purpose set forth therein.
No course of dealing or delay or omission on the part of the Administrative Agent or any Lender in
exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. Any
Event of Default occurring hereunder shall continue to exist until such time as such Event of
Default is waived in writing in accordance with the terms of this Section, notwithstanding any
attempted cure or other action by the Borrower, any other Loan Party or any other Person subsequent
to the occurrence of such Event of Default. Except as otherwise explicitly provided for herein or
in any other Loan Document, no notice to or demand upon the Borrower shall entitle the Borrower to
other or further notice or demand in similar or other circumstances.



Page 102









 





Section 13.8 Nonliability of Administrative Agent and Lenders.




     The relationship between the Borrower, on the one hand, and the Lenders and the Administrative
Agent, on the other hand, shall be solely that of borrower and lender. Neither the Administrative
Agent nor any Lender shall have any fiduciary responsibilities to the Borrower and no provision in
this Agreement or in any of the other Loan Documents, and no course of dealing between or among any
of the parties hereto, shall be deemed to create any fiduciary duty owing by the Administrative
Agent or any Lender to any Lender, the Borrower, any Subsidiary or any other Loan Party. Neither
the Administrative Agent nor any Lender undertakes any responsibility to the Borrower to review or
inform the Borrower of any matter in connection with any phase of the Borrower’s business or
operations.



Section 13.9 Confidentiality.




     Except as otherwise provided by Applicable Law, the Administrative Agent and each Lender shall
utilize all non-public information obtained pursuant to the requirements of this Agreement which
has been identified as confidential or proprietary by the Borrower in accordance with its customary
procedure for handling confidential information of this nature and in accordance with safe and
sound banking practices but in any event may make disclosure: (a) to any of their respective
affiliates (provided any such affiliate shall agree to keep such information confidential in
accordance with the terms of this Section 13.9); (b) as reasonably requested by any bona
fide Assignee, Participant or other transferee in connection with the contemplated transfer of any
Commitment or participations therein as permitted hereunder (provided they shall agree to keep such
information confidential in accordance with the terms of this Section); (c) as required or
requested by any Governmental Authority or self-regulatory body or representative thereof or
pursuant to legal process or in connection with any legal proceedings; (d) to the Administrative
Agent’s or such Lender’s independent auditors and other professional advisors (provided they shall
be notified of the confidential nature of the information); (e) if an Event of Default exists, to
any other Person, but solely in connection with the exercise by the Administrative Agent or the
Lenders of their rights hereunder or under any of the other Loan Documents; and (f) to the extent
such information (x) becomes publicly available other than as a result of a breach of this
Section 13.9 or (y) becomes available to the Administrative Agent or any Lender on a
nonconfidential basis from a source other than the Borrower or any Affiliate.



Section 13.10 Indemnification.




     (a) The Borrower shall and hereby agrees to indemnify, defend and hold harmless the
Administrative Agent, any affiliate of the Administrative Agent and each of the Lenders and their
respective directors, officers, shareholders, agents, employees and counsel (each referred to
herein as an “Indemnified Party”) from and against any and all losses, costs, claims, damages,
liabilities, deficiencies, judgments or expenses of every kind and nature (including, without
limitation, amounts paid in settlement, court costs and the reasonable and duly documented fees and
disbursements of counsel incurred in connection with any litigation, investigation, claim or
proceeding or any advice rendered in connection therewith) incurred by an Indemnified Party in
connection with, arising out of, or by reason of, any suit, cause of action, claim, arbitration,
investigation or settlement, consent decree or other proceeding (the foregoing referred to herein



