Exhibit
10.1


Published
CUSIP Number:


REVOLVING
CREDIT AGREEMENT


BY AND
AMONG


SUPER
INTERMEDIATECO LLC,


THE
LENDERS PARTY HERETO,


BANK OF
AMERICA, N.A.,

AS ADMINISTRATIVE AGENT, AND


BANC OF
AMERICA SECURITIES LLC,

AS LEAD ARRANGER


BANC OF
AMERICA SECURITIES LLC,

AS SOLE BOOK MANAGER,


DATED AS
OF APRIL 20, 2007
















	
  1.

  	
  DEFINITIONS

  	
  1

  
	
   

  	
  1.1

  	
  Defined Terms

  	
  1

  
	
   

  	
  1.2

  	
  Other Interpretive Provisions

  	
  20

  
	
   

  	
  1.3

  	
  Accounting Terms

  	
  21

  
	
   

  	
  1.4

  	
  Rounding

  	
  21

  
	
   

  	
  1.5

  	
  Times of Day

  	
  21

  
	
   

  	
  1.6

  	
  Letter of Credit Amounts

  	
  21

  
	
   

  	
  1.7

  	
  Clarification Concerning Calculations for Joint
  Ventures

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  AMOUNT AND TERMS OF LOANS

  	
  22

  
	
   

  	
  2.1

  	
  Revolving Credit Loans

  	
  22

  
	
   

  	
  2.1A

  	
  Swing Loan Commitment

  	
  22

  
	
   

  	
  2.2

  	
  Notes

  	
  24

  
	
   

  	
  2.3

  	
  Procedure for Revolving Credit Loan Borrowings Other
  than Competitive Advances

  	
  24

  
	
   

  	
  2.4

  	
  Competitive Advances

  	
  26

  
	
   

  	
  2.5

  	
  Letters of Credit

  	
  28

  
	
   

  	
  2.6

  	
  Repayment of Loans; Evidence of Debt

  	
  32

  
	
   

  	
  2.7

  	
  Prepayments of the Loans

  	
  32

  
	
   

  	
  2.8

  	
  Conversions

  	
  33

  
	
   

  	
  2.9

  	
  Interest Rate and Payment Dates

  	
  34

  
	
   

  	
  2.10

  	
  Substituted Interest Rate

  	
  35

  
	
   

  	
  2.11

  	
  Taxes; Net Payments

  	
  35

  
	
   

  	
  2.12

  	
  Illegality

  	
  35

  
	
   

  	
  2.13

  	
  Increased Costs

  	
  36

  
	
   

  	
  2.14

  	
  Indemnification for Break Funding Losses

  	
  37

  
	
   

  	
  2.15

  	
  Use of Proceeds

  	
  37

  
	
   

  	
  2.16

  	
  Capital Adequacy

  	
  37

  
	
   

  	
  2.17

  	
  Administrative Agent’s Records

  	
  38

  
	
   

  	
  2.18

  	
  Extension of Maturity Date

  	
  38

  
	
   

  	
  2.19

  	
  Representative of Borrower

  	
  38

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  FEES; PAYMENTS

  	
  38

  
	
   

  	
  3.1

  	
  Fees

  	
  38

  
	
   

  	
  3.2

  	
  Payments; Application of Payments

  	
  39

  
	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  REPRESENTATIONS AND WARRANTIES

  	
  40

  
	
   

  	
  4.1

  	
  Existence and Power

  	
  40

  
	
   

  	
  4.2

  	
  Authority

  	
  40

  
	
   

  	
  4.3

  	
  Binding Agreement

  	
  40

  
	
   

  	
  4.4

  	
  Subsidiaries; DownREIT Partnerships

  	
  40

  
	
   

  	
  4.5

  	
  Litigation

  	
  41

  
	
   

  	
  4.6

  	
  Required Consents

  	
  41

  
	
   

  	
  4.7

  	
  No Conflicting Agreements

  	
  41

  
	
   

  	
  4.8

  	
  Compliance with Applicable Laws

  	
  41

  
	
   

  	
  4.9

  	
  Taxes

  	
  41

  
	
   

  	
  4.10

  	
  Governmental Regulations

  	
  42

  
	
   

  	
  4.11

  	
  Federal Reserve Regulations; Use of Loan Proceeds

  	
  42

  
	
   

  	
  4.12

  	
  Plans; Multiemployer Plans

  	
  42

  
	
   

  	
  4.13

  	
  Financial Statements

  	
  42

  
	
   

  	
  4.14

  	
  Property

  	
  42

  
	
   

  	
  4.15

  	
  Franchises, Intellectual Property, Etc.

  	
  43

  
	
   

  	
  4.16

  	
  Environmental Matters

  	
  43

  
	
   

  	
  4.17

  	
  Labor Relations

  	
  44

  
	
   

  	
  4.18

  	
  [Intentionally Omitted.]

  	
  44

  
	
   

  	
  4.19

  	
  Solvency

  	
  44

  



 



 i
 









 


	
   

  	
  4.20

  	
  REIT Status

  	
  44

  
	
   

  	
  4.21

  	
  List of Unencumbered Assets

  	
  44

  
	
   

  	
  4.22

  	
  Operation of Business

  	
  44

  
	
   

  	
  4.23

  	
  No Misrepresentation

  	
  44

  
	
   

  	
  4.24

  	
  Taxpayer ID

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
  CONDITIONS TO EFFECTIVENESS OF THIS AGREEMENT

  	
  44

  
	
   

  	
  5.1

  	
  Evidence of Action

  	
  45

  
	
   

  	
  5.2

  	
  This Agreement

  	
  45

  
	
   

  	
  5.3

  	
  Notes

  	
  45

  
	
   

  	
  5.4

  	
  Guaranty

  	
  45

  
	
   

  	
  5.5

  	
  Litigation

  	
  46

  
	
   

  	
  5.6

  	
  Opinion of Counsel to the Borrower

  	
  46

  
	
   

  	
  5.7

  	
  Fees

  	
  46

  
	
   

  	
  5.8

  	
  Fees and Expenses of Special Counsel

  	
  46

  
	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
  CONDITIONS OF LENDING – ALL LOANS

  	
  46

  
	
   

  	
  6.1

  	
  Compliance

  	
  46

  
	
   

  	
  6.2

  	
  Loan Closings

  	
  47

  
	
   

  	
  6.3

  	
  Requests

  	
  47

  
	
   

  	
  6.4

  	
  Documentation and Proceedings

  	
  47

  
	
   

  	
  6.5

  	
  Required Acts and Conditions

  	
  47

  
	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
  AFFIRMATIVE COVENANTS

  	
  47

  
	
   

  	
  7.1

  	
  Financial Statements

  	
  47

  
	
   

  	
  7.2

  	
  Certificates; Other Information

  	
  48

  
	
   

  	
  7.3

  	
  Legal Existence

  	
  51

  
	
   

  	
  7.4

  	
  Taxes

  	
  51

  
	
   

  	
  7.5

  	
  Insurance

  	
  51

  
	
   

  	
  7.6

  	
  Payment of Indebtedness and Performance of
  Obligations

  	
  52

  
	
   

  	
  7.7

  	
  Maintenance of Property; Environmental
  Investigations

  	
  52

  
	
   

  	
  7.8

  	
  Observance of Legal Requirements

  	
  52

  
	
   

  	
  7.10

  	
  Licenses, Intellectual Property

  	
  53

  
	
   

  	
  7.11

  	
  Additional Guarantors

  	
  53

  
	
   

  	
  7.12

  	
  REIT Status; Operation of Business

  	
  53

  
	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
  NEGATIVE COVENANTS

  	
  54

  
	
   

  	
  8.1

  	
  Liens

  	
  54

  
	
   

  	
  8.2

  	
  Merger, Consolidation and Certain Dispositions of
  Property

  	
  55

  
	
   

  	
  8.3

  	
  Investments, Loans, Etc.

  	
  56

  
	
   

  	
  8.4

  	
  Business Changes

  	
  58

  
	
   

  	
  8.5

  	
  Amendments to Organizational Documents

  	
  58

  
	
   

  	
  8.6

  	
  Anti-Terrorism Laws; FCPA

  	
  58

  
	
   

  	
  8.7

  	
  Sale and Leaseback

  	
  58

  
	
   

  	
  8.8

  	
  Transactions with Affiliates

  	
  58

  
	
   

  	
  8.9

  	
  Issuance of Additional Capital Stock by Subsidiary
  Guarantors

  	
  58

  
	
   

  	
  8.10

  	
  Hedging Agreements

  	
  59

  
	
   

  	
  8.11

  	
  Restricted Payments

  	
  59

  
	
   

  	
  8.12

  	
  Intentionally Omitted

  	
  59

  
	
   

  	
  8.13

  	
  Fixed Charge Coverage Ratio

  	
  59

  
	
   

  	
  8.14

  	
  Minimum Tangible Net Worth

  	
  59

  
	
   

  	
  8.15

  	
  Total Indebtedness to Total Assets; Secured
  Indebtedness to Total Assets

  	
  59

  
	
   

  	
  8.16

  	
  Indebtedness to Unencumbered Assets Ratio

  	
  60

  
	
   

  	
  8.17

  	
  Maximum Book Value of Ancillary Assets

  	
  60

  
	
   

  	
  8.18

  	
  Development Activity

  	
  60

  



 



 ii
 









 


	
  9.

  	
  DEFAULT

  	
  60

  
	
   

  	
  9.1

  	
  Events of Default

  	
  60

  
	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
  THE AGENT

  	
  63

  
	
   

  	
  10.1

  	
  Appointment and Authority

  	
  63

  
	
   

  	
  10.2

  	
  Rights as a Lender

  	
  63

  
	
   

  	
  10.3

  	
  Exculpatory Provisions

  	
  63

  
	
   

  	
  10.4

  	
  Reliance by Administrative Agent

  	
  64

  
	
   

  	
  10.5

  	
  Notice of Default

  	
  64

  
	
   

  	
  10.6

  	
  Delegation of Duties

  	
  64

  
	
   

  	
  10.7

  	
  Indemnification

  	
  65

  
	
   

  	
  10.8

  	
  Successor Administrative Agent

  	
  65

  
	
   

  	
  10.9

  	
  Non-Reliance on Administrative Agent and Other
  Lenders

  	
  66

  
	
   

  	
  10.10

  	
  No Other Duties, Etc.

  	
  66

  
	
   

  	
  10.11

  	
  Administrative Agent May File Proofs of Claim

  	
  66

  
	
   

  	
  10.12

  	
  Guaranty Matters

  	
  67

  
	
   

  	
   

  	
   

  	
   

  
	
  11.

  	
  OTHER PROVISIONS

  	
  67

  
	
   

  	
  11.1

  	
  Amendments and Waivers

  	
  67

  
	
   

  	
  11.2

  	
  Notices

  	
  68

  
	
   

  	
  11.3

  	
  No Waiver; Cumulative Remedies

  	
  69

  
	
   

  	
  11.4

  	
  Survival of Representations and Warranties

  	
  69

  
	
   

  	
  11.5

  	
  Payment of Expenses and Taxes

  	
  69

  
	
   

  	
  11.6

  	
  Lending Offices

  	
  70

  
	
   

  	
  11.7

  	
  Successors and Assigns

  	
  70

  
	
   

  	
  11.8

  	
  [Intentionally Omitted]

  	
  74

  
	
   

  	
  11.9

  	
  Counterparts; Integration; Effectiveness

  	
  74

  
	
   

  	
  11.10

  	
  Adjustments; Set-off

  	
  75

  
	
   

  	
  11.11

  	
  Lenders’ Representations

  	
  75

  
	
   

  	
  11.12

  	
  Indemnity

  	
  76

  
	
   

  	
  11.13

  	
  Governing Law

  	
  76

  
	
   

  	
  11.14

  	
  Headings Descriptive

  	
  76

  
	
   

  	
  11.15

  	
  Severability

  	
  76

  
	
   

  	
  11.16

  	
  Confidential Information

  	
  76

  
	
   

  	
  11.17

  	
  Consent to Jurisdiction

  	
  77

  
	
   

  	
  11.18

  	
  Service of Process

  	
  77

  
	
   

  	
  11.19

  	
  No Limitation on Service or Suit

  	
  77

  
	
   

  	
  11.20

  	
  WAIVER OF TRIAL BY JURY

  	
  77

  
	
   

  	
  11.21

  	
  Termination

  	
  78

  
	
   

  	
  11.22

  	
  Replacement Notes

  	
  78

  
	
   

  	
  11.23

  	
  USA PATRIOT Act Notice

  	
  78

  
	
   

  	
  11.24

  	
  Replacement of Lenders

  	
  78

  
	
   

  	
  11.25

  	
  No Advisory or Fiduciary Relationships

  	
  79

  



 



 iii
 









 


	
  LIST OF EXHIBITS
  AND SCHEDULES

  
	
   

  
	
  EXHIBITS:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  -

  	
  Assignment and Assumption

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit B

  	
  -

  	
  Borrowing Request

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit C

  	
  -

  	
  Commitments and Domestic LIBOR Lending Offices

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit D

  	
  -

  	
  Competitive Advance Note

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit E

  	
  -

  	
  Competitive Bid

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit F

  	
  -

  	
  Competitive Bid Request

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit G

  	
  -

  	
  Compliance Certificate

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit H

  	
  -

  	
  Guaranty

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit I-

  	
  -

  	
  Reserved

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit J

  	
  -

  	
  Swing Loan Note

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit K

  	
  -

  	
  Revolving Credit Note

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit L

  	
  -

  	
  Letter of Credit Request

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit M

  	
  -

  	
  Form of Notice of Conversion

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit N

  	
  -

  	
  Reserved

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit O

  	
  -

  	
  Secretary’s Certificate Borrower

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit P

  	
  -

  	
  Secretary’s Certificate Guarantor

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SCHEDULES:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 1.1

  	
  -

  	
  Closing Date Approved Management Contracts

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 1.2

  	
  -

  	
  Existing Letters of Credit

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 4.4

  	
  -

  	
  Subsidiaries (including Subsidiary Guarantors)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 4.5

  	
  -

  	
  Litigation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 4.12

  	
  -

  	
  Plans

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 4.21

  	
  -

  	
  List of Unencumbered Assets

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 11.2

  	
  -

  	
  Notice Addresses

  	
   

  



 



 iv















REVOLVING
CREDIT AGREEMENT, dated as of April 20, 2007, by and among SUPER INTERMEDIATECO
LLC, a Maryland limited liability company (the “Borrower”), each lender party
hereto or which becomes a “Lender” pursuant to the provisions of Section 11.7
(each a “Lender” and, collectively, the “Lenders”), and BANK OF AMERICA, N.A. (“Bank
of America”), as administrative agent for the Lenders (in such capacity, the “Administrative
Agent”).


RECITALS


WHEREAS,
the Borrower and the Subsidiary Guarantors have requested that the Lenders
provide a revolving credit facility for the purposes set forth herein; and


WHEREAS,
the Lenders have agreed to make the requested facility available on the terms
and conditions set forth herein;


NOW,
THEREFORE, in consideration of these premises and the mutual covenants and
agreements contained herein, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto covenant and agree as follows:


1.                                       DEFINITIONS


1.1                                 Defined  Terms.


As
used in this Agreement, terms defined in the preamble have the meanings therein
indicated, and the following terms have the following meanings:


“Absolute
Rate Bid”:  as defined in Section
2.4(b).


“Accountants”:  any of PricewaterhouseCoopers LLP; Deloitte
& Touche LLP; Ernst & Young LLP; KPMG LLP; or any successor to any of
the foregoing; or such other firm of certified public accountants selected by
the Borrower and satisfactory to the Administrative Agent.


“Adjusted
Consolidated Total Assets”: 
determined on a Consolidated basis in accordance with GAAP for Borrower
and its Subsidiaries, the sum (without duplication) of the following:


(a)                                  the
Operating Property Value; plus


(b)                                 the
book value of Land Assets, Redevelopment Assets, and Notes Receivable of
Borrower and its Subsidiaries (including, without limitation, all capitalized
costs incurred in connection therewith) on the last day of the fiscal quarter
just ended; plus


(c)                                  the
aggregate amount of the unpledged portion of (i) all unrestricted cash and
marketable securities of Borrower and its Subsidiaries (including, without
limitation, Investments described in Section 8.3(a) through (f)) plus
(ii) all restricted cash held by any Person serving as a “qualified
intermediary” for purposes of an exchange pursuant to Section 1031 of the Code
on behalf of Borrower or any of its Subsidiaries; plus


(d)                                 the
book value of properties acquired during the previous 12 months (until the
one-year anniversary date for acquired properties) and New Construction Assets
valued at cost; plus


(e)                                  the
Management Fee Value.


Adjusted
Consolidated Total Assets shall be calculated on a pro forma basis as if assets
acquired during the relevant period were owned as of the beginning of the
relevant period, and all assets disposed of during the relevant period were not
owned during any portion of the relevant period.



 1
 









“Adjusted
Net Operating Income”:  for any
period, the aggregate amount of the Net Operating Income from each Unencumbered
Asset or Operating Property, as applicable, during such period, less the
Capital Expense Reserve for such Unencumbered Asset or Operating Property, as
applicable, during such period.


“Administrative
Agent’s Office”: the Administrative Agent’s address as set forth in Section
11.2, or such other address as the Administrative Agent may from time to time notify
to the Borrower and the Lenders.


“Administrative
Questionnaire”: an Administrative Questionnaire in a form supplied by the
Administrative Agent.


“Advance”:  a Prime Rate Loan, a LIBOR Loan or a
Competitive Advance, as the case may be.


“Affected
Advance”:  as defined in Section
2.10.


“Affected
Principal Amount”:  in the event that
(a) the Borrower shall fail for any reason to borrow or convert into a LIBOR
Loan after it shall have notified the Administrative Agent of its intent to do
so (whether it shall have requested a LIBOR Loan on the Effective Date or
pursuant to Section 2.3 or 2.8, or a Swing Loan pursuant to Section 2.1A, or
shall have accepted one or more offers of Competitive Advances under Section
2.4), an amount equal to the principal amount of such LIBOR Loan, Swing Loan or
Competitive Advance; (b) a LIBOR Loan, Swing Loan or Competitive Advance shall
terminate for any reason prior to the last day of the Interest Period
applicable thereto, an amount equal to the principal amount of such LIBOR Loan,
Swing Loan or Competitive Advance; or (c) the Borrower shall prepay or repay
all or any part of the principal amount of a LIBOR Loan, Swing Loan or
Competitive Advance prior to the last day of the Interest Period applicable
thereto (including, without limitation, any mandatory prepayment or a
prepayment resulting from acceleration or illegality), an amount equal to the
principal amount of such LIBOR Loan, Swing Loan or Competitive Advance so
prepaid or repaid.