Page 103









 







as an “Indemnity Proceeding”) which is in any way related directly or indirectly to: (i) this
Agreement or any other Loan Document or the transactions contemplated thereby; (ii) the making of
any Loans or issuance of Letters of Credit hereunder; (iii) any actual or proposed use by the
Borrower of the proceeds of the Loans or Letters of Credit; (iv) the Administrative Agent’s or any
Lender’s entering into this Agreement; (v) the fact that the Administrative Agent and the Lenders
have established the credit facility evidenced hereby in favor of the Borrower; (vi) the fact that
the Administrative Agent and the Lenders are creditors of the Borrower and have or are alleged to
have information regarding the financial condition, strategic plans or business operations of the
Borrower and the Subsidiaries; (vii) the fact that the Administrative Agent and the Lenders are
material creditors of the Borrower and are alleged to influence directly or indirectly the business
decisions or affairs of the Borrower and the Subsidiaries or their financial condition; (viii) the
exercise of any right or remedy the Administrative Agent or the Lenders may have under this
Agreement or the other Loan Documents including, but not limited to, the foreclosure upon, or
seizure of, any collateral or the exercise of any other rights of a secured party; (ix) any
violation or non-compliance by the Borrower or any Subsidiary of any Applicable Law (including any
Environmental Law) including, but not limited to, any Indemnity Proceeding commenced by (A) the
Internal Revenue Service or state taxing authority or (B) any Governmental Authority or other
Person under any Environmental Law, including any Indemnity Proceeding commenced by a Governmental
Authority or other Person seeking remedial or other action to cause the Borrower or its
Subsidiaries (or its respective properties) (or the Administrative Agent and/or the Lenders as
successors to the Borrower) to be in compliance with such Environmental Laws; provided,
however, that the Borrower shall not be obligated to indemnify any Indemnified Party for
any acts or omissions of such Indemnified party in connection with matters described in this clause
(a) that constitute gross negligence or willful misconduct.



     (b) The Borrower’s indemnification obligations under this Section shall apply to all Indemnity
Proceedings arising out of, or related to, the foregoing whether or not an Indemnified Party is a
named party in such Indemnity Proceeding. In this connection, this indemnification shall cover all
costs and expenses of any Indemnified Party in connection with any deposition of any Indemnified
Party or compliance with any subpoena (including any subpoena requesting the production of
documents). This indemnification shall, among other things, apply to any Indemnity Proceeding
commenced by other creditors of the Borrower or any Subsidiary, any shareholder of the Borrower or
any Subsidiary (whether such shareholder(s) are prosecuting such Indemnity Proceeding in their
individual capacity or derivatively on behalf of the Borrower), any account debtor of the Borrower
or any Subsidiary or by any Governmental Authority.



     (c) This indemnification shall apply to any Indemnity Proceeding arising during the pendency
of any bankruptcy proceeding filed by or against the Borrower and/or any Subsidiary.



     (d) All out-of-pocket fees and expenses of, and all amounts paid to third-persons by, an
Indemnified Party shall be reimbursed by the Borrower at the request of such Indemnified Party
notwithstanding any claim or assertion by the Borrower that such Indemnified Party is not entitled
to indemnification hereunder upon receipt of an undertaking by such Indemnified Party that such
Indemnified Party will reimburse the Borrower if it is actually and finally determined by a court
of competent jurisdiction that such Indemnified Party is not so entitled to indemnification
hereunder.



Page 104









 





     (e) An Indemnified Party may conduct its own investigation and defense of, and may formulate
its own strategy with respect to, any Indemnity Proceeding covered by this Section and, as provided
above, all costs and expenses incurred by such Indemnified Party shall be reimbursed by the
Borrower. No action taken by legal counsel chosen by an Indemnified Party in investigating or
defending against any such Indemnity Proceeding shall vitiate or in any way impair the obligations
and duties of the Borrower hereunder to indemnify and hold harmless each such Indemnified Party;
provided, however, that (i) if the Borrower is required to indemnify an Indemnified
Party pursuant hereto and (ii) the Borrower has provided evidence reasonably satisfactory to such
Indemnified Party that the Borrower has the financial wherewithal to reimburse such Indemnified
Party for any amount paid by such Indemnified Party with respect to such Indemnity Proceeding, such
Indemnified Party shall not settle or compromise any such Indemnity Proceeding without the prior
written consent of the Borrower (which consent shall not be unreasonably withheld or delayed).



     (f) If and to the extent that the obligations of the Borrower hereunder are unenforceable for
any reason, the Borrower hereby agrees to make the maximum contribution to the payment and
satisfaction of such obligations which is permissible under Applicable Law.



Section 13.11 Termination; Survival.




     At such time as (a) all of the Commitments have been terminated, (b) none of the Lenders is
obligated any longer under this Agreement to make any Loans and (c) all Obligations (other than
obligations which survive as provided in the following sentence) have been paid and satisfied in
full, this Agreement shall terminate. The indemnities to which the Administrative Agent and the
Lenders are entitled under the provisions of Sections 3.12, 5.1,
5.4, 12.7, 13.2 and 13.10 and any other provision of this Agreement
and the other Loan Documents, and the provisions of Section 13.5, shall continue in full
force and effect and shall protect the Administrative Agent and the Lenders (i) notwithstanding any
termination of this Agreement, or of the other Loan Documents, against events arising after such
termination as well as before and (ii) at all times after any such party ceases to be a party to
this Agreement with respect to all matters and events existing on or prior to the date such party
ceased to be a party to this Agreement.



Section 13.12 Severability of Provisions.




     Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective only to the extent of such prohibition or
unenforceability without invalidating the remainder of such provision or the remaining provisions
or affecting the validity or enforceability of such provision in any other jurisdiction.



Section 13.13 GOVERNING LAW.




     THIS AGREEMENT WAS EXECUTED AND DELIVERED IN NEW YORK CITY, AND SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED,
AND TO BE FULLY PERFORMED, IN SUCH STATE.



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Section 13.14 Counterparts.




     This Agreement and any amendments, waivers, consents or supplements may be executed in any
number of counterparts and by different parties hereto in separate counterparts, each of which when
so executed and delivered shall be deemed an original, but all of which counterparts together shall
constitute but one and the same instrument.



Section 13.15 Obligations with Respect to Loan Parties.




     The obligations of the Borrower to direct or prohibit the taking of certain actions by the
other Loan Parties as specified herein shall be absolute and not subject to any defense the
Borrower may have that the Borrower does not control such Loan Parties.



Section 13.16 Independence of Covenants.




     All covenants hereunder shall be given in any jurisdiction independent effect so that if a
particular action or condition is not permitted by any of such covenants, the fact that it would be
permitted by an exception to, or be otherwise within the limitations of, another covenant shall not
avoid the occurrence of a Default or an Event of Default if such action is taken or condition
exists.



Section 13.17 Limitation of Liability.




     Neither the Administrative Agent nor any Lender, nor any affiliate, officer, director,
employee, attorney, or agent of the Administrative Agent or any Lender shall have any liability
with respect to, and the Borrower hereby waives, releases, and agrees not to sue any of them upon,
any claim for any special, indirect, incidental, or consequential damages suffered or incurred by
the Borrower in connection with, arising out of, or in any way related to, this Agreement or any of
the other Loan Documents, or any of the transactions contemplated by this Agreement or any of the
other Loan Documents. The Borrower hereby waives, releases, and agrees not to sue the
Administrative Agent or any Lender or any of the Administrative Agent’s or any Lender’s affiliates,
officers, directors, employees, attorneys, or agents for punitive damages in respect of any claim
in connection with, arising out of, or in any way related to, this Agreement or any of the other
Loan Documents, or any of the transactions contemplated by this Agreement or financed hereby.



Section 13.18 USA Patriot Act Notice. Compliance.




     The USA Patriot Act of 2001 (Public Law 107-56) and federal regulations issued with respect
thereto require all financial institutions to obtain, verify and record certain information that
identifies individuals or business entities which open an “account” with such financial
institution. Consequently, Administrative Agent, on behalf of itself and Lenders, may from
time-to-time request, and Borrower shall provide to Administrative Agent, Borrower’s name, address,
tax identification number and/or such other identification information as shall be necessary for
Lender to comply with federal law. An “account” for this purpose may include, without limitation,
a deposit account, cash management service, a transaction or asset account, a credit account, a
loan or other extension of credit, and/or other financial services product.



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Section 13.19 Entire Agreement.