“Affiliate”:  as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such Person.  For purposes
of this definition, control of a Person shall mean the power, direct or
indirect, (i) to vote 10% or more of the securities having ordinary voting
power for the election of directors of such Person or (ii) to direct or cause
the direction of the management and policies of such Person, whether by
contract or otherwise.


“Agreement”:  this Revolving Credit Agreement, as the same
may be from time to time amended, supplemented or otherwise modified from time
to time.


“Agreement
Regarding Fees”:  that certain
Agreement Regarding Fees dated April 20, 2007 among Bank of America, Banc of
America Securities LLC and the Borrower.


“Ancillary
Assets”:  at any time (without
duplication), (a) all Real Property of the Borrower and its Subsidiaries which
is (i) a mortgage, (ii) a New Construction Asset, or (iii) any other Real
Property other than an open air shopping center or a single tenant retail
property, and (b) all Investments of the Borrower and its Subsidiaries of the
type described in Section 8.3(h) and (q), including, without limitation, all
Investments of the Borrower and its Subsidiaries in any FIN 46 Entities.


“Applicable
Lending Office”:  (a) in respect of
any Lender, (i) in the case of such Lender’s Prime Rate Loans and Competitive
Advances, its Domestic Lending Office and (ii) in the case of such Lender’s
LIBOR Loans, its LIBOR Lending Office, and (b) in respect of the Swing Loan
Lender and the Issuing Lender, the Domestic Lending Office of each thereof.


“Applicable
Margin”:  (a) with respect to the
unpaid principal balance of Prime Rate Loans or LIBOR Loans, at all times
during which the applicable Pricing Level set forth below is in effect, (b)
with respect to the calculation of the Facility Fee pursuant to Section 3.1, at
all times during which the applicable Pricing Level set forth below is in
effect (the “Applicable Facility Fee Percentage”), and (c) with respect to the
calculation of the Letter of Credit Commission Fees pursuant to Section 2.5(f),
at all times during which the applicable Pricing Level set forth below is in
effect, the respective percentage set forth below next to such Pricing Level:



 2
 









 


	
  Pricing Level

  	
   

  	
  LIBOR Loans/

  Letter of Credit 

  Commission Fee

  	
   

  	
  Prime Rate Loans

  	
   

  	
  Applicable Facility Fee 

  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Pricing Level I

  	
   

  	
  0.375

  	
  %

  	
  0

  	
  %

  	
  0.125

  	
  %

  
	
  Pricing Level II

  	
   

  	
  0.425

  	
  %

  	
  0

  	
  %

  	
  0.150

  	
  %

  
	
  Pricing Level
  III

  	
   

  	
  0.550

  	
  %

  	
  0

  	
  %

  	
  0.150

  	
  %

  
	
  Pricing Level IV

  	
   

  	
  0.750

  	
  %

  	
  0

  	
  %

  	
  0.200

  	
  %

  
	
  Pricing Level V

  	
   

  	
  1.000

  	
  %

  	
  0.250

  	
  %

  	
  0.250

  	
  %

  



 


Changes in the
Applicable Margin resulting from a change in a Pricing Level shall become
effective as of the opening of business upon the date of any change in the
Senior Debt Rating of the Borrower, as determined by S&P, Moody’s and/or
Fitch, as the case may be, which would affect the applicable Pricing Level.


“Approved
Fund”: means any Fund that is administered or managed by (a) a Lender, (b)
an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.


“Approved
Management Contracts”:  those
contracts listed on Schedule 1.1 attached hereto and any other property
management contracts between the Borrower or one of its consolidated Subsidiaries
and a third party (a) in which the Borrower or one of its consolidated
Subsidiaries has an equity ownership interest, or (b) that has been approved by
the Administrative Agent in its reasonable discretion.


“Assignment
and Assumption Agreement”:  an assignment
and assumption entered into by a Lender and an assignee (with the consent of
any party whose consent is required by Section 11.7), and accepted by the
Administrative Agent, in substantially the form of Exhibit A or any
other form approved by the Administrative Agent.


“Assignee
Group”: means two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same investment advisor.


“Authorized
Signatory”:  the chairman of the
board, the chief executive officer, the president, any executive vice
president, the Chief Financial Officer or any other duly authorized officer
(acceptable to the Administrative Agent) of the Borrower.


“Available
Commitment Amount”: on any day, an amount equal to the Total Commitment Amount
at such time minus the total of all Competitive Advances outstanding on such
date.


“Bank
of America”:  Bank of America, N.A.


“BAS”:  Banc of America Securities LLC, in its
capacity as Lead Arranger and Book Manager.


“Benefited
Lender”:  as defined in Section
11.10.


“Borrower
Materials”: as defined in Section 7.2.


“Borrower’s
Interest”:  for any period, (a) with
respect to Unencumbered Assets or Operating Properties, as applicable, owned by
a DownREIT Partnership or a wholly owned Subsidiary of a DownREIT Partnership,
a fraction, expressed as a percentage, the numerator of which is the Net
Operating Income of such Unencumbered Assets or Operating Properties, as
applicable, for such period, less any distributions required to be made,
directly or indirectly, to partners or members of such DownREIT Partnership,
other than the Borrower and its Subsidiaries, and the denominator of which is
the Net Operating Income of such Unencumbered Assets or Operating Properties,
as applicable, for such period, and (b) with respect to any Ancillary Asset or
Redevelopment Asset, the Borrower’s pro rata share (based on its beneficial
ownership (direct or indirect) of the applicable Person holding such asset(s))
of the applicable amount being calculated for such period.



 3
 









“Borrowing
Date”:  any Business Day specified in
a Borrowing Request delivered pursuant to Sections 2.1, 2.1A or 2.3, or in a
Competitive Bid Request delivered pursuant Section 2.4, as the case may be, as
a date on which the Borrower requests the Lenders or the Swingline Lender to
make Loans.


“Borrowing
Request”:  a borrowing request in the
form of Exhibit B hereto.


“Business
Day”:  any day other than a Saturday,
Sunday or other day on which commercial banks are authorized to close under the
Laws of, or are in fact closed in, the state where the Administrative Agent’s
Office is located and, if such day relates to any LIBOR Loan, means any such
day on which dealings in Dollar deposits are conducted by and between banks in
the London interbank eurodollar market.


“Capital
Expense Reserve”:  during any period,
with respect to each Unencumbered Asset or Operating Property, as applicable,
an amount equal to (a) a per annum rate of $.15, multiplied by (b) the total
Net Rentable Area of such Unencumbered Asset or Operating Property, as
applicable (in each case whether or not such reserves are actually established
by the Borrower).


“Capital
Leases”:  leases which have been, or
under GAAP are required to be, capitalized.


“Cash
Collateralize”:  to pledge and
deposit with or deliver to Administrative Agent, for the benefit of Issuing
Lender and the Lenders, as collateral for the Letter of Credit Exposure, cash
or deposit account balances pursuant to documentation in form and substance
satisfactory to Administrative Agent and Issuing Lender (which documents are
hereby consented to by the Lenders). 
Borrower hereby grants Administrative Agent, for the ratable benefit of
the Issuing Lender and Lenders, a first priority lien on all such cash and
deposit account balances.  Cash collateral
shall be maintained in blocked, non-interest bearing deposit accounts at
Administrative Agent.


“Change
of Control”:  the occurrence of any
one of the following events (other than as a direct result of the Liquidation):


(a)                                  any
Person or Persons acting as a group shall acquire direct or indirect ownership
of 30% or more of the Borrower’s common Stock; or


(b)                                 during
any twelve month period on or after the Effective Date, individuals who at the
beginning of such period constituted the Board of Directors of the Borrower
(together with any new directors whose election by the Board of Directors or
whose nomination for election by the shareholders of the Borrower was approved
by a vote of at least a majority of the members of the Board of Directors then
in office who either were members of the Board of Directors at the beginning of
such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the members of the
Board of Directors then in office; or


(c)                                  there
occurs a change of control of the Borrower of a nature that would be required
to be reported in response to Item 5.01 of Form 8-K in effect on the date
hereof (or any successor provision) filed pursuant to Section 13 or 15 under
the Securities Exchange Act of 1934, or in any other filing by the Borrower
with the Securities and Exchange Commission; or


(d)                                 the
Borrower consolidates with, is acquired by, or merges into or with any Person
(other than a merger or consolidation permitted by Section 8.2).


“Chief
Financial Officer”:  at any time, the
chief financial officer of the Borrower, or if the Borrower does not have a
chief financial officer at such time, the officer designated by the Borrower as
its principal financial officer or such other officer of the Borrower that is
acceptable to the Administrative Agent.


“Code”:  the Internal Revenue Code of 1986, as the
same may be amended from time to time, or any successor thereto, and the rules
and regulations issued thereunder, as from time to time in effect.


“Commitment”:  in respect of any Lender, such Lender’s
undertaking to make Loans (other than Swing Loans), or purchase participations
or subparticipations in Letters of Credit issued by the Issuing Lender or
purchase 



 4
 









participations in
Swing Loans to the Borrower, subject to the terms and conditions hereof, in an
aggregate outstanding principal amount not exceeding such Lender’s Commitment
Amount.


“Commitment
Amount”:  the amount set forth next
to the name of such Lender in Exhibit C under the heading “Commitments”
as such Lender’s Commitment Amount, as the same may be reduced pursuant to
Section 2.3(g) and as the same may otherwise be changed in accordance with the
terms of this Agreement.


“Commitment
Percentage”:  on any day, and as to
any Lender, the quotient of (a) such Lender’s Commitment Amount on such day,
divided by (b) the Commitment Amounts of all Lenders on such day.


“Competitive
Advance”: means an Advance made to Borrower by any Lender not determined by
that Lender’s Commitment Percentage pursuant to Section 2.4.


“Competitive
Advance Note”: means the promissory note made by Borrower in favor of a
Lender to evidence the Competitive Advances made by that Lender, substantially
in the form of Exhibit D, either as originally executed or as the
same may from time to time be supplemented, modified, amended, renewed,
extended or supplanted.


“Competitive
Bid”: means a written bid to provide a Competitive Advance substantially in
the form of Exhibit E, signed by a Responsible Official of a Lender
and properly completed to provide all information required to be included
therein.


“Competitive
Bid Request”: means a written request submitted by Borrower to the
Administrative Agent to provide a Competitive Bid, substantially in the form of
Exhibit F signed by an Authorized Signatory of Borrower and
properly completed to provide all information required to be included therein.


“Compliance
Certificate”:  a certificate
substantially in the form of Exhibit G.


“Consolidated”:  the Borrower and its Subsidiaries which are
consolidated for financial reporting purposes. 
Notwithstanding anything contained herein to the contrary, for purposes
of this Agreement, the phrase “Borrower and its Subsidiaries determined on a
Consolidated basis in accordance with GAAP” (and similar phrases having the
same meaning) shall not be deemed to include the consolidation of FIN 46
Entities (other than the inclusion of the applicable pro-rata share of assets,
liabilities, income or loss attributable to such FIN 46 Entities to the extent
required pursuant to this Agreement).


“Consolidated
EBITDA”:  with respect to any period
an amount equal to the EBITDA of Borrower and its Subsidiaries for such period,
determined on a Consolidated basis in accordance with GAAP.


“Consolidated
Fixed Charges”:  during any period,
the sum of each of the following with respect to the Borrower and its
Subsidiaries (without duplication), determined on a Consolidated basis in
accordance with GAAP:  (a) the aggregate
amount of all interest expense, both expensed and capitalized (including
Consolidated Interest Expense) for such period, (b) the aggregate of all
scheduled principal amounts that become payable during such period in respect
of any Indebtedness of the Borrower or its Subsidiaries (excluding balloon
payments at maturity) and (c) the aggregate amount of all cash dividends paid
during such period in respect of preferred equity of the Borrower or its
Subsidiaries (including, without limitation, in respect of preferred operating
units).


“Consolidated
Interest Expense”:  for any period,
interest and fees accrued, accreted or paid by the Borrower and its
Subsidiaries during such period in respect of Consolidated Total Indebtedness,
determined in accordance with GAAP, including (a) the amortization of debt
discounts to the extent included in interest expense in accordance with GAAP,
(b) the amortization of all fees (including fees with respect to Hedging
Agreements entered into by the Borrower or any of its Subsidiaries) payable in
connection with the incurrence of any Indebtedness to the extent included in
interest expense in accordance with GAAP and (c) the portion of any rents
payable under capital leases allocable to interest expense in accordance with
GAAP.


“Consolidated
Total Indebtedness”:  as of any date,
the aggregate principal amount of all
Indebtedness of the Borrower and its Subsidiaries determined on a Consolidated
basis in accordance with GAAP, plus, if not otherwise required to be reflected
in the Borrower’s Consolidated balance sheet (and without duplication) 



 5
 









(a) Contingent Obligations of the Borrower and its Subsidiaries on such
date which are required in accordance with GAAP to be disclosed in a footnote
to any such balance sheet, and (b) any guarantee (other than guarantees of
carve-outs that constitute Non-Recourse Exclusions until a claim is made with
respect thereto, and then only to the extent of the amount of such claim) by
the Borrower of any Indebtedness of an unconsolidated Subsidiary or Joint
Venture in which the Borrower is a direct or indirect investor (to the full
extent of the amount of such guaranteed Indebtedness on such date); provided,
however, that with respect to any Joint Ventures in which Borrower is a
direct or indirect investor that are not consolidated in the Borrower’s
Consolidated balance sheet or any Joint Ventures that are FIN 46 Entities,
Consolidated Total Indebtedness shall, in any case, (x) include (but without
duplication) (i) the aggregate principal amount of all Indebtedness of such
Joint Ventures that is recourse (other
than guarantees of carve-outs that constitute Non-Recourse Exclusions until a
claim is made with respect thereto, and then only to the extent of the amount
of such claim) to the Borrower or one of its Subsidiaries, and (ii)
Borrower’s pro rata share (as calculated in accordance with Section 1.7) of the
aggregate principal amount of all Indebtedness of such Joint Ventures that is
Non-Recourse Indebtedness, and (y) exclude all other Indebtedness of such Joint
Ventures.  Notwithstanding the foregoing,
unfunded portions of the Total Commitment Amount or of any other Indebtedness
(and any Contingent Obligations relating solely to such unfunded amounts) shall
not be included in Consolidated Total Indebtedness.


“Contingent
Obligation”:  as to any Person, any
obligation of such Person guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (“Primary Obligations”) of
any other Person (the “Primary Obligor”) in any manner, whether directly or
indirectly, and whether arising from partnership or keep-well agreements,
including, without limitation, any obligation of such Person, whether
contingent or not contingent (without duplication) (a) to purchase any such
Primary Obligation or any Property constituting direct or indirect security
therefor, (b) to advance or supply funds (i) for the purchase or payment of any
such Primary Obligation or (ii) to maintain working capital or equity capital
of the Primary Obligor or otherwise to maintain net worth, solvency or other financial
statement condition of the Primary Obligor, (c) to purchase Property,
securities or services primarily for the purpose of assuring the beneficiary of
any such Primary Obligation of the ability of the Primary Obligor to make
payment of such Primary Obligation, or (d) otherwise to assure, protect from
loss or hold harmless the beneficiary of such Primary Obligation against loss
in respect thereof; provided, however, that the term Contingent Obligation
shall not include (x) the endorsement of instruments for deposit or
collection in the ordinary course of business, (y) guarantees or
carve-outs that constitute Non-Recourse Exclusions until a claim is made with
respect thereto, and then shall be included only to the extent of the amount of
such claim or (z) commitments to make capital contributions to Joint
Ventures.  The term Contingent Obligation
shall also include the liability of a general partner in respect of the
liabilities of the partnership in which it is a general partner, but shall not
include the liability of a member (managing or otherwise) of a limited
liability company in respect of the liabilities of such limited liability
company to the extent not imposed by agreement or by law.  The amount of any Contingent Obligation of a
Person shall be deemed to be an amount equal to the stated or determinable
amount of the Primary Obligation in respect of which such Contingent Obligation
is made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by such Person in good faith.


“Conversion
Date”:  the date on which a LIBOR
Loan is converted to a Prime Rate Loan, or the date on which a Prime Rate Loan
is converted to a LIBOR Loan, or the date on which a LIBOR Loan is converted to
a new LIBOR Loan, all in accordance with Section 2.8.


“Credit
Party”:  the Administrative Agent,
the Lead Arranger, each Lender, the Swing Loan Lender, the Issuing Lender, the
Book Manager and their successors and assigns.


“Default”:  any event or condition which constitutes an
Event of Default or which, with the giving of notice, the lapse of time, or any
other condition, would, unless cured or waived, become an Event of Default.


“Defaulting
Lender”:  at any time, any Lender
that, at such time, (a) has failed to comply with any of its obligations to
make a Loan, fund its share of any payment made by the Issuing Lender pursuant
to a Letter of Credit or acquire a participation in any Swing Loan as required
pursuant to this Agreement within one (1) Business Day of the date required to
be funded by it hereunder unless such failure has been cured, (b) has failed to
pay to the Administrative Agent or any Lender any other amount owed by such
Lender pursuant to the terms of this Agreement or any of the other Loan
Documents within one (1) Business Day of the date when due, unless the subject
of a good faith dispute unless such failure has been cured, or (c) has been
deemed insolvent or become subject to a bankruptcy or insolvency proceeding.



 6
 









“Dollars”
and “$”:  lawful currency of the United
States of America.


“Domestic
Lending Office”:  in respect of any
Lender, the Swing Loan Lender and the Issuing Lender, initially, the office or
offices of such Lender, the Swing Loan Lender and the Issuing Lender,
designated as such on Exhibit C; thereafter, such other office of such
Lender, the Swing Loan Lender and the Issuing Lender, through which it shall be
making or maintaining Prime Rate Loans, making Swing Loans or issuing Letters
of Credit, as reported by such Lender, the Swing Loan Lender and the Issuing
Lender, to the Administrative Agent and the Borrower.


“Domestic
Reference Lender”:  Bank of America
or such other Lender as may become the Administrative Agent hereunder.


“DownREIT
Partnership”:  Excel Realty Partners,
L.P. and any other partnership or limited liability company hereafter created
by the Borrower for the purpose of acquiring assets qualifying as “real estate
assets” under Section 856(c) of the Code through the issuance of partnership or
limited liability company units in such partnership or limited liability
company to third parties, provided that, in the case of each such entity
(including Excel Realty Partners, L.P.) (a) the Borrower or a wholly owned
Subsidiary of the Borrower is the sole general partner or managing member of
such partnership or limited liability company, as the case may be, and (b) the
Borrower or such wholly owned
Subsidiary shall be entitled to receive not less than 95% of the net income and
gains before depreciation, if any, from such partnership or limited liability
company after the limited partners or non-managing members of such
partnership or limited liability company receive a stipulated distribution. Any
partnership or limited liability company created after the Effective Date must
be approved by the Administrative Agent as a “DownREIT Partnership” for
purposes of being included in this definition.