     This Agreement, the Notes, and the other Loan Documents referred to herein embody the final,
entire agreement among the parties hereto and supersede any and all prior commitments, agreements,
representations, and understandings, whether written or oral, relating to the subject matter hereof
and thereof and may not be contradicted or varied by evidence of prior, contemporaneous, or
subsequent oral agreements or discussions of the parties hereto. There are no oral agreements
among the parties hereto.



Section 13.20 Construction.




     The Administrative Agent, the Borrower and each Lender acknowledge that each of them has had
the benefit of legal counsel of its own choice and has been afforded an opportunity to review this
Agreement and the other Loan Documents with its legal counsel and that this Agreement and the other
Loan Documents shall be construed as if jointly drafted by the Administrative Agent, the Borrower
and each Lender.



[Signatures on Following Pages]




Page 107









 








     IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to be executed by
their authorized officers all as of the day, month and year first above written.



	 	 	 	 	 	 	 
	 	 	BORROWER:  
	 
	 	 	 	 	 	 
	 	 	EQUITY ONE, INC.,
	 	 	a Maryland corporation
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Howard M. Sipzner	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Howard M. Sipzner	 	 
	 	 	 	 	Executive Vice President and Chief Financial Officer






[Signatures Continued on Next Page]




Page 108









 








[Signature Page to Credit Agreement dated as of

January 17, 2006 with Equity One, Inc.]




	 	 	 	 	 	 	 	 	 
	 	 	WELLS FARGO BANK, NATIONAL ASSOCIATION,
	 	 	as Administrative Agent and as a Lender
	 
	 	 	 	 	 	 	 	 
	 	 	By	 	/s/ Edwin S. Poole III	 	 
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Edwin S. Poole III	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Commitment Amount:
	 
	 	 	 	 	 	 	 	 
	 	 	$33,000,000
	 
	 	 	 	 	 	 	 	 
	 	 	Lending Office (all Types of Loans):
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Wells Fargo Bank, N.A.	 	 
	 	 	 	 	Real Estate Group	 	 
	 	 	 	 	Suite 1450	 	 
	 	 	 	 	401 East Jackson Street	 	 
	 	 	 	 	Tampa, Florida 33602	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Attention: Edwin S. Poole, III	 	 
	 

	 	 	 	 	 	      Senior Relationship Manager	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Tel: (813) 202-7205	 	 
	 	 	 	 	Fax: (813) 202-7201	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	With a copy to:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Wells Fargo Bank, N.A.	 	 
	 	 	 	 	Real Estate Group	 	 
	 	 	 	 	420 Montgomery Street, 6th Floor	 	 
	 	 	 	 	San Francisco, CA 94163	 	 
	 	 	 	 	Attention: Chief Credit Officer	 	 
	 	 	 	 	Fax: (415) 781-8324	 	 






Page 109









 






	 	 	 	 	 	 	 	 	 
	 	 	WACHOVIA BANK,
	 	 	as Co-Syndication Agent and as a Lender
	 
	 	 	 	 	 	 	 	 
	 	 	By	 	/s/ Cynthia A. Bean	 	 
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Cynthia A. Bean	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Commitment Amount:
	 
	 	 	 	 	 	 	 	 
	 	 	$24,000,000
	 
	 	 	 	 	 	 	 	 
	 	 	Lending Office (all Types of Loans):
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	301 S. College St.	 	 
	 	 	 	 	NC - 0172	 	 
	 	 	 	 	Charlotte, NC 28288	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Attention: Cynthia Bean	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Tel: (704) 383 7534	 	 
	 	 	 	 	Fax: (704) 383 6205	 	 






Page 110









 






	 	 	 	 	 	 	 	 	 
	 	 	SUNTRUST BANK,
	 	 	as Co-Syndication Agent and as a Lender
	 
	 	 	 	 	 	 	 	 
	 	 	By	 	/s/ Nancy B. Richards	 	 
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Nancy B. Richards	 	 
	 

	 	 	 	Title:
	 	Senior Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Commitment Amount:
	 