“EBITDA”:  with respect to a Person or a Subsidiary of a
Person (or any asset of a Person or a Subsidiary of such Person) for any
period, an amount equal to the sum of (a) the net income (or loss) of such
Person (or attributable to such asset) for such period plus (b)
depreciation and amortization, interest, and any extraordinary or non-recurring
losses or charges for impairment of real estate deducted in calculating such
net income minus (c) any extraordinary or non-recurring gains included
in calculating such net income, all as determined in accordance with GAAP.  EBITDA shall be calculated on a
pro forma basis as if assets acquired during the relevant period were
owned as of the beginning of the relevant period, and all assets disposed of
during the relevant period were not owned during any portion of the relevant
period.  Adjustments for unconsolidated
partnerships, Joint Ventures and FIN 46 Entities will be calculated to reflect
EBITDA on the same basis.


“Effective
Date”:  the date of this Agreement.


“EITF
04-05”:  Emerging Issues Task Force
Consensus on Issue No. 04-05, “Determining Whether a General Partner, or
the General Partners as a Group, Controls a Limited Partnership or Similar
Entity When the Limited Partners Have Certain Rights” as adopted in July, 2005
by the Emerging Issues Task Force created by the Financial Accounting Standards
Board.


“Eligible
Assignee”:  any Person that meets the
requirements to be an assignee under Section 11.7(b)(iii), (v) and (vi)
(subject to such consents, if any, as may be required under Section
11.7(b)(iii)).


“Environmental
Laws”:  any and all federal, state
and local laws relating to the environment, the use, storage, transporting,
manufacturing, handling, discharge, disposal or recycling of hazardous
substances, materials or pollutants or industrial hygiene and including,
without limitation, (a) the Comprehensive Environmental Response, Compensation
and Liability Act, as amended, 42 USCA §9601 et seq.; (b) the Resource
Conservation and Recovery Act of 1976, as amended, 42 USCA §6901 et seq.; (c)
the Toxic Substance Control Act, as amended, 15 USCA §2601 et seq.; (d) the
Water Pollution Control Act, as amended, 33 USCA §1251 et seq.; (e) the Clean
Air Act, as amended, 42 USCA §7401 et seq.; (f) the Hazardous Material
Transportation Act, as amended, 49 USCA §1801 et seq. and (g) all rules,
regulations, judgments, decrees, injunctions and restrictions thereunder and
any analogous state law.


“Environmental
Risk Property”:  any Real Property of
the Borrower, a Subsidiary, a DownREIT Partnership or a Subsidiary of a
DownREIT Partnership in respect of which, at any time:



 7
 









(a)                                  Hazardous
Substances are (i) generated or manufactured on, transported to or from,
treated at, stored at or discharged from such Real Property in violation of any
Environmental Laws; (ii) discharged into subsurface waters under such Real
Property in violation of any Environmental Laws; or (iii) discharged from such
Real Property on or into property or waters (including subsurface waters)
adjacent to such Real Property in violation of any Environmental Laws, and any
of the foregoing events in (i), (ii) or (iii) has an Adverse Environmental
Impact; or


(b)                                 there
exists with respect to such Real Property (i) a claim, demand, suit, action,
proceeding, condition, report, directive, lien, violation, or non-compliance
concerning any liability (including, without limitation, potential liability
for enforcement, investigatory costs, cleanup costs, government response costs,
removal costs, remedial costs, natural resources damages, property damages,
personal injuries or penalties) arising in connection with:  (x) any non-compliance with or
violation of the requirements of any applicable Environmental Laws, or (y) the
presence of any Hazardous Substance on such Real Property or the release of any
Hazardous Substance into the environment from such Real Property, or (ii) any
actual liability in connection with the presence of any Hazardous Substance on
such Real Property or the release of any Hazardous Substance into the
environment from such Real Property, and any of the foregoing events in (i) or
(ii) has an Adverse Environmental Impact.


For purposes of
this definition, the term “Adverse Environmental Impact” shall mean any
event described in clauses (i), (ii) or (iii) of paragraph (a) above or clauses
(i) or (ii) of paragraph (b) above which could reasonably be expected to have a
material adverse effect on (1) the value of such Real Property, (2) the
marketability of such Real Property, or (3) the ability to finance or refinance
such Real Property.


“ERISA”:  the Employee Retirement Income Security Act
of 1974, as amended from time to time, and the rules and regulations issued
thereunder, as from time to time in effect.


“ERISA
Affiliate”:  any Person which is a
member of any group of organizations (a) described in Section 414(b) or (c) of
the Code of which the Borrower is a member, or (b) solely for purposes of
potential liability under Section 302(c)(11) of ERISA and Section 412(c)(11) of
the Code and the Lien created under Section 302(f) of ERISA and Section 412(n)
of the Code, described in Section 414(m) or (o) of the Code of which the
Borrower is a member.


“ERISA
Liabilities”:  without duplication,
the aggregate of all unfunded vested benefits under all Plans and all potential
withdrawal liabilities under all Multiemployer Plans.


“Event
of Default”:  any of the events
specified in Section 9, provided that any requirement for the giving of notice,
the lapse of time or any other condition specified in Section 9 has
occurred or been satisfied.


“Excepted
Mortgage Indebtedness”: means any mortgage Indebtedness of the Borrower or
any of its Subsidiaries pursuant to which a default or event of default has
arisen solely as a result of the Merger or Liquidation and the transactions
related thereto but which has not been accelerated or otherwise the subject of
a demand in accordance with the terms of such indebtedness for prepayment prior
to maturity.


“Excluded
Subsidiary”:  (a) any DownREIT
Partnership and any wholly owned Subsidiary of a DownREIT Partnership, (b) CA
New Plan Fixed Rate Partnership, L.P., a Delaware limited partnership, and (c)
any other Subsidiary, other than a wholly-owned Subsidiary that owns an
Unencumbered Asset.


“Existing
Letters of Credit”:  those certain
Letters of Credit outstanding on the Effective Date which were issued pursuant
to the Replaced Credit Agreement as more particularly described on Schedule
1.2 attached hereto and by this reference incorporated herein.


“FAS
141”:  Financial Accounting Standard
141 entitled “Business Combinations” adopted by the Financial Accounting
Standards Board, as the same may be amended, modified or supplemented from time
to time.


“Facility
Fee”:  as defined in Section 3.1.



 8
 









“Federal
Funds Rate”:  for any day, the rate
per annum equal to the weighted average of the rates on overnight federal funds
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 as so
published on the next succeeding 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 (rounded upward, if necessary, to a whole
multiple of 1/100 of 1%) charged to Administrative Agent on such day on such
transactions as determined by the Administrative Agent.


“FIN
46”:  the pronouncement entitled
Financial Interpretation 46 “Consolidation of Variable Interest Entities” by the
Financial Accounting Standards Board on January 17, 2003, as revised from time
to time.


“FIN
46 Entities”:  any entity in which
Borrower or any Subsidiary directly or indirectly owns an interest that is not
a Subsidiary, but that is nonetheless consolidated with Borrower or any
Subsidiary for financial reporting purposes as a result of the application of
FIN 46 or EITF 04-05.


“Financial
Statements”:  as defined in Section
4.13.


“Fitch”:  Fitch Group and any successor thereto.


“Fixed
Charge Coverage Ratio”:  on any date
of determination, for the period of four (4) fiscal quarters just ended prior
to the date of determination, the ratio of (i) Consolidated EBITDA for
such period to (ii) Consolidated Fixed Charges for such period.


“Fund”:
any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course of its business.


“Funds
from Operations”:  with respect to
any Person for any fiscal period, the sum of (a) the net income of such Person
for such fiscal period (computed in accordance with GAAP), excluding (i) gains
(or losses) from debt restructuring and sales of property and (ii) charges for
impairment of real estate, (b) depreciation and amortization, and (c) other non-cash
items, and after adjustments for unconsolidated partnerships, Joint Ventures
and FIN 46 Entities.  Adjustments for
unconsolidated partnerships, Joint Ventures and FIN 46 Entities will be
calculated to reflect funds from operations on the same basis.


“GAAP”:  generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and statements and pronouncements
of the Financial Accounting Standards Board or in such other statement 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, consistently applied.


“Governmental
Authority”:  the government of the
United States or any other nation, or of any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government (including any supra-national bodies such as the
European Union or the European Central Bank).


“Granting
Lender”: as defined in Section 11.7(k).


“Ground
Lease”:  a ground lease in favor of
the Borrower, a wholly owned Subsidiary of Borrower, a DownREIT Partnership, a
wholly owned Subsidiary of a DownREIT Partnership or a Joint Venture, which (a)
either (i) has an unexpired term of 30 years or more (inclusive of any tenant-controlled
renewal options) or (ii) has a lesser term, but includes an absolute and
non-conditional right of purchase in favor of the Borrower or such other lessee
that, at some point during the term of such Ground Lease, allows for the
purchase of the underlying real property for a de minimus purchase price and
(b) which includes within its terms those rights customarily required by
mortgagees making a loan secured by the interest of the holder of the leasehold
estate demised pursuant to such ground lease.



 9
 









“Guaranty”:  collectively, (a) the Guaranty, substantially
in the form of Exhibit H executed by each of the Subsidiary Guarantors
identified on Schedule 4.4 and delivered to the Administrative Agent for
the benefit of the Lenders on or prior to the Effective Date, and (b) each
additional Guaranty substantially in the form of Exhibit H executed by
each Required Additional Guarantor and delivered to the Administrative Agent
for the benefit of the Lenders after the Effective Date.


“Hazardous
Substance”:  any hazardous or toxic
substance, material or waste, including, but not limited to, (a) those
substances, materials, and wastes listed in the United States Department of
Transportation Hazardous Materials Table (49 CFR 172.101) or by the
Environmental Protection Agency as hazardous substances (40 CFR Part 302) and
amendments thereto and replacements therefor, (b) any substance, pollutant or
material defined as, or designated in, any Environmental Law as a “hazardous
substance,” “toxic substance,” “hazardous material,” “hazardous waste,” “restricted
hazardous waste,” “pollutant,” “toxic pollutant” or words of similar import and
(c) toxic mold.


“Hedging
Agreement”:  any interest rate
protection agreement, foreign currency exchange agreement, commodity price
protection agreement or other interest or currency exchange rate or commodity
price hedging arrangement.


“Highest
Lawful Rate”:  with respect to any
Lender and the Swing Loan Lender, the maximum rate of interest, if any, that at
any time or from time to time may be contracted for, taken, charged or received
by such Lender or the Swing Loan Lender on its Note or which may be owing to
such Lender or the Swing Loan Lender pursuant to this Agreement under the laws
applicable to such Lender or the Swing Loan Lender and this Agreement.


“Indebtedness”:  as to any Person, at a particular time, all
items which constitute, without duplication, (a) indebtedness for borrowed
money (including, without limitation, indebtedness under this Agreement and the
Notes) or the deferred purchase price of Property (other than trade payables
incurred in the ordinary course of business), (b) indebtedness evidenced by
notes, bonds, debentures or similar instruments, (c) obligations with respect
to any conditional sale or title retention agreement, (d) indebtedness arising
under acceptance facilities and the amount available to be drawn under all
letters of credit issued for the account of such Person and, without
duplication, all drafts drawn thereunder to the extent such Person shall not
have reimbursed the issuer in respect of the issuer’s payment of such drafts,
(e) all liabilities secured by any Lien on any Property owned by such Person
even though such Person has not assumed or otherwise become liable for the
payment thereof (other than carriers’, warehousemen’s, mechanics’, repairmen’s
or other like non-consensual statutory Liens arising in the ordinary
course of business), (f) obligations under Capital Leases, (g) Contingent
Obligations, (h) ERISA Liabilities and (i) all indebtedness, obligations
or other liabilities under or with respect to any Hedging Agreements that in
accordance with GAAP should be classified upon such Person’s balance sheet as
liabilities, or to which reference should be made by footnotes thereto;
provided, however, that the term Indebtedness shall not include guarantees or
carve-outs with respect to claims of the types referenced in (a)-(d) of the
definition of Non-Recourse Exclusions until a claim is made with respect
thereto, and then shall be included only to the extent of the amount of such
claim.


“Indemnified
Person”:  as defined in Section
11.12.


“Intellectual
Property”:  all copyrights,
trademarks, patents, trade names and service names.


“Interest
Payment Date”:  (a) as to any
Loan other than a Prime Rate Loan, the last day of each Interest Period
applicable to such Loan and the Maturity Date; provided, however,
that if any Interest Period for a LIBOR Loan exceeds three months, the
respective dates that fall every three months after the beginning of such
Interest Period shall also be Interest Payment Dates; and (b) as to any
Prime Rate Loan (including a Swing Line Loan), the last Business Day of each
March, June, September and December and the Maturity Date.


“Interest
Period”:  (a) with respect to
any LIBOR Loans requested by the Borrower, the period commencing on, as the
case may be, the Effective Date, Borrowing Date or Conversion Date with respect
to such LIBOR Loans and ending one, two, three or six months thereafter, as
selected by the Borrower in its irrevocable Borrowing Request as provided in
Section 2.3 or its irrevocable notice of conversion as provided in Section 2.8;
and (b) as to each Competitive Advance, a period of not less than 7 days and
not more than 180 days as selected by the Borrower in its Competitive Bid
Request; provided, however, that all of the foregoing provisions relating to
Interest Periods are subject to the following:



 10
 









(a)                                  any
Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless, in the case of a
LIBOR Loan, such Business Day falls in another calendar month, in which case
such Interest Period shall end on the immediately preceding Business Day;


(b)                                 if,
with respect to the borrowing of any Loan as a LIBOR Loan or the conversion of
one Advance to another pursuant to Section 2.8, the Borrower shall fail to give
due notice as provided in Section 2.3 or 2.8, as the case may be, the Borrower
shall be deemed to have elected that such Loan or Advance shall be made as a
Prime Rate Loan;


(c)                                  any
Interest Period pertaining to a LIBOR Loan that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of a calendar month;


(d)                                 with
respect to any Interest Period applicable to a LIBOR Loan, no such Interest
Period shall end after the Maturity Date; and


(e)                                  the
Borrower shall select Interest Periods so as not to have more than ten (10)
different Interest Periods outstanding at any one time with respect to LIBOR
Loans and four (4) different Interest Periods outstanding at any one time with
respect to Competitive Advances.


“Investments”:  with respect to the Borrower or any of its
Subsidiaries, as applicable, any of (a) the purchase, acquisition, holding or
investment by the Borrower or any such Subsidiary in the Stock of, or any other
interest in, any Person, or the making of any loan or any advance to, or the
entering into any arrangement for the purpose of acquiring, holding or
investing in or loaning or advancing to, or the making of any other investment,
whether by way of capital contribution, time deposit or otherwise, in or with
any Person, or (b) the purchase, acquisition, holding or investment in any real
or personal property by the Borrower or any such Subsidiary; provided, that the
provision by Borrower or any such Subsidiary of guarantees and/or letters of credit
to other Persons shall not constitute Investments but shall instead constitute
Indebtedness.


“ISP”:  with respect to any Letter of Credit, the “International
Standby Practices 1998” published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time
of issuance).


“Issuer
Documents”:  with respect to any
Letter of Credit, the Letter of Credit application, and any other document,
agreement and instrument entered into by the Issuing Lender and the Borrower
(or any Subsidiary) or in favor of the Issuing Lender and relating to any such
Letter of Credit.


“Issuing
Lender”:  Bank of America in its
capacity as (a) the Lender issuing the Letters of Credit and (b) the owner of a
one hundred percent (100%) participation interest in and to the Existing
Letters of Credit, and any successor issuer of the Letters of Credit hereunder.


“Joint
Venture”:  an Investment by Borrower
or any of its Subsidiaries with third persons in joint ventures, general
partnerships, limited partnerships, limited liability companies or any other
business association.  Joint Ventures
include non-wholly owned Subsidiaries of Borrower and FIN 46 Entities, but
exclude DownREIT Partnerships.


“Land
Assets”:  any land of the Borrower or
its Subsidiaries, or in which the Borrower or any of its Subsidiaries has an
interest (either directly or indirectly, through a Joint Venture or otherwise)
with respect to which the commencement of grading, construction of improvements
or infrastructure has not yet commenced, and all unimproved land according to
GAAP.


“Laws”:  collectively, all international, foreign,
Federal, state and local statutes, treaties, rules, guidelines, regulations,
ordinances, codes and administrative or judicial precedents or authorities,
including the interpretation or administration thereof by any Governmental
Authority charged with the enforcement, interpretation or 



 11
 









administration
thereof, and all applicable administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with, any Governmental
Authority, in each case whether or not having the force of law.


“Lead
Arranger”:  Banc of America
Securities LLC and its successors, in its capacity as Lead Arranger hereunder.


“Letters
of Credit”:  irrevocable standby
letters of credit in respect of obligations of the Borrower incurred pursuant
to contracts made or performances undertaken or to be undertaken in the
ordinary course of the Borrower’s business which are payable upon presentation
of a sight draft and other documents described in such Letters of Credit, if
any, as originally issued pursuant to this Agreement or the Replaced Credit
Agreement (which shall include the Existing Letters of Credit) or as amended,
modified, extended, renewed or supplemented.


“Letter
of Credit Exposure”:  at any time,
the sum of (a) the aggregate undrawn amount of all outstanding Letters of
Credit at such time plus (b) the aggregate amount of all unreimbursed
drawings under Letters of Credit at such time.


“Letter
of Credit Request”:  See Section
2.5(a).


“LIBOR”:  for any Interest Period with respect to any
LIBOR Loan:


(a)                                  the
rate per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”),
as published by Reuters (or other commercially available source providing
quotations of BBA LIBOR as designated by the Administrative Agent from time to
time) at approximately 11:00 a.m., London time, two Business Days prior to
the commencement of such Interest Period, for Dollar deposits (for delivery on
the first day of such Interest Period) with a term equivalent to such Interest
Period, or


(b)                                 if
the rate referenced in the preceding clause (a) does not appear on such page or
service or such page or service shall not be available, the rate per annum
equal to the rate determined by the Administrative Agent to be the offered rate
on such other page or other service that displays an average British Bankers
Association Interest Settlement Rate for deposits in Dollars (for delivery on
the first day of such Interest Period) with a term equivalent to such Interest
Period, determined as of approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period, or


(c)                                  if
the rates referenced in the preceding clauses (a) and (b) are not available,
the rate per annum determined by the Administrative Agent as the rate of
interest at which deposits in Dollars for delivery on the first day of such
Interest Period in same day funds in the approximate amount of the LIBOR Loan
being made, continued, or converted by Administrative Agent’s (or, in the case
of a Competitive Advance Loan, the applicable Lender with respect to such
Competitive Advance) and with a term equivalent to such Interest Period would
be offered by Administrative Agent’s (or such Competitive Advance Lender’s)
London Branch to major banks in the London interbank eurodollar market at their
request at approximately 4:00 p.m. (London time) two Business Days prior to the
first day of such Interest Period.  In
the event that the Board of Governors of the Federal Reserve System shall
impose a Reserve Percentage with respect to LIBOR deposits of Administrative
Agent, then for any period during which such Reserve Percentage shall apply,
LIBOR shall be equal to the amount determined above divided by an amount equal
to 1 minus the Reserve Percentage.