	 	 	 	 	 	 	 	 
	 	 	$24,000,000
	 
	 	 	 	 	 	 	 	 
	 	 	Lending Office (all Types of Loans):
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	SunTrust Bank	 	 
	 	 	 	 	8330 Boone Boulevard, 8th Floor
	 	 	 	 	Vienna, Virginia 22182	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Attention: Nancy Richards	 	 
	 	 	 	 	Tel: (703) 442-1557	 	 
	 	 	 	 	Fax: (703) 442-1570	 	 






Page 111









 






	 	 	 	 	 	 	 	 	 
	 	 	PNC BANK,
	 	 	as Co-Documentation Agent and as a Lender
	 
	 	 	 	 	 	 	 	 
	 	 	By	 	/s/ Tracy Kochanowski	 	 
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Tracy Kochanowski	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Commitment Amount:
	 
	 	 	 	 	 	 	 	 
	 	 	$21,000,000
	 
	 	 	 	 	 	 	 	 
	 	 	Lending Office (all Types of Loans):
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	One PNC Plaza, 249 Fifth Avenue	 	 
	 	 	 	 	Mailstop; P1-POPP-19-2	 	 
	 	 	 	 	Pittsburgh, PA 15222	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Attention: Wayne Robertson	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Tel: 412.762.8452	 	 
	 	 	 	 	Fax: 412.762.6500	 	 






Page 112









 






	 	 	 	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A.
	 	 	as Co-Documentation Agent and as a Lender
	 
	 	 	 	 	 	 	 	 
	 	 	By	 	/s/ Marc E. Costntino	 	 
	 	 	 	 	 
	 

	 	 	 	Name: Marc E. Costntino
	 

	 	 	 	Title:
  Vice President
	 
	 	 	 	 	 	 	 	 
	 	 	Commitment Amount:
	 
	 	 	 	 	 	 	 	 
	 	 	$20,000,000
	 
	 	 	 	 	 	 	 	 
	 	 	Lending Office (all Types of Loans):
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 







	 	 	 	 	 	 	 	 	 
	 

	 	 	 	Attention:	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Tel:	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Fax:	 	 	 	 
	 	 	 	 	 	 	 





Page 113









 






	 	 	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A.,
	 	 	as Managing Agent and as a Lender
	 
	 	 	 	 	 	 	 	 
	 	 	By	 	/s/ Lisa Marti Stevens	 	 
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Lisa Marti Stevens	 	 
	 

	 	 	 	Title:
	 	Senior Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Commitment Amount:
	 
	 	 	 	 	 	 	 	 
	 	 	$17,000,000
	 
	 	 	 	 	 	 	 	 
	 	 	Lending Office (all Types of Loans):
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Bank of America, N.A.	 	 
	 	 	 	 	401 E. Las Olas Blvd., 8th Floor
	 	 	 	 	Ft. Lauderdale, Fl 33301	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Attention: Nancy J. Blackwood	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Tel: (954) 765-2627	 	 
	 	 	 	 	Fax: (954) 765-2164	 	 






Page 114









 






	 	 	 	 	 	 	 	 	 
	 	 	BANK OF MONTREAL,
	 	 	as Managing Agent and as a Lender
	 
	 	 	 	 	 	 	 	 
	 	 	By	 	/s/ David L. Mistic	 	 
	 	 	 	 	 
	 

	 	 	 	Name: David L. Mistic
	 

	 	 	 	Title:   Vice President
	 
	 	 	 	 	 	 	 	 
	 	 	Commitment Amount:
	 
	 	 	 	 	 	 	 	 
	 	 	$17,000,000
	 
	 	 	 	 	 	 	 	 
	 	 	Lending Office (all Types of Loans):
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 






	 	 	 	 	 	 	 	 	 
	 

	 	 	 	Attention:	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Tel:	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Fax:	 	 	 	 
	 	 	 	 	 	 	 





Page 115









 






	 	 	 	 	 	 	 	 	 
	 	 	BRANCH BANKING & TRUST COMPANY,
	 	 	as Managing Agent and as a Lender
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Guy Guenthner	 	 
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Guy Guenthner	 	 
	 

	 	 	 	Title:
	 	Senior Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Commitment Amount:
	 