“LIBOR
Lending Office”:  initially, the
office of each Lender designated as such in Exhibit C hereto;
thereafter, such other office of such Lender, if any, that shall be making or
maintaining LIBOR Loans.


“LIBOR
Loans”:  loans bearing interest
calculated by reference to a LIBOR.


“Lien”:  any mortgage, pledge, hypothecation,
assignment, deposit or preferential arrangement, encumbrance, lien (statutory
or other), or other security agreement or security interest of any kind or
nature whatsoever, including, without limitation, any conditional sale or other
title retention agreement and any capital or financing lease having
substantially the same economic effect as any of the foregoing.



 12
 









“Liquidation”
means the liquidation, following the Merger, of NXL into the Borrower and the
concurrent assignment to the Borrower of all of the assets of NXL and the
assumption by the Borrower of all of the liabilities of NXL.


“Loan”
and “Loans”:  an individual loan
or the aggregate loans (including a Revolving Credit Loan (or Loans), a Swing
Loan (or Loans) and a Competitive Advance (or Advances)), as the case may be,
to be made by the Lenders hereunder.  All
Loans shall be made in Dollars.  Amounts
drawn under a Letter of Credit shall also be considered Loans as provided in
Section 2.5.


“Loan
Documents”:  collectively, this
Agreement, the Guaranty (and each Guaranty subsequently delivered pursuant to
Section 7.11), the Notes and all other documents, instruments or agreements now
or hereafter executed or delivered by or on behalf of the Borrower, any
Subsidiary Guarantor or any of their respective Subsidiaries evidencing or
otherwise relating to the Loans to which Administrative Agent and/or the
Lenders are a party or an intended beneficiary.


“Management
Fee Value”  the amount of management
fees from any existing Approved Management Contracts actually paid by third
parties to the Borrower and its Subsidiaries (valued by annualizing such fees
for the most recent quarter for which the Borrower has provided financial
information, but excluding income from any contracts terminated during such
quarter), multiplied by six (6); provided, however, that Management Fee Value
shall, for purposes of this Agreement, be reduced to the extent it accounts for
more than 10% of Adjusted Consolidated Total Assets (such that Management Fee
Value shall equal no more than 10% of the final calculated Adjusted
Consolidated Total Assets).


“Margin
Stock”:  any “margin stock”, as said
term is defined in Regulation U of the Board of Governors of the Federal
Reserve System, as the same may be amended or supplemented from time to time.


“Material
Acquisition”:  any purchase or other acquisition, whether by
acquisition of assets, merger, business combination or other similar
transaction, of an interest in any portfolio of Real Properties or the equity
interests of any one or more entities owning any such portfolio of Real
Properties (i) by Borrower and/or any of its Subsidiaries, where the purchase
price or aggregate value is in excess of $250 million, or (ii) by any Joint
Venture, where the purchase price or aggregate value multiplied by Borrower’s
pro rata share (based on its beneficial ownership (direct or indirect) of such
Joint Venture) is in excess of $250 million.


“Material
Adverse Effect”:  a material adverse
effect on (a) the financial condition, operations, business, or Properties of
(i) the Borrower or (ii) the Borrower and its Subsidiaries taken as a whole,
(b) the ability of the Borrower to perform any of its material obligations
under the Loan Documents or the ability of the Subsidiary Guarantors, taken as
a whole, to perform their material obligations under the Guaranty or (c) the
ability of the Administrative Agent and the Lenders to enforce the Loan
Documents.


“Maturity
Date”:  the earlier of (a) October
20, 2007, or (ii) the date on which the Notes shall become due and
payable, whether by acceleration or otherwise; provided, however,
that, in each case, if such date
is not a Business Day, the Maturity Date shall be the next succeeding Business
Day.


“Maximum
Competitive Advance”:  means, with
respect to any Competitive Bid made by a Lender, the amount set forth therein
as the maximum Competitive Advance which that Lender is willing to make in response
to the related Competitive Bid Request.


“Merger”
means the merger of Super MergerSub Inc., a Maryland corporation, into NXL
(with NXL as the surviving entity).


“Moody’s”:  Moody’s Investors Services, Inc. and any
successor thereto.


“Multiemployer
Plan”:  a plan defined as such
Section 3(37) of ERISA to which contributions have been made by the Borrower or
any ERISA Affiliate and which is covered by Title IV of ERISA.


“Net
Operating Income”:  for any period
and with respect to all assets which are Unencumbered Assets or Operating
Properties during such period, the sum of (a) net income for such period,
determined in accordance with 



 13
 









GAAP, attributable
to Unencumbered Assets or Operating Properties, as applicable (excluding
management fees and other allocated management costs), plus (b) depreciation
and amortization, interest expense and any extraordinary or non-recurring
losses or charges for impairment of real estate deducted in calculating such
net income, minus (c) extraordinary or non-recurring gains and payments
(including rent insurance proceeds and condemnation awards) included in such
net income, minus (d) any portion of such net income attributable to rents paid
by any tenant which is an Affiliate of the Borrower, minus (e) an assumed management fee with respect to
such Unencumbered Assets and Operating Properties in the amount of 3.5% of
operating income.  For purposes of
any calculation of Net Operating Income, real estate taxes, ground rent and
insurance shall be included only at their stabilized, recurring levels.


“Net
Rentable Area”:  with respect to any
Real Property, the floor area of any buildings, structures or improvements
thereof (expressed in square feet) available for leasing to tenants, as
determined in accordance with the leases or site plans or leasing plans for
such Real Property, or if such leases or site plans or leasing plans do not set
forth the floor area demised thereunder (or if such Real Property is not
subject to a lease), then as determined by the Borrower in accordance with an
industry-accepted protocol approved by the Administrative Agent.


“New
Construction Asset”:  any Property of
the Borrower or its Subsidiaries, or in which the Borrower or any of its
Subsidiaries has an interest (either directly or indirectly, through a Joint
Venture or otherwise) which is new ground-up construction (but not including an
expansion of an existing Property). 
Notwithstanding the foregoing, any such new construction which shall
have been a New Construction Asset under the criteria of this definition shall
no longer be a New Construction Asset upon the earlier of (a) such time as at
least 60% of the Net Rentable Area (determined on an “as completed” basis) of
such construction is initially leased to tenants who have taken possession
thereof and commenced rental payments and (b) the date which is twelve months
(12) following the date on which a certificate of occupancy, whether permanent
or temporary, (or its functional equivalent) has been issued with respect to at
least 60% of the Net Rentable Area of such Property.


“Non-Recourse
Exclusions”:  with respect to any
Non-Recourse Indebtedness of any Person, any usual and customary exclusions
from the non-recourse limitations governing such Indebtedness, including,
without limitation, exclusions for claims that (a) are based on fraud,
intentional misrepresentation, misapplication of funds, gross negligence or
willful misconduct, (b) result from intentional mismanagement of or waste at
the Real Property securing such Non-Recourse Indebtedness, (c) arise from the
presence of Hazardous Substances on the Real Property securing such
Non-Recourse Indebtedness; or (d) are the result of any unpaid real estate
taxes and assessments.


“Non-Recourse
Indebtedness”:  at any time,
Indebtedness of the Borrower, its Subsidiaries or a Joint Venture at such time
which is secured by one or more parcels of Real Property or interests therein
and which is not a general obligation of the Borrower or such Subsidiary, the
holder of such Indebtedness having recourse solely to the parcels of Real
Property, or interests therein, securing such Indebtedness, the leases thereon
and the rents, profits and equity thereof (except for recourse against the
general credit of the Borrower or its Subsidiaries for any Non-Recourse
Exclusions), provided that in calculating the amount of Non-Recourse
Indebtedness at any time, the amount of any Non-Recourse Exclusions which
are the subject of a final judgment shall not be included in Non-Recourse
Indebtedness.


“Note”
and “Notes”:  collectively, the
Revolving Credit Notes, the Swing Loan Note and the Competitive Advance Notes.


“Notes
Receivable”:  mortgage and notes
receivable and reimbursement agreements (to the extent obligations are payable
under such reimbursement agreements), including interest payments thereunder,
of Borrower or any Subsidiary in a Person (other than Borrower or its
Subsidiaries).


“NXL”
means New Plan Excel Realty Trust, Inc., a Maryland corporation.


“NXL
Convertible Notes” means a collective reference to any notes issued pursuant
to (a) that certain Indenture, dated as of February 3, 1999, by and among NXL,
New Plan Realty Trust (“Realty Trust”), a Massachusetts business trust, as
guarantor, and State Street Bank and Trust Company, a Massachusetts trust
company, as trustee (for purposes of this clause (a) only, the “Original
Trustee”), as supplemented by the Officers’ Certificate, dated as of May 19,
2003, by and among NXL, Realty Trust, and U.S. Bank Trust National Association,




 14
 









as successor to
the Original Trustee, as trustee (for purposes of this clause (a) only, the “Trustee”),
and the Supplemental Indenture, dated as of December 17, 2004, by and between
NXL and the Trustee; and (b) Indenture, dated as of January 30, 2004, by and
between NXL, as primary obligor and U.S. Bank Trust National Association, as
trustee (for purposes of this clause (b) only, the “Trustee”), as supplemented
by the First Supplemental Indenture, dated as of September 19, 2006, by and
between NXL and the Trustee.


“Operating
Property”:  any Real Property which
at any time (a) is an income-producing property in operating condition
and in respect of which no material part thereof has been (i) damaged by fire
or other casualty (unless such damage has been or is in the process of being
repaired) or (ii) condemned in a manner that materially interferes with the
operation thereof (unless such condemnation has been restored), (b) is a retail
shopping center (including single tenant retail properties), and (c) for which
a certificate of occupancy, whether temporary or permanent, or the functional
equivalent thereof, has been issued for the operating portions of the
improvements comprising the same (if required by law to occupy the same) and
are in full force and effect, and “Operating Properties” means all such
Operating Properties, collectively.  An
Operating Property shall not include any Redevelopment Asset or any New
Construction Asset or properties acquired during the previous twelve (12)
months (until the one year anniversary date for acquired properties).


“Operating
Property Value”:  as of any date of
determination the quotient of (a) an amount equal to the Adjusted Net Operating
Income for all Operating Properties in the aggregate for the four fiscal
quarters of the Borrower most recently ending as of such date, divided by (b) 8.25%. 
For purposes of any determination of Operating Property Value, the
following limitations and methodology shall apply:  (i) the Adjusted Net Operating Income of any
Operating Property owned by a DownREIT Partnership or a Subsidiary of a
DownREIT Partnership shall be based on the Borrower’s Interest in the Adjusted
Net Operating Income for each such Operating Property for the four fiscal
quarters having most recently ended as of such date; (ii) in the event more
than 15% of the gross base rents payable under all leases for Properties of the
Borrower, its Subsidiaries, DownREIT Partnerships and Subsidiaries of DownREIT
Partnerships (including the Borrower’s Interest in any Properties) shall be
payable by one tenant and its Subsidiaries, then Operating Property Value shall
be reduced by the percentage amount of such excess multiplied by the Operating
Property Value attributable to the Properties leased or controlled by such
tenant and its Subsidiaries; and (iii) to the extent that a New Construction
Asset or Redevelopment Asset becomes an Operating Property during the relevant
period, the Adjusted Net Operating Income of such Operating Property during
such period and the following periods shall be annualized in a manner
reasonably satisfactory to the Administrative Agent until such time as such
Operating Property has performed as an Operating Property for four (4) full
fiscal quarters.  Notwithstanding the
foregoing, to the extent any Real Property is an Operating Property as a result
of being held by a non-Subsidiary Joint Venture of the Borrower (whether
directly or indirectly), the Operating Property Value derived from such Real
Property shall be Borrower’s pro rata share (based on its beneficial ownership
of the applicable Joint Venture) of the otherwise calculated Operating Property
Value of such Operating Property.


“Organization
Documents”: (a) with respect to any corporation, the certificate or
articles of incorporation and the bylaws (or equivalent or comparable
constitutive documents with respect to any non-U.S. jurisdiction); (b) with
respect to any limited liability company, the certificate or articles of
formation or organization and operating agreement; and (c) with respect to any
partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.


“Participant”:
has the meaning specified in Section 11.7(d).


“PBGC”:  the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA, or any Governmental
Authority succeeding to the functions thereof.


“PCAOB”:
means the Public Company Accounting Oversight Board.


“Permitted
Liens”:  Liens permitted to exist under
Section 8.1.



 15
 









“Person”:  an individual, a partnership, a corporation,
a business trust, a limited liability company, a joint stock company, a trust,
an unincorporated association, a joint venture, a Governmental Authority or any
other entity of whatever nature.


“Plan”:  any employee benefit or other plan
established or maintained by the Borrower or any ERISA Affiliate and which is
covered by or subject to the minimum funding standards of Title IV of ERISA,
other than a Multiemployer Plan.


“Plan
of Merger” means that certain Agreement and Plan of Merger dated as
February 27, 2007, by and among the Borrower, NXL, Super MergerSub Inc. and
various other parties, as amended by that certain First Amendment to Agreement
and Plan of Merger dated April 19, 2007.


“Platform”:
as defined in Section 7.2.


“Pricing
Level”:  one of the following five
pricing levels, as applicable, provided that if (a) if the Borrower receives
only two ratings and these ratings are not equivalent, the Pricing Level is
determined by the higher of the two ratings; (b) if the Borrower receives more
than two ratings, the Pricing Level is determined by the second highest rating and (c) if the Borrower fails to
maintain a Senior Debt Rating from at least two of S&P, Moody’s or Fitch, Pricing
Level V would be the applicable Pricing Level:


“Pricing
Level I”:  the Pricing Level which
would be applicable for so long as the Senior Debt Rating is greater than or
equal to A-/A3;


“Pricing
Level II”:  the Pricing Level which
would be applicable for so long as the Senior Debt Rating is equal to
BBB+/Baa1;


“Pricing
Level III”:  the Pricing Level which
would be applicable for so long as the Senior Debt Rating is equal to BBB/Baa2;


“Pricing
Level IV”:  the Pricing Level which
would be applicable for so long as the Senior Debt Rating is equal to BBB-/Baa3;
and


“Pricing
Level V”:  the Pricing Level which
would be applicable for so long as the Senior Debt Rating is less than BBB-/Baa3
or there is no Senior Debt Rating for the Borrower from at least two of S&P, Moody’s or Fitch.


“Prime
Rate”:  for any day a fluctuating
rate per annum equal to the higher of (a) the Federal Funds Rate plus 1/2
of 1% and (b) the rate of interest in effect for such day as publicly
announced from time to time by Administrative Agent as its “prime rate.”  The “prime rate” is a rate set by
Administrative Agent based upon various factors including Administrative Agent’s
costs and desired return, general economic conditions and other factors, and is
used as a reference point for pricing some loans, which may be priced at,
above, or below such announced rate.  Any
change in such rate announced by Administrative Agent shall take effect at the
opening of business on the day specified in the public announcement of such
change.


“Prime
Rate Loans”:  those Loans bearing
interest calculated by reference to the Prime Rate.


“Property”:  all types of real, personal, tangible,
intangible or mixed property.


“Proposed
Bid Rate”: as applied to any Remaining Interest Period with respect to a
Lender’s Competitive Advance, or the interest rate applicable to a Swing Loan,
the rate per annum that such Lender or Swing Loan Lender in good faith would
have quoted to the Borrower had the Borrower requested that such Lender or
Swing Loan Lender offer to make a Competitive Advance or Swing Loan on the
first day of such Remaining Interest Period, assuming no Default or Event of
Default existed on such day and that the Borrower had the right to borrow
hereunder on such day; each such rate to be determined by such Lender or Swing
Loan Lender, as the case may be, in good faith in its sole discretion.


“Public
Lender”: as defined in Section 7.2(m).



 16
 









“Real
Property”:  all real Property, and
all interests in real Property, now or hereafter owned, leased or held by the
Borrower or any Subsidiary of the Borrower, including, without limitation (and
as applicable), interests held indirectly through Joint Ventures.


“Redevelopment
Asset”:  any Property of the Borrower
or its Subsidiaries, or in which the Borrower or any of its Subsidiaries has an
interest (either directly or indirectly, through a Joint Venture or otherwise)
(a) which is not a New Construction Asset and (b) which is undergoing either
(i) a renovation or redevelopment in respect of which (x) the cost is greater
than 25% of the book value of such Property and (y) at least one anchor tenant
lease shall have been executed, which such lease shall provide for occupancy
during the period immediately following the completion of such renovation or
redevelopment or (ii) an expansion which will increase the Net Rentable Area of
such Property by 20,000 square feet or more (provided that with respect to any
Property which is under expansion, if the balance thereof is a fully
integrated, rentable property, then only the portion of such Property that is
under expansion shall be a Redevelopment Asset pursuant to this clause
(b)(ii)).  Notwithstanding the foregoing,
any such renovation, redevelopment or expansion which shall have been a
Redevelopment Asset under the criteria set forth in clause (i) or (ii) of this
definition shall no longer be a Redevelopment Asset (A) in the case of a
renovation or redevelopment described in clause (i), upon the earlier of (1)
such time as the applicable anchor tenant has taken possession thereof and
commenced rental payments and (2) the date which is twelve months (12)
following the date on which a new certificate of occupancy, whether permanent
or temporary, (or its functional equivalent) has been issued with respect to
the applicable anchor tenant space and (B) in the case of an expansion
described in clause (ii), upon the earlier of (1) such time as at least 60% of
the Net Rentable Area (determined on an “as completed” basis) of such expansion
is initially leased to tenants who have taken possession thereof and commenced
rental payments and (2) the date which is twelve months (12) following the date
on which a certificate of occupancy, whether permanent or temporary, (or its
functional equivalent) has been issued with respect to at least 60% of the Net
Rentable Area of such Property.  A
Property shall not be considered a “Redevelopment Asset” solely because such
Property is being restored to its prior condition following a casualty or
condemnation, but may qualify as a “Redevelopment Asset” despite any such casualty
or condemnation to the extent the conditions set forth above in this definition
for qualification as a “Redevelopment Asset” have been satisfied.


“REIT”:  a Person qualifying as a real estate
investment trust under sections 856-859 of the Code and the regulations
and rulings of the Internal Revenue Service issued thereunder.


“Related
Parties”:  with respect to any
Person, such Person’s Affiliates and the partners, directors, officers,
employees, agents and advisors of such Person and of such Person’s Affiliates.


“Remaining
Interest Period”:  (a) in the event
that the Borrower shall fail for any reason to borrow a Loan in respect of
which it shall have requested a LIBOR Loan or a Swing Loan or to convert an
Advance to a LIBOR Loan after it shall have notified the Administrative Agent
of its intent to do so with respect to the Loans to be made pursuant to
Sections 2.1A, 2.3 or 2.8 or accepted one or more Competitive Advances under
Section 2.4 or with respect to a conversion pursuant to Section 2.8, a period
equal to the Interest Period that the Borrower elected in respect of such LIBOR
Loan, Swing Loan or Competitive Advance; or (b) in the event that a LIBOR Loan,
Swing Loan or Competitive Advance shall terminate for any reason prior to the
last day of the Interest Period applicable thereto, a period equal to the
remaining portion of such Interest Period if such Interest Period had not been
so terminated; or (c) in the event that the Borrower shall prepay or repay all
or any part of the principal amount of a LIBOR Loan, Swing Loan or Competitive
Advance (including, without limitation, any mandatory prepayment or a
prepayment resulting from acceleration or illegality) prior to the last day of
the Interest Period applicable thereto, a period equal to the period from and
including the date of such prepayment or repayment to but excluding the last
day of such Interest Period.


“Rent
Roll”:  a schedule prepared by the
Borrower from time to time identifying (a) the Real Property owned by the
Borrower or its Subsidiaries and stating whether such items of Real Property
are Unencumbered Assets at such time, (b) the annual base rent payable under
each lease of Real Property owned by the Borrower or any of its Subsidiaries,
(c) the commencement and termination dates of the term of each such lease, (d)
any renewal options with respect to such lease, (e) the Net Rentable Area of
the space demised under each such lease and (f) such other information as the
Administrative Agent may reasonably require.



 17
 









“Replaced
Credit Agreement”:  means that
certain Second Amended and Restated Revolving Credit Agreement dated as of
August 25, 2006 by and among, NXL, the guarantors party thereto, Bank of
America, N.A. as administrative agent for the lenders and the lenders from time
to time party thereto.


“Required
Additional Guarantors”:  any
Subsidiary required to execute and deliver a Guaranty pursuant to Section 7.11.


“Required
Lenders”:  the Lenders whose
aggregate Commitment Percentage equals or exceeds fifty-one percent (51%),
notwithstanding any termination of the Total Commitment (in which case the
Commitment Percentage immediately preceding such termination shall be
utilized), provided that the Commitment of any Defaulting Lender shall
be excluded from the calculations of Commitment Amount and Total Commitment
Amount for purposes of making a determination of Required Lenders.


“Reserve
Percentage”:  for any day with
respect to a LIBOR Loan, the maximum rate (expressed as a decimal) at which any
lender subject thereto would be required to maintain reserves (including,
without limitation, all base, supplemental, marginal and other reserves) under
Regulation D of the Board of Governors of the Federal Reserve System (or any
successor or similar regulations relating to such reserve requirements) against
“Eurocurrency Liabilities” (as that term is used in Regulation D or any
successor or similar regulation), if such liabilities were outstanding.  The Reserve Percentage shall be adjusted
automatically on and as of the effective date of any change in the Reserve
Percentage.


“Responsible
Official”: (a) when used with reference to a Person other than an
individual, any corporate officer of such Person, general partner or managing
member of such Person, corporate officer of a corporate general partner or
managing member of such Person, or corporate officer of a corporate general
partner of a partnership that is a general partner of such Person or corporate
managing member of a limited liability company that is a managing member of
such Person, or any other responsible official thereof duly acting on behalf
thereof, and (b) when used with reference to a Person who is an
individual, such Person.


“Restricted
Payment”:  as to any Person, any
dividend or other distribution by such Person (whether in cash, securities or
other property) with respect to any shares of any class of equity securities or
beneficial interests of such Person, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit,
on account of the purchase, redemption, retirement, acquisition, cancellation
or termination of any such shares or beneficial interests or any option,
warrant or other right to acquire any such shares or beneficial interests.


“Revolving
Credit Loan” and “Revolving Credit Loans”:  as defined in Section 2.1.


“Revolving
Credit Note” and “Revolving Credit Notes”:  as defined in Section 2.2.


“Sarbanes-Oxley”:  the Sarbanes-Oxley Act of 2002.


“SEC”:  the Securities and Exchange Commission, or
any Governmental Authority succeeding to any of its principal functions.


“Securities
Laws”:  the Securities Act of 1933,
the Securities Exchange Act of 1934, Sarbanes-Oxley and the applicable
accounting and auditing principles, rules, standards and practices promulgated,
approved or incorporated by the SEC or the PCAOB.


“Senior
Debt Rating”:  the senior unsecured
non-credit-enhanced debt rating of the Borrower as determined by
S&P, Moody’s and/or Fitch from time to time; provided, that (a) if the
Borrower receives only two ratings and these ratings are not equivalent, the
Pricing Level is determined by the higher of the two ratings; (b) if the
Borrower receives more than two ratings, the Pricing Level is determined by the
second highest rating and (c) if the
Borrower fails to maintain a Senior Debt Rating from at least two of S&P,
Moody’s or Fitch, the Pricing Level would be the rating level at less than
BBB-/Baa3.


“Sole
Book Manager”:  Banc of America
Securities LLC, together with its successors in such capacity.


“SPC”:
as defined in Section 11.7(k).



 18
 









“Special
Counsel”:  Moore & Van Allen
PLLC, special counsel to Bank of America.


“S&P”:  Standard & Poor’s Ratings Group and any
successor thereto.


“Stock”:  any and all shares, rights, interests,
participations, warrants, depositary receipts or other equivalents (however
designated) of corporate stock, including, without limitation, so-called “phantom
stock,” preferred stock and common stock.


“Subsidiary”:  as to any Person, any corporation,
association, partnership, limited liability company, joint venture or other
business entity (a) which is required pursuant to GAAP to be consolidated with
such Person for financial reporting purposes, and (b) of which such Person,
directly or indirectly, either (i) in respect of a corporation, owns or controls
more than 50% of the outstanding Stock having ordinary voting power to elect a
majority of the board of directors or similar managing body, irrespective of
whether a class or classes shall or might have voting power by reason of the
happening of any contingency, or (ii) in respect of an association,
partnership, limited liability company, joint venture or other business entity
(other than a corporation which is provided for in (i) above), is entitled
to share, either directly or indirectly through an entity described in clause
(i) above, in more than 50% of the profits and losses, however determined
(without taking into account returns of capital to such Person as an equity
investor or payment of fees to such Person for services rendered to such
entity).  References to “Subsidiaries”
contained herein without further express clarification shall be deemed to be
references to Subsidiaries of the Borrower.


“Subsidiary
Guarantor”: the Subsidiaries of the Borrower listed on Schedule 4.4
and designated thereon as a Subsidiary Guarantor, each Required Additional
Guarantor, and their successors and assigns; and “Subsidiary Guarantors” shall
mean all such guarantors, collectively.


“Swing
Loans”:  as defined in Section 2.1A.


“Swing
Loan Lender”:  Bank of America, in
its capacity as Swing Loan Lender.


“Swing
Loan Commitment”:  the sum of
$25,000,000.00, as the same may be changed from time to time in accordance with
the terms of this Agreement.


“Swing
Loan Note”:  as defined in Section
2.1A.


“Tangible
Net Worth”:  as of any date of
determination thereof with respect to the Borrower and its Subsidiaries,
determined on a Consolidated basis in accordance with GAAP, the remainder of
(a) the amounts which would, in conformity with GAAP, be included under “shareholder’s
equity” (or any like caption) on a Consolidated balance sheet of the Borrower
and its Subsidiaries as at such date, minus (b) the net book value of all
assets of the Borrower and its Subsidiaries on a Consolidated basis (to the
extent reflected in the Consolidated balance sheet of the Borrower at such
date) which would be treated as intangibles under GAAP, including, without
limitation, goodwill (whether representing the excess cost over book value of
assets acquired or otherwise), patents, trademarks, trade names, franchises,
copyrights, licenses, service marks, rights with respect to the foregoing and
deferred charges (including, without limitation, unamortized debt discount and
expense, organization costs and research and development costs);  provided,
however, that to the extent FAS 141 requires treatment of the value of leases
associated with purchased real property as intangible assets, such value shall,
notwithstanding FAS 141, be treated as part of the tangible value of such real
property to the extent such value would, in the absence of FAS 141, have
otherwise been included in such determination.


“Taxes”:  any present or future income, stamp or other
taxes, levies, imposts, duties, fees, assessments, deductions, withholdings, or
other charges of whatever nature, now or hereafter imposed, levied, collected,
withheld, or assessed by any Governmental Authority.


“Total
Commitment Amount”:  on any day, the
sum of the Commitment Amounts of all Lenders on such day.



 19
 









“Unencumbered
Asset”:  any Operating Property which
Borrower desires to have treated as an Unencumbered Asset and which at any time
(a) is wholly owned in fee simple by the Borrower, a DownREIT Partnership, a
direct or indirect wholly owned Subsidiary of the Borrower or a DownREIT
Partnership or a Joint Venture (or is the subject of a Ground Lease), (b) is
free and clear of all Liens, including any Liens on any direct or indirect
interest of Borrower or any Subsidiary therein (other than Liens permitted
under clauses (a), (b), (c), (d), (e) (f), (h), (i) and (j) of Section 8.1),
(c) does not have applicable to it (or to any such Ground Lease) any
restriction on the pledge, transfer, mortgage or assignment of such Operating
Property or Ground Lease (including any restriction imposed by the
organizational documents of any such Subsidiary or DownREIT Partnership, but
excluding (i) any requirement in a Ground Lease that such Ground Lease be
assumed upon the assignment thereof and (ii) any restrictions on transfers
applicable to an Operating Property or Ground Lease owned by a DownREIT
Partnership or a wholly owned Subsidiary of a DownREIT Partnership, so long as
any such transfer restrictions shall not prohibit such DownREIT Partnership or
such wholly owned Subsidiary of a DownREIT Partnership from transferring such
Operating Property or Ground Lease either (A) in a manner that does not trigger
the built in gains of the applicable unit holders in such DownREIT Partnership,
including, without limitation, exchanges pursuant to Section 1031 of the Code,
or (B) subject only to the payment of any tax liability and related expenses of
the applicable unit holders in such DownREIT Partnership in connection with
such transfers, including a reimbursement for taxes imposed upon the applicable
unit holders as a result of such payment), (d) if owned by any such Subsidiary
or DownREIT Partnership, the Stock, partnership interests or membership
interests, as the case may be, of such Subsidiary or DownREIT Partnership that
are owned by the Borrower, any Subsidiary or any DownREIT Partnership are not
subject to any pledge or security interest in favor of any Person other than
the Borrower or a Subsidiary Guarantor, (e) is not an Environmental Risk
Property, (f) does not have, to the best of the Borrower’s knowledge, any
title, survey, or other defect which could reasonably be expected to materially
and adversely affect the value, use, financeability or marketability thereof,
and (g) is located within the contiguous 48 states of the continental United
States; and “Unencumbered Assets” means all such Unencumbered Assets,
collectively.  The Unencumbered Assets
which are retail shopping centers shall on an aggregate basis have an occupancy
level of tenants in possession and operating and which are paying base, minimum
or similar regularly scheduled fixed payments of rent (but not pass-throughs of
common area maintenance charges, operating expenses, taxes, insurance and
similar charges) in accordance with the terms of their leases of at least
eighty percent (80%) of the Net Rentable Area within such Unencumbered Assets
based on bona fide arms-length tenant leases requiring current rental payments.


“Unencumbered
Asset Value”:  as of any date, the
sum of (a) the quotient of (i) an amount equal to the Adjusted Net Operating
Income for all Unencumbered Assets in the aggregate for the four fiscal
quarters of the Borrower most recently ending as of such date, divided by (ii)
8.25%, plus (b) Management Fee Value.
For purposes of any determination of Unencumbered Asset Value, the following
limitations and methodology shall apply: 
(A) the Adjusted Net Operating Income of any Unencumbered Asset owned by
a DownREIT Partnership or a wholly owned Subsidiary of a DownREIT Partnership
shall be based on the Borrower’s Interest in the Adjusted Net Operating Income
for each such Unencumbered Asset for the four fiscal quarters having most
recently ended as of such date; (B) the Adjusted Net Operating Income of any
Unencumbered Asset owned by a Joint Venture shall be based on the Borrower’s
Interest in the Adjusted Net Operating Income for each Unencumbered Asset for
the four fiscal quarters having most recently ended as of such date; (C) in the
event more than 15% of the gross base rents payable under all leases for
Properties of the Borrower, its Subsidiaries, DownREIT Partnerships and wholly
owned Subsidiaries of DownREIT Partnerships (including the Borrower’s Interest
in any Properties) shall be payable by one tenant and its Subsidiaries, then
Unencumbered Asset Value shall be reduced by the percentage amount of such
excess multiplied by the Unencumbered Asset Value attributable to the
Properties leased or controlled by such tenant and its Subsidiaries; and (D) to
the extent that a New Construction Asset or Redevelopment Asset becomes an
Operating Property during the relevant period, the Adjusted Net Operating
Income of such Operating Property during such period and the following periods
shall be annualized until such time as such Operating Property has performed as
an Operating Property for four (4) full fiscal quarters.  Notwithstanding the foregoing, to the extent
any Real Property is an Unencumbered Asset and is held by a non-Subsidiary
Joint Venture of the Borrower (whether directly or indirectly), the
Unencumbered Asset Value derived from such Real Property shall be Borrower’s
pro rata share (based on its beneficial ownership of the applicable Joint
Venture) of the otherwise calculated Unencumbered Asset Value of such
Unencumbered Asset.


1.2                                 Other
Interpretive Provisions.  With
reference to this Agreement and each other Loan Document, unless otherwise
specified herein or in such other Loan Document:



 20
 









(a)                                  The
definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined.  Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms.  The words “include,”
“includes” and “including” shall be deemed to be followed by the
phrase “without limitation.”  The word “will”
shall be construed to have the same meaning and effect as the word “shall.”  Unless the context requires otherwise, (i)
any definition of or reference to any agreement, instrument or other document
(including any Organization Document) shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein or in any other Loan
Document), (ii) any reference herein to any Person shall be construed to include
such Person’s successors and assigns, (iii) the words “herein,” “hereof”
and “hereunder,” and words of similar import when used in any Loan
Document, shall be construed to refer to such Loan Document in its entirety and
not to any particular provision thereof, (iv) all references in a Loan Document
to Articles, Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, the Loan Document in
which such references appear, (v) any reference to any law shall include all
statutory and regulatory provisions consolidating, amending replacing or
interpreting such law and any reference to any law or regulation shall, unless
otherwise specified, refer to such law or regulation as amended, modified or supplemented
from time to time, and (vi) the words “asset” and “property”
shall be construed to have the same meaning and effect and to refer to any and
all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.


(b)                                 In
the computation of periods of time from a specified date to a later specified
date, the word “from” means “from and including;” the words “to”
and “until” each mean “to but excluding;” and the word “through”
means “to and including.”


(c)                                  Section
headings herein and in the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any
other Loan Document.


1.3                                 Accounting Terms.


(a)                                  Generally.  All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to
time, applied in a manner consistent with that used in preparing the audited
Financial Statements pursuant to Section 4.13, except as otherwise
specifically prescribed herein.


(b)                                 Changes
in GAAP.  If at any time any change
in GAAP would affect the computation of any financial ratio or requirement set
forth in any Loan Document, and either the Borrower or the Required Lenders
shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate
in good faith to amend such ratio or requirement to preserve the original
intent thereof in light of such change in GAAP (subject to the approval of the
Required Lenders); provided  that, until so amended, (i) such
ratio or requirement shall continue to be computed in accordance with GAAP
prior to such change therein and (ii) the Borrower shall provide to the
Administrative Agent and the Lenders financial statements and other documents
required under this Agreement or as reasonably requested hereunder setting
forth a reconciliation between calculations of such ratio or requirement made
before and after giving effect to such change in GAAP.


1.4                                 Rounding.  Any financial ratios required to be
maintained by the Borrower pursuant to this Agreement shall be calculated by
dividing the appropriate component by the other component, carrying the result
to one place more than the number of places by which such ratio is expressed
herein and rounding the result up or down to the nearest number (with a
rounding-up if there is no nearest number).


1.5                                 Times
of Day.  Unless otherwise
specified, all references herein to times of day shall be references to Eastern
time (daylight or standard, as applicable).


1.6                                 Letter
of Credit Amounts.  Unless
otherwise specified, all references herein to the amount of a Letter of Credit
at any time shall be deemed to mean the maximum face amount of such Letter of
Credit after giving effect to all increases thereof contemplated by such Letter
of Credit or the Issuer Documents related thereto, whether or not such maximum
face amount is in effect at such time.



 21















1.7                                 Clarification
Concerning Calculations for Joint Ventures.  Notwithstanding anything contained in the
foregoing, to the extent any Real Property is held by a non-Subsidiary Joint
Venture of the Borrower or any of its Subsidiaries and is an Unencumbered Asset,
Operating Property, Land Asset, Redevelopment Asset, New Construction Asset or
Real Property purchased within the last 12 months, the Adjusted Net Operating
Income, Operating Property Value, Unencumbered Asset Value, book value or cost
of such asset derived from such Real Property shall be Borrower’s pro rata
share (based on its beneficial ownership of the applicable Joint Venture) of
the otherwise calculated amount for such Real Property.


2.                                       AMOUNT
AND TERMS OF LOANS.


2.1                                 Revolving
Credit Loans.  Subject to the
terms and conditions hereof, each Lender severally agrees to make revolving
credit loans (each a “Revolving Credit Loan” and, as the context may
require, collectively with all Revolving Credit Loans of such Lender and with
the Revolving Credit Loans of all other Lenders, the “Revolving Credit Loans”)
to the Borrower from time to time between the Effective Date and the Maturity
Date, in an aggregate principal amount, together with such Lender’s share of
the Letter of Credit Exposure and Swing Loans outstanding at such time, not to
exceed at any time (exclusive of any Competitive Advances of such Lender at
such time) such Lender’s Commitment Amount for the purposes set forth in
Section 2.15.  The Revolving Credit Loans
shall be made pro rata in accordance with each Lender’s Commitment
Percentage.  The acceptance by Borrower
of the Revolving Credit Loans hereunder shall constitute a representation and
warranty that all of the conditions set forth in Sections 5 (with respect to
Revolving Credit Loans made on the Effective Date) and 6 (with respect to all
other Revolving Credit Loans) have been satisfied.  At no time shall the aggregate outstanding
principal amount of the Revolving Credit Loans of all Lenders (including the
amount of Competitive Advances) plus the Letter of Credit Exposure plus the
aggregate principal amount of all Swing Loans exceed the Total Commitment
Amount.  Between the Effective Date and
the Maturity Date, the Borrower may borrow, prepay in whole or in part and
reborrow under the Commitments at any time and from time to time, all in
accordance with the terms and conditions of this Agreement.  Subject to the provisions of Sections 2.3,
2.4 and 2.8, Revolving Credit Loans may be (a) Prime Rate Loans, (b) LIBOR
Loans, (c) Competitive Advances or (d) any combination thereof.