	 	 	 	 	 	 	 	 
	 	 	$17,000,000
	 
	 	 	 	 	 	 	 	 
	 	 	Lending Office (all Types of Loans):
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Branch Banking & Trust Company	 	 
	 	 	 	 	6550 N. Federal Highway, Suite 500	 	 
	 	 	 	 	Ft. Lauderdale, FL 33308	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Attn: D. Guy Guenthner	 	 
	 	 	 	 	Senior Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Tel: (954) 776-3319	 	 
	 	 	 	 	Fax: (954) 491-7650	 	 






Page 116









 






	 	 	 	 	 	 	 	 	 
	 	 	DEUTSCHE BANK TRUST COMPANY AMERICAS,
	 	 	as a Lender
	 
	 	 	 	 	 	 	 	 
	 	 	By	 	/s/ Steven Lapham	 	 
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Steven Lapham	 	 
	 

	 	 	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By
	 	/s/ Brenda Casey	 	 
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Brenda Casey	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Commitment Amount:
	 
	 	 	 	 	 	 	 	 
	 	 	$15,000,000
	 
	 	 	 	 	 	 	 	 
	 	 	Credit/Business Matters:
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Deutsche Bank Trust Company Activities
	 	 	 	 	200 Crescent Court, Suite 550	 	 
	 	 	 	 	Dallas, Texas 75201	 	 
	 	 	 	 	Attention: Scott Speer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Tel: 214-740-7903	 	 
	 	 	 	 	Fax: 214-740-7910	 	 






Page 117









 






	 	 	 	 	 	 	 	 	 
	 	 	COMERICA BANK,
	 	 	as a Lender
	 
	 	 	 	 	 	 	 	 
	 	 	By	 	/s/ Leslie Vogel	 	 
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Leslie Vogel	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Commitment Amount:
	 
	 	 	 	 	 	 	 	 
	 	 	$15,000,000
	 
	 	 	 	 	 	 	 	 
	 	 	Lending Office (all Types of Loans):
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Comerica Bank	 	 
	 	 	 	 	500 Woodward	 	 
	 	 	 	 	MC 3256	 	 
	 	 	 	 	Detroit, Michigan 48226	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Attention: Betsy Branson	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Tel: 313-222-5878	 	 
	 	 	 	 	Fax: 313-222-3697	 	 






Page 118









 






	 	 	 	 	 	 	 	 	 
	 	 	EUROHYPO AG, New York Branch
	 	 	as a Lender
	 
	 	 	 	 	 	 	 	 
	 	 	By	 	/s/ John Lippman	 	 
	 	 	 	 	 
	 

	 	 	 	Name:
	 	John Lippman	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By
	 	/s/ Stephen Cox	 
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Stephen Cox	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Commitment Amount:
	 
	 	 	 	 	 	 	 	 
	 	 	$15,000,000
	 
	 	 	 	 	 	 	 	 
	 	 	Lending Office (all Types of Loans):
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Head of Portfolio Operations	 	 
	 	 	 	 	Eurohypo AG, New York Branch	 	 
	 	 	 	 	1114 Avenue of the Americas	 	 
	 	 	 	 	New York, NY 10036	 	 
	 	 	 	 	Facsimile: (866) 267-7680	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	with a copy to:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Legal Director	 	 
	 	 	 	 	Eurohypo AG, New York Branch	 	 
	 	 	 	 	1114 Avenue of the Americas	 	 
	 	 	 	 	New York, NY 10036	 	 
	 	 	 	 	Facsimile: (866) 267-7680	 	 






Page 119









 






	 	 	 	 	 	 	 	 	 
	 	 	THE BANK OF TOKYO-MITSUBISHI UFJ, LTD,
	 	 	successor by merger to UFJ Bank Limited,
	 	 	as a Lender
	 
	 	 	 	 	 	 	 	 
	 	 	By	 	/s/ James T. Taylor	 	 
	 	 	 	 	 
	 

	 	 	 	Name:
	 	James T. Taylor	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Commitment Amount:
	 
	 	 	 	 	 	 	 	 
	 	 	$15,000,000






Page 120









 