2.1A                       Swing Loan Commitment.


(a)                                  Subject
to the terms and conditions set forth in this Agreement, Swing Loan Lender
agrees to lend to the Borrower, and the Borrower may borrow (and repay and
reborrow) from time to time between the Effective Date and the Maturity Date
upon notice by the Borrower to the Swing Loan Lender given in accordance with
this Section 2.1A, such sums as are requested by the Borrower for the purposes
set forth in Section 2.15 in an aggregate principal amount at any one time
outstanding not exceeding the Swing Loan Commitment (the “Swing Loans”); provided
that  (i) after giving effect to any such
Swing Loan, the aggregate principal balance of any Lender’s Commitment
Percentage of all outstanding Loans (after giving effect to the Letter of
Credit Exposure) plus such Lender’s Commitment Percentage of all Swing
Loans, shall not exceed such Lender’s Commitment;  (ii)
in all events no Default or Event of Default shall have occurred and be
continuing; (iii) the aggregate principal amount outstanding under the Notes
(after giving effect to all amounts requested thereunder) plus the
Letter of Credit Exposure shall not at any time exceed the Total Commitment
Amount; (iv) no Swing Loan shall be used to repay a Swing Loan; and (v) no
Lender shall be in default of its obligations under this Agreement.  Swing Loans shall constitute “Loans” for all
purposes hereunder, but shall not be considered the utilization of a Lender’s
Commitment.  The funding of a Swing Loan
hereunder shall constitute a representation and warranty by the Borrower that
all of the conditions set forth in Sections 5 (with respect to any Swing Loans
made on the Effective Date) and Section 6 (with respect to all other Swing
Loans) have been satisfied on the date of such funding.


(b)                                 The
Swing Loans shall be evidenced by a separate promissory note of the Borrower in
substantially the form of Exhibit J hereto (the “Swing Loan Note”),
dated the date of this Agreement and completed with appropriate insertions.  The Swing Loan Note shall be payable to the
order of the Swing Loan Lender in such amount as may be outstanding from time
to time thereunder and shall be payable as set forth below.  The Borrower irrevocably authorizes the Swing
Loan Lender to make or cause to be made, at or about the time of the Borrowing
Date of any Swing Loan or at the time of receipt of any payment of principal
thereof, an appropriate notation on the Swing Loan Lender’s record reflecting
the making of such Swing Loan or (as the case may be) the receipt of such
payment.  The outstanding amount of the
Swing Loans set forth on the Swing Loan Lender’s record shall be prima  facie
evidence of the principal amount thereof owing and unpaid to the Swing Loan
Lender, but the failure to record, or any error in so recording, any such
amount on the Swing Loan Lender’s record shall not limit or otherwise affect 



 22
 









the obligations of
the Borrower hereunder or under the Swing Loan Note to make payments of
principal of or interest on any Swing Loan Note when due.


(c)                                  Each
borrowing of a Swing Loan shall be subject to the limits and restrictions for
Prime Rate Loans and LIBOR Loans set forth in this Agreement.  Borrower shall request a Swing Loan by
delivering to the Swing Loan Lender a Borrowing Request (or a telephonic
request confirmed promptly by hand delivery or telecopy to the Swing Loan
Lender of a written Borrowing Request signed by Borrower) no later than 12:00
p.m. (i) on the requested Borrowing Date with respect to a Prime Rate
Loan, and (ii) three (3) Business Days prior to the requested Borrowing Date,
with respect to a LIBOR Loan, specifying the amount of the requested Swing
Loan.  The Borrowing Request shall also
contain the statements and certifications required by Section 2.3(b)(i)-(v) (provided,
however, the minimum amount for such requested Swing Loan shall be
$100,000.00).  Each such Borrowing
Request shall be irrevocable and binding on the Borrower and shall obligate the
Borrower to accept such Swing Loan on the Borrowing Date.  Notwithstanding anything herein to the
contrary, a Swing Loan shall either be a Prime Rate Loan or, if the Borrower
has requested a LIBOR Loan (of any interest period) in the Borrowing Request
delivered in connection with such Swing Loan, a LIBOR Loan having an Interest
Period of seven (7) days (regardless of the Interest Period so requested), and
in the event that the Borrower fails to specify whether it has selected a Prime
Rate Loan or a LIBOR Loan, the Borrower shall be deemed conclusively to have
selected a Prime Rate Loan.  If the
Borrower requests a LIBOR Loan in the Borrowing Request delivered in connection
with such Swing Loan, then upon the date that the Lenders shall be required to
fund the Loans pursuant to Section 2.1A(d) to refund such Swing Loan, the
interest rate shall be reset to correspond to the rate applicable to a LIBOR
Loan with an Interest Period as specified in the Borrowing Request given by the
Borrower to the Administrative Agent in connection with such Swing Loan (such
Interest Period to commence on the date of such funding of Loans by the Lenders
to fund such Swing Loan), or if no Interest Period is so specified, then as a
Prime Rate Loan.  The proceeds of the
Swing Loan will be made available by the Swing Loan Lender to the Borrower at
the office of the Administrative Agent specified in Section 11.2 by crediting
the account of the Borrower at such office with such proceeds.  Each Swing Loan shall be deemed a LIBOR Loan
or Prime Rate Loan, as applicable, for purposes of this Agreement.


(d)                                 The
Swing Loan Lender shall within three (3) days after the Borrowing Date with
respect to such Swing Loan request each Lender, including the Swing Loan
Lender, to make a Revolving Credit Loan pursuant to Section 2.1 in an amount
equal to such Lender’s Commitment Percentage of the amount of the Swing Loan
outstanding on the date such notice is given, unless the Borrower has advised
Administrative Agent in the Borrowing Request for such Swing Loan that Borrower
shall repay such Swing Loan in full on the date that is seven (7) days after
the making of such Swing Loan.  Such
request shall be made in writing and in accordance with the requirements of
Section 2.3 without regard to the minimum and multiples specified therein
for the principal amount for Prime Rate Loans and LIBOR Loans, but subject to
the unutilized portion of the Total Commitment Amount and the conditions set
forth in Sections 5 and 6.  Borrower
hereby irrevocably authorizes and directs the Swing Loan Lender to so act on
its behalf, and agrees that any amount advanced to the Administrative Agent for
the benefit of the Swing Loan Lender pursuant to this Section 2.1A(d) shall be
considered a Loan pursuant to Section 2.1. 
Unless any of the events described in paragraph (h) or (i) of Section
9.1 shall have occurred (in which event the procedures of Section 2.1A(e) shall
apply), each Lender shall make the proceeds of its Loan available to the Swing
Loan Lender for the account of the Swing Loan Lender at the office of the
Administrative Agent specified in Section 11.2 prior to 1:00 p.m. in funds
immediately available on the date specified in such request just as if the
Lenders were funding directly to the Borrower, so that thereafter such
obligations of Borrower with respect to such Swing Loan shall be evidenced by
the Revolving Credit Notes.  The proceeds
of such Loan shall be immediately applied to repay the Swing Loans.  Administrative Agent may, at its option, also
request that the Lenders make a Loan as provided herein in the event that the
Borrower fails to repay a Swing Loan on its maturity date after having
indicated that it would so repay such Swing Loan.  Until such Loans pursuant to Section 2.1 are
made pursuant to this paragraph, interest shall accrue under the Swing Loan
only.


(e)                                  If
(i) prior to the making of a Loan pursuant to Section 2.1A(d) by all of
the Lenders, one of the events described in Section 9.1(h) or (i) shall have
occurred, or (ii) for any reason any Swing Loan cannot be refinanced by a
Revolving Credit Loan in accordance with Section 2.1A(d), each Lender
will, on the date such Loan pursuant to Section 2.1A(d) was to have been made,
purchase an undivided participating interest in the Swing Loan in an amount
equal to its Commitment Percentage of such Swing Loan.  Each Lender will, on the date such Loan
pursuant to Section 2.1A(d) was to have been made, transfer to the Swing Loan
Lender in immediately available 



 23
 









funds the amount
of its participation and upon receipt thereof the Swing Loan Lender will
deliver to such Lender a Swing Loan participation certificate dated the date of
receipt of such funds and in such amount.


(f)                                    Whenever
at any time after the Swing Loan Lender has received from any Lender such
Lender’s participating interest in a Swing Loan, the Swing Loan Lender receives
any payment on account thereof, the Swing Loan Lender will promptly distribute
to such Lender its participating interest in such amount (appropriately
adjusted in the case of interest payments to reflect the period of time during
which such Lender’s participating interest was outstanding and funded); provided,
however, that in the event that such payment received by the Swing Loan
Lender is required to be returned, such Lender will return to the Swing Loan
Lender any portion thereof previously distributed by the Swing Loan Lender to
it.


(g)                                 Each
Lender’s obligation to fund a Loan as provided in Section 2.1A(d) or to
purchase participating interests pursuant to Section 2.1A(e) shall be absolute
and unconditional and shall not be affected by any circumstance, including,
without limitation, (i) any setoff, counterclaim, recoupment, defense or other
right which such Lender or the Borrower or any Subsidiary Guarantor may have
against the Swing Loan Lender, the Borrower or any Subsidiary Guarantor or
anyone else for any reason whatsoever; (ii) the occurrence or continuance of a
Default or an Event of Default arising after the relevant Swing Loan was
advanced by the Swing Loan Lender; (iii) any adverse change in the condition
(financial or otherwise) of the Borrower or any Subsidiary Guarantor or any of
their respective Subsidiaries; (iv) any breach of this Agreement or any of the
other Loan Documents by the Borrower or any Subsidiary Guarantor or any Lender;
or (v) any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing.  Any
portions of a Swing Loan not so purchased or converted may be treated by the
Swing Loan Lender as a Loan which was not funded by the non-purchasing Lender as
contemplated in Section 9.1.  Each Swing
Loan, once so sold or converted, shall cease to be a Swing Loan for the
purposes of this Agreement, but shall be a Loan made by each Lender under its
Commitment.


2.2                                 Notes.


(a)                                  Revolving
Credit Notes.  The Loans (other than
the Swing Loans and Competitive Advances) of each Lender shall, if requested by
such Lender, be evidenced by a promissory note of the Borrower, substantially
in the form of Exhibit K, with appropriate insertions therein as to date
and principal amount (each, as endorsed or modified from time to time, a “Revolving
Credit Note” and, collectively with the Revolving Credit Notes of all other
Lenders, the “Revolving Credit Notes”), payable to the order of such
Lender for the account of its Applicable Lending Office in the initial
principal face amount equal to the original amount of the Commitment of such
Lender and representing the obligation of the Borrower to pay the lesser of (i)
the original amount of the Commitment of such Lender and (ii) the aggregate
unpaid principal balance of all Revolving Credit Loans of such Lender and such
Lender’s share of any payments made by the Issuing Lender pursuant to any
Letters of Credit and such Lender’s pro rata percentage of the aggregate
principal amount of all Swing Loans based on its Commitment Percentage, plus
interest and other amounts due and owing to the Lenders under the Loan
Documents.  No Lender shall have any
obligation to make Loans to the Borrower of more than the principal face amount
of its Revolving Credit Note.


(b)                                 The
Revolving Credit Notes Generally. 
Each Revolving Credit Note shall bear interest from the date thereof on
the unpaid principal balance thereof at the applicable interest rate or rates
per annum determined as provided in Section 2.9 and shall be stated to mature
on the Maturity Date.  The following
information shall be recorded by each Lender on its books:  (i) the date and amount of each Loan of such
Lender; (ii) its character as a Prime Rate Loan, a LIBOR Loan or a combination
thereof; (iii) the interest rate and Interest Period applicable to LIBOR Loans;
and (iv) each payment and prepayment of the principal thereof; provided, that
the failure of such Lender to make any such recordation or endorsement shall
not affect the obligations of the Borrower to make payment when due of any
amount owing under the Loan Documents.


2.3                                 Procedure for
Revolving Credit Loan Borrowings Other than Competitive Advances.


(a)                                  Revolving
Credit Loans.  Except for (i)
Revolving Credit Loans which the Borrower has requested to be made as Competitive
Advances (as to which the provisions of Section 2.4 shall apply), and (ii)
Revolving Credit Loans which the Borrower has requested to be made as Swing
Loans (as to which provisions of Section 2.1A shall apply), and subject to the
limitations set forth in Sections 2.1 and 2.3(c), the Borrower may borrow under
the Commitments on any Business Day between the Effective Date and the Maturity
Date by providing notice thereof in accordance with Section 2.3(b).



 24
 









(b)                                 Borrowing
Requests.  To request Revolving Credit
Loans pursuant to Section 2.3(a), the Borrower shall notify the Administrative
Agent of such request by telephone (i) in the case of a LIBOR Loan, not later
than 12:00 noon three (3) Business Days before the date of the proposed
borrowing of Revolving Credit Loans or (ii) in the case of a Prime Rate Loan,
not later than 12:00 noon one (1) Business Day before the date of such proposed
advance.  Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand delivery
or telecopy to the Administrative Agent of a written Borrowing Request signed
by the Borrower.  Each such telephonic
and written Borrowing Request shall specify the following information: (A) the
aggregate amount of the requested borrowing of Revolving Credit Loans;
(B) the date of such borrowing of Revolving Credit Loans, which shall be a
Business Day; (C) whether the requested Revolving Credit Loan is to be a
Prime Rate Loan or a LIBOR Loan; (D) in the case of a LIBOR Loan, the initial
Interest Period to be applicable thereto, which shall be a period contemplated
by the definition of the term “Interest Period”; and (E) the location and
number of the Borrower’s account to which funds are to be disbursed, which
shall comply with the requirements of Section 2.3(d).


(c)                                  Limits
on Advances.  Each borrowing of (i)
Prime Rate Loans shall be in a minimum aggregate principal amount equal to
$1,000,000 or such amount plus a whole multiple of $100,000 in excess thereof,
or, if less, the Available Commitment Amount, and (ii) LIBOR Loans shall
be in an aggregate principal amount equal to $5,000,000 or such amount plus a
whole multiple of $100,000 in excess thereof, or, if less, the Available
Commitment Amount.


(d)                                 Funding
of Revolving Credit Loans.  Upon
receipt of each Borrowing Request from the Borrower, the Administrative Agent
shall promptly notify each Lender of the contents thereof.  Subject to its receipt of the notice referred
to in the preceding sentence, each Lender will make the amount of its
Commitment Percentage of each borrowing of Revolving Credit Loans pursuant to
this Section available to the Administrative Agent for the account of the
Borrower at the office of the Administrative Agent set forth in Section 11.2
not later than 11:00 a.m. on the relevant Borrowing Date requested by the
Borrower in funds immediately available to the Administrative Agent at such
office.  The amounts so made available to
the Administrative Agent on the Borrowing Date will then, subject to the
satisfaction of the terms and conditions of this Agreement, as determined by
the Administrative Agent, be made available on such date to the Borrower by the
Administrative Agent at the office of the Administrative Agent specified in
Section 11.2 by crediting the account of the Borrower on the books of such
office with the aggregate of said amounts received by the Administrative Agent,
provided that Revolving Credit Loans made to finance the reimbursement of a
payment made by the Issuing Lender pursuant to a Letter of Credit as provided
in Section 2.5 shall be remitted by the Administrative Agent to the Issuing
Lender.


(e)                                  Effect
of Incomplete Borrowing Request.  If
no election is made as to the whether the Revolving Credit Loans shall be Prime
Rate Loans or LIBOR Loans, then the requested Revolving Credit Loans shall be
Prime Rate Loans.  If no Interest Period
is specified with respect to any requested borrowing of LIBOR Loans, then the
Borrower shall be deemed to have selected an Interest Period of one month’s
duration.


(f)                                    Administrative
Agent’s Assumption.  Unless the
Administrative Agent shall have received prior notice from a Lender (by
telephone or otherwise, such notice to be promptly confirmed by telecopy or
other writing) that such Lender will not make available to the Administrative
Agent such Lender’s pro rata share of the Loans (including, without limitation,
Revolving Credit Loans, Swing Loans and Competitive Advances), the
Administrative Agent may assume that such Lender has made such share available
to the Administrative Agent on the Borrowing Date in accordance with this
Section, provided that such Lender received notice of the proposed borrowing
from the Administrative Agent, and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower on the Borrowing Date a
corresponding amount.  If and to the
extent such Lender shall not have so made such pro rata share available to the
Administrative Agent, such Lender and the Borrower severally agree to pay to
the Administrative Agent forthwith on demand such corresponding amount (to the
extent not previously paid by the other), together with interest thereon for
each day from the date such amount is made available to the Borrower until the
date such amount is paid to the Administrative Agent, at a rate per annum equal
to, in the case of the Borrower, the applicable interest rate set forth in
Section 2.9 for Prime Rate Loans or LIBOR Loans, as initially requested by
Borrower, and, in the case of a payment to be made by such Lender, the greater
of the Federal Funds Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation plus any
administrative, processing or similar fees customarily charged by the
Administrative Agent in connection with the foregoing.  Such payment by the Borrower, however, shall
be without prejudice to its rights against such Lender.  If such Lender shall pay to the
Administrative Agent such corresponding 



 25
 









amount, such
amount so paid shall constitute such Lender’s Loan as part of the Loans for
purposes of this Agreement, which Loan shall be deemed to have been made by
such Lender on the Borrowing Date applicable to such Loans, but without
prejudice to the Borrower’s rights against such Lender.


(g)                                 Voluntary
Reduction or Termination of Commitments.


(i)                                     The
Borrower shall have the right, upon at least three Business Days’ prior written
notice to the Administrative Agent, at any time to terminate the Commitments or
from time to time to permanently reduce the Commitments, provided that
(A) the Total Commitment Amount shall not be reduced below an amount equal
to the sum of the aggregate principal balance of the Loans plus the
Letter of Credit Exposure plus the aggregate principal amount of all
Swing Loans (in each case after giving effect to any contemporaneous prepayment
of the Loans) then outstanding thereunder, and (B) any such reduction of
the Commitments shall be in the minimum amount of $5,000,000 or such amount
plus a whole multiple of $100,000 in excess thereof.  In the event that the Total Commitment Amount
is reduced below the Swing Loan Commitment, the Swing Loan Commitment shall be
reduced to an amount equal to the Total Commitment Amount, as reduced.  Upon receipt of each such notice of
termination or permanent reduction of Commitments from the Borrower, the
Administrative Agent shall promptly notify each Lender of the contents thereof.


(ii)                                  Reductions
of the Commitments shall be applied pro rata according to the Commitments of
each Lender, as the case may be. 
Simultaneously with each reduction or termination of the Commitments
under this Section, the Borrower shall prepay the Loans outstanding thereunder
by the amount, if any, by which the aggregate unpaid principal balance of such
Loans plus the Letter of Credit Exposure exceeds the amount of the
Commitments, as so reduced. 
Simultaneously with a termination of the Commitments under this Section,
the Borrower shall pay the Facility Fee accrued (but not yet paid) with respect
to the portion of the Commitment being terminated at such time.  If any prepayment is made under this Section
with respect to any LIBOR Loans, in whole or in part, prior to the last day of
the applicable Interest Period, the Borrower agrees to indemnify the Lenders in
accordance with Section 2.14.  No reduction
or termination of the Commitments may be reinstated.


2.4                                 Competitive
Advances.


(a)                                  Subject
to the terms and conditions hereof, at any time and from time to time from the
Effective Date through the Maturity Date, and provided that no Default or Event
of Default shall have occurred and be continuing, each Lender may in its sole
and absolute discretion make Competitive Advances to Borrower in such principal
amounts as Borrower may request pursuant to a Competitive Bid Request that do
not result in (i) the aggregate principal amount outstanding under the
Competitive Advance Notes (after giving effect to all amounts requested
thereunder) being in excess of 50% of the Total Commitment Amount, and (ii) the
aggregate principal amount outstanding under the Notes (after giving effect to
all amounts requested thereunder) plus the Letter of Credit Exposure
being in excess of the Total Commitment Amount. 
A Lender lending to the Borrower pursuant to this Section 2.4 shall
remain obligated to make Loans in accordance with its Commitment Percentage as
provided in Section 2.1.


(b)                                 Borrower
shall request Competitive Advances by submitting a duly completed Competitive
Bid Request to the Administrative Agent, which Competitive Bid Request shall
specify the relevant date, amount and maturity for the proposed Competitive
Advance and shall state whether a Competitive Bid is requested on the basis of
a fixed rate of interest expressed in multiples of 1/100th of
one basis point (a “Absolute Rate Bid”) or on the basis of a margin over LIBOR
(a “LIBOR Margin Bid”).  If a LIBOR
Margin Bid is requested, the maturity date shall be one of the Interest
Periods, and any such advance shall be a LIBOR Loan.  The proposed funding date shall be a Business
Day.  The Administrative Agent shall
incur no liability whatsoever hereunder in acting upon any Competitive Bid
Request purportedly made by an Authorized Signatory of Borrower, which hereby
agrees to indemnify the Administrative Agent from any loss, cost, expense or
liability as a result of so acting.  The
Competitive Bid Request must be received by the Administrative Agent not later
than 12:00 noon on a Business Day that is at least five (5) Business Days prior
to the date of the proposed Competitive Advance.



 26
 









(c)                                  Unless
the Administrative Agent otherwise agrees, in its sole and absolute discretion,
no Competitive Bid Request shall be made by Borrower if Borrower has within the
current calendar month submitted five (5) or more Competitive Bid Requests.


(d)                                 Each
Competitive Bid Request must be made for a Competitive Advance of at least
$5,000,000 and shall be in an integral multiple of $1,000,000.


(e)                                  No
Competitive Bid Request shall be made for a Competitive Advance with a maturity
of less than 7 days or more than 180 days, or with a maturity date
subsequent to the Maturity Date.  The
Borrower may request offers to make Competitive Advances for up to four (4)
Interest Periods in a single Competitive Bid Request, provided that in no event
shall Borrower be permitted to have more than four (4) different Interest
Periods outstanding at any one time with respect to all Competitive Advances.


(f)                                    Upon
receipt of each Competitive Bid Request from the Borrower, the Administrative
Agent shall promptly notify each Lender of the contents thereof.  Any Lender may, by written notice to the
Administrative Agent, advise the Administrative Agent that it elects not to be
so notified of Competitive Bid Requests, in which case the Administrative Agent
shall not notify such Lender of the Competitive Bid Request.


(g)                                 Each
Lender receiving a Competitive Bid Request may, in its sole and absolute
discretion, make or not make a Competitive Bid responsive to the Competitive
Bid Request.  Each Competitive Bid shall
be submitted so as to be received by the Administrative Agent not later than
12:00 noon (or, in the case of the Domestic Reference Lender, not later than
11:00 a.m.) on the date which is four (4) Business Days prior to the requested
Competitive Advance.  Any Competitive Bid
received by the Administrative Agent after 12:00 noon (or 11:00 a.m. in the
case of the Domestic Reference Lender) on such date shall be disregarded for
purposes of this Agreement.  The
Administrative Agent shall incur no liability whatsoever hereunder in acting
upon any Competitive Bid purportedly made by a Responsible Official of a
Lender, each of which hereby agrees to indemnify the Administrative Agent from
any loss, cost, expense or liability as a result of so acting with respect to
that Lender.


(h)                                 Each
Competitive Bid shall specify the fixed interest rate or the margin over LIBOR,
as applicable, for the offered Maximum Competitive Advance set forth in the
Competitive Bid.  The Maximum Competitive
Advance offered by a Lender in a Competitive Bid shall not exceed the
Competitive Advance requested and may be less than the Competitive Advance
requested by Borrower in the Competitive Bid Request, but shall be an integral
multiple of $1,000,000.  Any Competitive
Bid which offers an interest rate other than a fixed interest rate or a margin
over LIBOR, is in a form other than as set forth in Exhibit E or which
otherwise contains any term, condition, qualification or provision not
contained in the Competitive Bid Request (including without limitation a
requirement of a minimum advance) or is received after the time set forth in
Section 2.4(g) shall be disregarded for purposes of this Agreement.  A Competitive Bid once submitted to the
Administrative Agent shall, subject to the terms of Sections 2.12 and Section 6,
be irrevocable until 12:00 noon on the date which is three (3) Business Days
prior to the requested Competitive Advance set forth in the related Competitive
Bid Request, and shall expire by its terms at such time unless accepted by
Borrower on or prior thereto.


(i)                                     Promptly
after 12:00 noon (a) on the date which is four (4) Business Days prior to
the date of the proposed Competitive Advance, the Administrative Agent shall
notify Borrower of the names of the Lenders providing Competitive Bids to the
Administrative Agent at or before 12:00 noon on that date (or 11:00 a.m. in the
case of the Domestic Reference Lender) and satisfying the conditions of this
Section 2.4 and the Maximum Competitive Advance and fixed interest rate or
margin over LIBOR set forth by each such Lender in its Competitive Bid.


(j)                                     Borrower
may, in its sole and absolute discretion, reject any or all of the Competitive
Bids.  If Borrower accepts any
Competitive Bid, by telephone or in writing (provided that any acceptance by
telephone shall be confirmed promptly by hand delivery or telecopy of such
acceptance signed by Borrower), the following shall apply:  (i) Borrower must accept all Absolute
Rate Bids at all lower fixed interest rates before accepting any portion of a
Absolute Rate Bid at a higher fixed interest rate, (ii) Borrower must
accept all LIBOR Margin Bids at all lower margins over LIBOR before accepting
any portion of a LIBOR Margin Bid at a higher margin over LIBOR, (iii) if
two or more Lenders have submitted a Competitive Bid at the same fixed interest
rate or margin, then Borrowers must accept either all of such Competitive Bids
or accept such Competitive Bids in the same proportion as the Maximum
Competitive Advance of each Lender bears to the aggregate Maximum Competitive
Advances of all such 



 27
 









Lenders,
(iv) Borrower may not accept Competitive Bids for an aggregate amount in
excess of the requested Competitive Advance set forth in the Competitive Bid
Request, and (v) the principal amount of the Competitive Bids accepted must be
at least $5,000,000 and shall be in an integral multiple of $1,000,000.  Acceptance by Borrower of a LIBOR Margin Bid
or Absolute Rate Bid must be made prior to 12:00 noon on the date which is
three (3) Business Days prior to the requested Competitive Advance.  Acceptance of a Competitive Bid by Borrower
shall be accomplished by telephonic or written notification thereof to the
Administrative Agent (provided that any acceptance by telephone shall be
confirmed promptly by hand delivery or telecopy of such acceptance signed by
Borrower) and shall be irrevocable upon such notification.  The Administrative Agent shall promptly
notify each of the Lenders whose Competitive Bid has been accepted by Borrower
by telephone, which notification shall promptly be confirmed in writing
delivered in person or by telecopier to such Lenders.  Any Competitive Bid not accepted or rejected
by Borrower by 12:00 noon on the date which is three (3) Business Days prior to
the proposed Competitive Advance, shall be deemed rejected.


(k)                                  In
the case of a LIBOR Margin Bid, the Administrative Agent shall determine LIBOR
for the relevant Interest Period on the date which is three (3) Business Days
prior to the date of the proposed Competitive Advance, and shall promptly
thereafter notify Borrower and the Lenders whose LIBOR Margin Bids were
accepted by Borrower of such LIBOR rate.


(l)                                     A
Lender whose Competitive Bid has been accepted by Borrower shall make the
Competitive Advance in accordance with the Competitive Bid Request and with its
Competitive Bid, subject to the applicable conditions set forth in this
Agreement, by making funds immediately available to the Administrative Agent at
the office of the Administrative Agent set forth in Section 11.2 in the amount
of such Competitive Advance not later than 1:00 p.m. on the date set forth in
the Competitive Bid Request.  The
Administrative Agent shall then promptly make available to the Borrower the
aggregate amount of the Competitive Advances made available to the
Administrative Agent by crediting such amount in immediately available funds to
the account of the Borrower on the books of such office of Administrative
Agent.


(m)                               The
Administrative Agent shall notify Borrower and the Lenders promptly after any
Competitive Advance is made of the amounts and maturity of such Competitive
Advances and the identity of the Lenders making such Competitive Advances.


(n)                                 The
Competitive Advances made by a Lender shall, if requested by such Lender, be
evidenced by that Lender’s Competitive Advance Note.


(o)                                 Each
Competitive Advance shall be subject to all of the provisions of this Agreement
generally, provided, however, that a Competitive Advance shall not reduce a
Lender’s obligation to fund its Commitment Percentage of any Loan.  No Competitive Advance may be prepaid without
the prior written consent of the affected Lender.


2.5                                 Letters of Credit.


(a)                                                                                  Subject
to the terms and conditions set forth in this Agreement, at any time and from
time to time from the Effective Date through the day that is seven (7) days
prior to the Maturity Date, the Issuing Lender shall issue such Letters of
Credit as the Borrower may request upon the delivery of a written request in
the form of Exhibit L hereto (a “Letter of Credit Request”) to the
Issuing Lender, provided that (i) no Default or Event of Default shall have
occurred and be continuing, (ii) upon issuance of such Letter of Credit, the
outstanding Letters of Credit (including Letters of Credit accepted but unpaid)
shall not exceed Fifty Million and No/100 Dollars ($50,000,000.00), (iii) in no
event shall the amount of the Loans outstanding and the amount of Letters of
Credit outstanding (after giving effect to the Letter of Credit Exposure)
exceed the Total Commitment Amount, (iv) the conditions set forth in Sections 5
and 6 shall have been satisfied, and (v) in no event shall any amount drawn
under a Letter of Credit be available for reinstatement or a subsequent drawing
under such Letter of Credit.  Each Letter
of Credit Request shall be executed by an Authorized Signatory of the
Borrower.  The Issuing Lender shall not
be required to issue any Letter of Credit if any Lender is at such time a
Defaulting Lender hereunder, unless the Issuing Lender has entered into
satisfactory arrangements with the Borrower or such Defaulting Lender to
eliminate the Issuing Lender’s risk with respect to such Defaulting
Lender.  The Issuing Lender shall not be
under any obligation to issue any Letter of Credit if any order, judgment or
decree of any Governmental Authority or arbitrator shall by its terms purport
to enjoin or restrain the Issuing Lender from issuing such Letter of Credit, or
any Law applicable to 



 28
 









the
Issuing Lender or any request or directive (whether or not having the force of
law) from any Governmental Authority with jurisdiction over the Issuing Lender
shall prohibit, or request that the Issuing Lender refrain from, the issuance
of letters of credit generally or such Letter of Credit in particular or shall
impose upon the Issuing Lender with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which the Issuing Lender is
not otherwise compensated hereunder) not in effect on the Effective Date, or
shall impose upon the Issuing Lender any unreimbursed loss, cost or expense
which was not applicable on the Effective Date and which the Issuing Lender in
good faith deems material to it.  In
addition, the Issuing Lender shall not be required to issue any Letter of
Credit if the issuance of such Letter of Credit would violate one or more
policies of the Issuing Lender applicable to letters of credit generally.  The Issuing Lender shall be entitled to
conclusively rely on such Person’s authority to request a Letter of Credit on
behalf of such Borrower.  The Issuing
Lender shall have no duty to verify the authenticity of any signature appearing
on a Letter of Credit Request.  The
Borrower assumes all risks with respect to the use of the Letters of
Credit.  Unless the Issuing Lender and
the Required Lenders otherwise consent, the term of any Letter of Credit (other
than any extension of the original term of any Letter of Credit pursuant to
Section 2.5(d)) shall not exceed a period of time commencing on the issuance of
the Letter of Credit and ending on the date which is seven (7) days prior to
the Maturity Date (but in any event the term shall not extend beyond the
Maturity Date).  The amount available to
be drawn under any Letter of Credit shall reduce on a dollar for dollar basis
the amount available to be drawn under the Total Commitment Amount as a Loan.  All Existing Letters of Credit shall be
deemed to have been issued pursuant hereto as Letters of Credit, and from and
after the Effective Date shall be subject to and governed by the terms and
conditions hereof.


(b)                                 Each
Letter of Credit Request shall be submitted to the Issuing Lender no later than
11:00 a.m. at least five (5) Business Days (or such later time as may be
permitted by the Issuing Lender, in its discretion) prior to the date upon
which the requested Letter of Credit is to be issued.  Each such Letter of Credit Request shall contain
(i) a statement as to the purpose for which such Letter of Credit shall be used
(which purpose shall be in accordance with the terms of Section 2.15 of this
Agreement), and (ii) a certification by an Authorized Signatory of the Borrower
that the Borrower is and will be in compliance with all covenants under the
Loan Documents after giving effect to the issuance of such Letter of
Credit.  The Borrower shall further
deliver to the Issuing Lender such additional applications and documents as the
Issuing Lender may require, in conformity with the then standard practices of
its letter of credit department, in connection with the issuance of such Letter
of Credit; provided that in the event of any conflict, the terms of this
Agreement shall control.


(c)                                  Promptly
after receipt of any Letter of Credit Request, the Issuing Lender will confirm
with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Request from
the Borrower and, if not, the Issuing Lender will provide the Administrative
Agent with a copy thereof.  Unless the
Issuing Lender has received written notice from any Lender, the Administrative
Agent, the Borrower or any Subsidiary Guarantor, at least one Business Day
prior to the requested date of issuance or amendment of the applicable Letter
of Credit, that one or more applicable conditions contained in Section 6 shall
not then be satisfied, then, subject to the terms and conditions set forth in
this Agreement (including without limitation approval by Issuing Lender of the
content of the Letter of Credit Request), the Issuing Lender shall, on the
requested date, issue a Letter of Credit for the account of the Borrower or
enter into the applicable amendment, as the case may be, in each case in
accordance with the Issuing Lender’s usual and customary business
practices.  Each Letter of Credit shall
be in form and substance satisfactory to the Issuing Lender in its sole
discretion.  Upon issuance of a Letter of
Credit, the Issuing Lender shall provide copies of each Letter of Credit to the
Lenders.


(d)                                 If
the Borrower so requests in any applicable Letter of Credit Request, the
Issuing Lender shall, subject to the terms and conditions hereof with respect
to the issuance of Letters of Credit, agree to issue a Letter of Credit that
has automatic extension provisions (each, an “Auto-Extension Letter of Credit”);
provided that any such Auto-Extension Letter of Credit must permit the
Issuing Lender to prevent any such extension at least once in each twelve-month
period (commencing with the date of issuance of such Letter of Credit) by
giving at least thirty (30) days’ prior written notice to the beneficiary
thereof (the “Non-Extension Notice Date”) in each such twelve-month
period.  Unless otherwise directed by the
Issuing Lender, the Borrower shall not be required to make a specific request
to the Issuing Lender for any such extension. 
Once an Auto-Extension Letter of Credit has been issued, the Lenders
shall be deemed to have authorized (but may not require) the Issuing Lender to
permit the extension of such Letter of Credit, at any time to an expiry date
that may or may not extend beyond the Maturity Date; provided, however, that
the Issuing Lender shall not permit any such extension if (i) the Issuing
Lender has determined that it would not be permitted, or would have no
obligation, at such time to issue such Letter of Credit in its revised form (as
extended) under the terms hereof (by reason of the provisions of Section
2.05(a) or otherwise), or (ii) it has 



 29
 









received notice
(which may be by telephone or in writing) on or before the day that is thirty
(30) Business Days before the Non-Extension Notice Date (A) from the
Administrative Agent that the Required Lenders have elected not to permit such
extension or (B) from the Administrative Agent, any Lender or the Borrower that
one or more of the applicable conditions specified in Section 6 is not then
satisfied, and in each such case directing the Issuing Lender not to permit
such extension, and provided further, however, that in the event that the
expiry date of any Letter of Credit (whether or not such Letter of Credit is an
Auto-Extension Letter of Credit) shall extend beyond the date that is after the
Maturity Date and if as of the date that is seven (7) days prior to the
Maturity Date, any such Letter of Credit may for any reason remain outstanding
and partially or wholly undrawn, the Borrower shall immediately Cash
Collateralize the Letter of Credit Exposure (in an amount equal to such Letter
of Credit Exposure).


(e)                                  Upon
the issuance of a Letter of Credit, each Lender shall be deemed to have
purchased a participation therein from Issuing Lender in an amount equal to its
respective Commitment Percentage of the amount of such Letter of Credit,
provided, however, that with respect to the Existing Letters of Credit, on the
Effective Date, each Lender shall be deemed to have purchased a
subparticipation therein from the Issuing Lender in an amount equal to its
respective Commitment Percentage of the amount of the Existing Letters of
Credit.  No Lender’s obligation to
participate or subparticipate, as applicable, in a Letter of Credit shall be
affected by any other Lender’s failure to perform as required herein with
respect to such Letter of Credit or any other Letter of Credit.