	 	 	 	 	 	 	 	 	 
	 	 	FIRST HORIZON,
	 	 	as a Lender
	 
	 	 	 	 	 	 	 	 
	 	 	By	 	/s/ J. Jordan O’Neill III	 	 
	 	 	 	 	 
	 

	 	 	 	Name:
	 	J. Jordan O’Neill III	 	 
	 

	 	 	 	Title:
	 	Senior Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Commitment Amount:
	 
	 	 	 	 	 	 	 	 
	 	 	$12,000,000
	 
	 	 	 	 	 	 	 	 
	 	 	Lending Office (all Types of Loans):
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	First Horizon Bank	 	 
	 	 	 	 	1650 Tysons Blvd.	 	 
	 	 	 	 	Suite 1150	 	 
	 	 	 	 	McLean, VA 22102-4875	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Attention: Jordan O’Neil	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Tel: 703-394-2518	 	 
	 	 	 	 	Fax: 703-734-1834	 	 






Page 121









 






	 	 	 	 	 	 	 	 	 
	 	 	REGIONS BANK,
	 	 	as a Lender
	 
	 	 	 	 	 	 	 	 
	 	 	By	 	/s/ Lance Aylsworth	 	 
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Lance Aylsworth	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Commitment Amount:
	 
	 	 	 	 	 	 	 	 
	 	 	$12,000,000
	 
	 	 	 	 	 	 	 	 
	 	 	Lending Office (all Types of Loans):
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Regions Bank	 	 
	 	 	 	 	2800 Ponce De Leon Blvd.	 	 
	 	 	 	 	9th Floor	 	 
	 	 	 	 	Coral Gables, FL 33134	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Attention: Lance Aylsworth	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Tel: (305) 648-7013	 	 
	 	 	 	 	Fax: (305) 774-5189	 	 






Page 122









 






	 	 	 	 	 	 	 	 	 
	 	 	ISRAEL DISCOUNT BANK OF NEW YORK,
	 	 	as a Lender
	 
	 	 	 	 	 	 	 	 
	 	 	By	 	/s/ David Keinan	 	 
	 	 	 	 	 
	 

	 	 	 	Name: David Keinan	 
	 	 	 	 	Title:   Senior Vice President, Regional Manager for FL
	 
	 	 	 	 	 	 	 	 
	 	 	By	 	/s/ Robert R. Munoz	 	 
	 	 	 	 	 
	 

	 	 	 	Name: Robert R. Munoz	 
	 	 	 	 	Title:   Senior Vice President, Chief Lending Officer for FL
	 
	 	 	 	 	 	 	 	 
	 	 	Commitment Amount:
	 
	 	 	 	 	 	 	 	 
	 	 	$9,000,000
	 
	 	 	 	 	 	 	 	 
	 	 	Lending Office (all Types of Loans):
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	18851 NE 19th Av. Suite 600
	 	 	 	 	Aventura, FL 33180	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Attention:
	 	Robert Munoz	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Tel: (305) 682-3781	 	 
	 	 	 	 	Fax: (305) 682-3727	 	 






Page 123









 






	 	 	 	 	 	 	 	 	 
	 	 	CHANG HWA COMMERCIAL BANK, LTD.,
	 	 	as a Lender
	 
	 	 	 	 	 	 	 	 
	 	 	By	 	/s/ Jim C.Y. Chen	 	 
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Jim C.Y. Chen	 	 
	 

	 	 	 	Title:
	 	VP and General Manager	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Commitment Amount:
	 
	 	 	 	 	 	 	 	 
	 	 	$9,000,000
	 
	 	 	 	 	 	 	 	 
	 	 	Lending Office (all Types of Loans):
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Chang Hwa Commercial Bank, Ltd.	 	 
	 	 	 	 	Loan Department	 	 
	 	 	 	 	685 Third Avenue, 29th Floor
	 	 	 	 	New York, NY 10017	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Attention: Danielle Tsai, Loan Officer
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Tel: 212-651-9770 ext. 29	 	 
	 	 	 	 	Fax: 212-651-9785	 	 






Page 124