(f)                                    In
connection with the issuance of each Letter of Credit, the Borrower shall pay
(i) directly to the Issuing Lender for its own account, a fee calculated
at the rate of one-eighth of one percent (0.125%) per annum times the daily
maximum amount available to be drawn under such Letter of Credit (which fee
shall not, on an annual basis, be less than $500.00 in any event) (the “Letter
of Credit Fronting Fees”), and (ii) the Administrative Agent for the
accounts of the Lenders in accordance with their respective percentage shares
of participation or subparticipation, as applicable, in such Letter of Credit,
a fee equal to the Applicable Margin times the daily maximum amount available
to be drawn under such Letter of Credit (the “Letter of Credit Commission Fees”).  The Letter of Credit Fronting Fees payable
under clause (i) above shall be (A) calculated on the basis of a 360-day year
and (B) payable (w) quarterly in arrears on the last Business Day of each
March, June, September, and December, (x) upon the expiration or return of any
Letter of Credit, (y) on any termination of the Total Commitment Amount, and
(z) on the Maturity Date.  The Letter of
Credit Commission Fees payable under clause (ii) above shall be (A) calculated on
the basis of a 360-day year and (B) payable (x) quarterly in arrears on the
last Business Day of each March, June, September, and December, (y) on any
termination of the Total Commitment Amount, and (z) on the Maturity Date.  In addition to and concurrently with the
payment of the Letter of Credit Commission Fees and the Letter of Credit
Fronting Fees, Borrower shall pay directly to, the applicable Issuing Lender
its customary issuance, presentation, amendment, and other processing fees, and
all other standard costs and charges of such Issuing Lender relating to letters
of credit as from time to time in effect (such charges not to exceed $500.00).


(g)                                 In
the event that any amount is drawn under a Letter of Credit by the beneficiary
thereof, the Borrower shall reimburse the Issuing Lender not later than 11:00
a.m. on the date of such payment by the Issuing Lender through the
Administrative Agent in an amount equal to the amount of such drawing.  If the Borrower fails to so reimburse the
Issuing Lender by such time, Borrower shall be deemed to have requested a Prime
Rate Loan on such date in an amount equal to the amount of such drawing and
such amount drawn shall be treated as an outstanding Prime Rate Loan under this
Agreement and the Administrative Agent shall promptly notify each Lender by
telex, telecopy, telegram, telephone (confirmed in writing) or other similar
means of transmission, and each Lender shall promptly and unconditionally pay
to the Administrative Agent, for the Issuing Lender’s own account, an amount
equal to such Lender’s Commitment Percentage of such Letter of Credit (to the
extent of the amount drawn).  If and to
the extent any Lender shall not make such amount available on the Business Day
on which such draw occurs, such Lender agrees to pay such amount to the
Administrative Agent forthwith on demand, together with interest thereon, for
each day from the date on which such draw occurred until the date on which such
amount is paid to the Administrative Agent, at a rate per annum equal to the
greater of the Federal Funds Effective Rate and a rate determined by the
Issuing Lender in accordance with banking industry rules on interbank
compensation, plus any administrative, processing or similar fees customarily
charged by the Issuing Lender in connection with the foregoing.  Further, such Lender shall be deemed to have
assigned any and all payments made of principal and interest on its Loans,
amounts due with respect to its participations and subparticipations in Letters
of Credit and any other amounts due to it hereunder to the Administrative Agent
to fund the amount of any drawn Letter of Credit which such Lender was required
to fund pursuant to this Section 2.5(g) until such amount has been funded (as a
result of such assignment or otherwise). 
In the event of any such failure or refusal, the Lenders not so failing
or 



 30
 









refusing shall be
entitled to a priority position for such amounts as provided in Section
9.1.  The failure of any Lender to make
funds available to the Administrative Agent in such amount shall not relieve
any other Lender of its obligation hereunder to make funds available to the
Administrative Agent pursuant to this Section 2.5(g).


(h)                                 If
after the issuance of a Letter of Credit pursuant to Section 2.5(c) by the
Issuing Lender, but prior to the funding of any portion thereof by a Lender
pursuant to Section 2.5(g), one of the events described in Section 9.1(h) or
(i) shall have occurred, each Lender will, on the date such Loan pursuant to
Section 2.5(g) was to have been made, transfer to the Issuing Lender in
immediately available funds the amount of its participation or
subparticipation, as applicable, based on that Loan that it was to have made on
such date and upon receipt thereof the Issuing Lender will deliver to such Lender
a Letter of Credit participation certificate or subparticipation certificate,
as applicable, dated the date of receipt of such funds and in such amount.


(i)                                     Whenever
at any time after the Issuing Lender has received from any Lender such Lender’s
payment of funds under a Letter of Credit and thereafter the Issuing Lender
receives any payment on account thereof, then the Issuing Lender will
distribute to such Lender its participating interest or subparticipating
interest, as applicable, in such amount (appropriately adjusted in the case of
interest payments to reflect the period of time during which such Lender’s
participating interest or subparticipating interest, as applicable, was
outstanding and funded); provided, however, that in the event
that such payment received by the Issuing Lender is required to be returned,
such Lender will return to the Issuing Lender any portion thereof previously
distributed by the Issuing Lender to it.


(j)                                     The
issuance of any supplement, modification, amendment, renewal or extension to or
of any Letter of Credit shall be treated in all respects the same as the
issuance of a new Letter of Credit.


(k)                                  The
obligations of the Borrower to the Lenders under this Agreement with respect to
Letters of Credit shall be absolute, unconditional and irrevocable, and shall
be paid and performed strictly in accordance with the terms of this Agreement,
under all circumstances whatsoever, including, without limitation, the
following circumstances:  (i) any
improper use which may be made of any Letter of Credit or any improper acts or
omissions of any beneficiary or transferee of any Letter of Credit in
connection therewith; (ii) the existence of any claim, set-off, defense or any
right which the Borrower may have at any time against any beneficiary or any
transferee of any Letter of Credit (or persons or entities for whom any such
beneficiary or any such transferee may be acting) or the Lenders (other than
the defense of payment to the Lenders in accordance with the terms of this
Agreement) or any other person, whether in connection with any Letter of
Credit, this Agreement, any other Loan Document, or any unrelated transaction;
(iii) any statement or any other documents presented under any Letter of Credit
proving to be insufficient, forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect whatsoever; (iv)
any breach of any agreement between Borrower and any beneficiary or transferee
of any Letter of Credit; (v) any irregularity in the transaction with respect
to which any Letter of Credit is issued, including any fraud by the beneficiary
or any transferee of such Letter of Credit; (vi) payment by the Issuing Lender
under any Letter of Credit against presentation of a sight draft or a certificate
which does not comply with the terms of such Letter of Credit, provided that
such payment shall not have constituted gross negligence or willful misconduct
on the part of the Issuing Lender, and (vii) any other circumstance or
happening whatsoever, whether or not similar to any of the foregoing, provided
that such other circumstances or happenings shall not have been the result of
gross negligence or willful misconduct on the part of the Issuing Lender.


(l)                                     Borrower
assumes all risks of the acts, omissions, or misuse of any Letter of Credit by
the beneficiary thereof.  Neither
Administrative Agent, Issuing Lender nor any Lender will be responsible for (i)
the form, validity, sufficiency, accuracy, genuineness or legal effect of any
Letter of Credit or any document submitted by any party in connection with the
issuance of any Letter of Credit, even if such document should in fact prove to
be in any or all respects invalid, insufficient, inaccurate, fraudulent or
forged; (ii) the form, validity, sufficiency, accuracy, genuineness or legal
effect 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 any beneficiary of any Letter of Credit to comply
fully with the conditions required in order to demand payment under a Letter of
Credit; (iv) errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or otherwise; (v)
errors in interpretation of technical terms; (vi) any loss or delay in the
transmission or otherwise of any document or draft required by or from a
beneficiary in order to make a disbursement under a Letter of Credit or the
proceeds thereof; (vii) the misapplication by the beneficiary of any Letter of
Credit of the proceeds of any drawing under such Letter 



 31
 









of Credit; and
(viii) any consequences arising from causes beyond the control of Administrative
Agent or any Lender.  None of the
foregoing will affect, impair or prevent the vesting of any of the rights or
powers granted to Administrative Agent, Issuing Lender or the Lenders
hereunder.  In furtherance and extension
and not in limitation or derogation of any of the foregoing, any act taken or
omitted to be taken by Administrative Agent, Issuing Lender or the other
Lenders in good faith will be binding on Borrower and will not put
Administrative Agent, Issuing Lender or the other Lenders under any resulting
liability to Borrower.


(m)                               Unless
otherwise expressly agreed by the Issuing Lender and the Borrower, when a
Letter of Credit is issued (including any such agreement applicable to an
Existing Letter of Credit), the rules of the ISP shall apply to each Letter of
Credit.


2.6                                 Repayment of Loans;
Evidence of Debt.


(a)                                  Promise
to Pay.  The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of
each Lender the then unpaid principal amount of each Loan on the Maturity Date;
provided, however, that Swing Loans shall be paid pursuant to Section 2.1A and
Competitive Advances shall be paid pursuant to Section 2.4.


(b)                                 Lenders’
Accounts.  Each Lender shall maintain
in accordance with its usual practice an account or accounts evidencing the
debt of the Borrower to such Lender resulting from each Loan made by such
Lender, including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder.


(c)                                  Administrative
Agent’s Accounts.  The Administrative
Agent shall maintain accounts in which it shall record (i) the amount of each
Loan, Competitive Advance and payment made by the Issuing Lender pursuant to a
Letter of Credit made hereunder, the type of Advance thereof and the Interest Period
applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender hereunder
and (iii) the amount of any other sum received by the Administrative Agent
hereunder for the account of the Lenders and each Lender’s share thereof.


(d)                                 Entries
Made in Accounts.  The entries made
in the accounts maintained pursuant to paragraphs (b) and (c) of this Section
shall, to the extent not inconsistent with any entries made in any Note and
absent manifest error, be prima facie evidence of the existence and amounts of
the obligations recorded therein, provided that the failure of any Lender, the
Swing Loan Lender or the Administrative Agent, to maintain such accounts or any
error therein shall not in any manner affect the obligation of the Borrower to
repay the Loans or any payment made by the Issuing Lender pursuant to a Letter
of Credit in accordance with the terms of this Agreement or otherwise to make
any payments in accordance with the Loan Documents.


(e)                                  Loans
Evidenced by Notes.  The Loans and
interest thereon shall, upon request of the applicable Lenders, be evidenced by
one or more Notes in like form payable to the order of the payee named therein
and its registered assigns.


2.7                                 Prepayments of the
Loans.


(a)                                  Voluntary
Prepayments. The Borrower may, at its option, prepay the Prime Rate Loans
and LIBOR Loans, in whole or in part, without premium or penalty (other than
any indemnification amounts, as provided for in Section 2.14) at any time and
from time to time by notifying the Administrative Agent in writing not later
than the Business Day on which Loans consisting of Prime Rate Loans are prepaid
and at least three Business Days prior to the proposed prepayment date in the
case of Loans consisting of LIBOR Loans, specifying the Loans to be prepaid
consisting of Prime Rate Loans, LIBOR Loans or a combination thereof, the
amount to be prepaid and the date of prepayment.  Upon receipt of such notice, the Administrative
Agent shall promptly notify each Lender of the contents thereof.  Partial prepayments of (i) Prime Rate Loans
and/or LIBOR Loans shall be in an aggregate minimum principal amount of
$500,000 or such amount plus a whole multiple of $500,000 in excess thereof and
(ii) Swing Loans shall be in a minimum principal amount of $100,000, or,
if less, the outstanding principal balance thereof.  After giving effect to any partial prepayment
with respect to LIBOR Loans which were converted on the same date and which had
the same Interest Period, the outstanding principal amount of such LIBOR Loans
shall be at least (subject to Section 2.8(a)) $1,000,000 or such amount plus a
whole multiple of $100,000 in excess thereof. 




 32
 









Any Loans prepaid
may be reborrowed as provided in Section 2.1, 2.1A and 2.4.  Notwithstanding the foregoing, no prior
notice shall be required for the prepayment of any Swing Loan.


(b)                                 Mandatory
Prepayments.  If not sooner paid, the
principal Indebtedness evidenced by the Notes shall be payable as follows:


(i)                                     the
amount, if any, by which the principal Indebtedness evidenced by the Revolving
Credit Notes (after giving effect to all amounts disbursed thereunder) plus
the Letter of Credit Exposure plus the aggregate amount of Swing Loans
outstanding, at any time exceeds the Total Commitment Amount shall be payable
immediately;


(ii)                                  the
amount, if any, by which the outstanding principal amount of the Revolving
Credit Loans plus the Letter of Credit Exposure plus the
aggregate amount of Swing Loans outstanding, at any time exceeds the Total
Commitment Amount shall be payable immediately;


(iii)                               the
principal Indebtedness evidenced by each Competitive Advance Note shall be
payable on the maturity date of each Competitive Advance in the amount of such
Competitive Advance; and


(iv)                              the
principal Indebtedness evidenced by the Notes shall in any event be payable on
the Maturity Date.


Upon the
occurrence of an event described in Section 2.7(b)(i) or (ii) above, Borrower
shall immediately upon demand from Administrative Agent pay the amount of such
excess to the Administrative Agent first for the account of Swing Loan Lender
for application to outstanding Swing Loans and second for the respective
accounts of the Lenders for application first to Prime Rate Loans and then to
LIBOR Loans


(c)                                  In
General.  If any prepayment is made
in respect of any Advance, in whole or in part, prior to the last day of the
applicable Interest Period, the Borrower agrees to indemnify the Lenders in
accordance with Section 2.14.


(d)                                 Partial
Prepayments.  Each partial prepayment
of the Loans (other than Prime Rate Loans) under Section 2.7(a) shall be
accompanied by the payment of accrued interest on the principal prepaid to the
date of payment and, after payment of such interest, shall be applied, in the
absence of instruction by the Borrower, first to the principal of any
outstanding Swing Loans, and then to the Lenders in accordance with the
provisions of Section 3.2.


2.8                                 Conversions.


(a)                                  Conversion
Elections.  The Borrower may elect
from time to time to convert LIBOR Loans to Prime Rate Loans by giving the
Administrative Agent at least one Business Day’s prior irrevocable notice of
such election, specifying the amount to be so converted, provided, that any
such conversion of LIBOR Loans shall only be made on the last day of the
Interest Period applicable thereto.  In
addition, the Borrower may elect from time to time to convert Prime Rate Loans
to LIBOR Loans or to convert LIBOR Loans to new LIBOR Loans by giving the
Administrative Agent at least three (3) Business Days prior irrevocable notice
of such election, specifying the amount to be so converted and the initial
Interest Period relating thereto, provided that any such conversion of Prime
Rate Loans to LIBOR Loans shall only be made on a Business Day and any such conversion
of LIBOR Loans to new LIBOR Loans shall only be made on the last day of the
Interest Period applicable to the LIBOR Loans which are to be converted to such
new LIBOR Loans.  Each such notice shall
be in the form of Exhibit M and must be delivered to the Administrative
Agent prior to 12:00 noon on the Business Day required by this Section for the
delivery of such notices to the Administrative Agent.  The Administrative Agent shall promptly
provide the Lenders with notice of any such election.  Prime Rate Loans and LIBOR Loans may be
converted pursuant to this Section in whole or in part, provided that
conversions of Prime Rate Loans to LIBOR Loans, or LIBOR Loans to new LIBOR
Loans, shall be in an aggregate principal amount of $5,000,000 or such amount
plus a whole multiple of $100,000 in excess thereof.  This Section shall not apply to Competitive
Advances or Swing Loans, which may not be converted or continued beyond the
Interest Period applicable thereto.



 33
 









(b)                                 Effect
on Conversions if an Event of Default. 
Notwithstanding anything in this Section to the contrary, no Prime Rate
Loan may be converted to a LIBOR Loan, and no LIBOR Loan may be converted to a
new LIBOR Loan, if a Default or Event of Default has occurred and is continuing
either (i) at the time the Borrower shall notify the Administrative Agent of
its election to convert or (ii) on the requested Conversion Date.  In such event, such Prime Rate Loan shall be
automatically continued as a Prime Rate Loan or such LIBOR Loan shall be
automatically converted to a Prime Rate Loan on the last day of the Interest
Period applicable to such LIBOR Loan.


(c)                                  Conversion
not a Borrowing.  Each conversion
shall be effected by each Lender by applying the proceeds of its new Prime Rate
Loan or LIBOR Loan, as applicable, to its Advances (or portion thereof) being
converted (it being understood that any such conversion shall not constitute a
borrowing for purposes of Sections 4, 5 or 6).


2.9                                 Interest Rate and
Payment Dates.


(a)                                  Prior
to Maturity.  Except as otherwise
provided in Section 2.9(b), prior to the Maturity Date, the Loans shall bear
interest on the outstanding principal balance thereof at the applicable
interest rate or rates per annum set forth below:


	
  ADVANCES

  	
   

  	
  RATE

  
	
   

  	
   

  	
   

  
	
  Each Prime Rate
  Loan

  	
   

  	
  Prime Rate plus the Applicable Margin.

  
	
   

  	
   

  	
   

  
	
  Each LIBOR Loan

  	
   

  	
  LIBOR for the applicable Interest Period plus the
  Applicable Margin.

  
	
  Each Competitive
  Advance

  	
   

  	
  The rate for the applicable Competitive Advance
  determined pursuant to Section 2.4.

  
	
  Swing Loans

  	
   

  	
  The rate for the applicable Swing Loan determined
  pursuant to Section 2.1A.

  



 


(b)                                 Event
of Default.  After the occurrence and
during the continuance of an Event of Default, the outstanding principal
balance of (i) the LIBOR Rate Loans and any overdue interest with respect
thereto shall bear interest, whether before or after the entry of any judgment
thereon, at a rate per annum equal to LIBOR for the applicable Interest Period
plus the Applicable Margin plus 2% and (ii) the Prime Rate Loans and any
overdue interest with respect thereto or other overdue amount payable under the
Loan Documents shall bear interest, whether before or after the entry of any
judgment thereon, at a rate per annum equal to the Prime Rate plus 2% (the “Default
Rate”).


(c)                                  Interest
Payment Dates.  Accrued interest on
each Loan shall be payable in arrears on each Interest Payment Date for such
Loan, provided that (i) interest accrued pursuant to paragraph (b) of this
Section shall be payable on demand, (ii) in the event of any repayment or
prepayment of any Loan, accrued interest on the principal amount repaid or
prepaid shall be payable on the date of such repayment or prepayment and (iii)
in the event of any conversion of any LIBOR Loans prior to the end of the
current Interest Period therefor, accrued interest on such Loan shall be
payable on the effective date of such conversion.


(d)                                 General.  Interest on (i) Prime Rate Loans shall be
calculated on the basis of a year of 365 or 366 days, as the case may be, and
(ii) LIBOR Loans shall be calculated on the basis of a 360-day year, in
each case for the actual number of days elapsed, including the first day but
excluding the last.  Any change in the
interest rate on the Loans resulting from a change in the Prime Rate or a Pricing
Level shall become effective as of the opening of business on the day on which
such change shall become effective.  The
Administrative Agent shall, as soon as practicable, notify the Borrower and the
Lenders of the effective date and the amount of each such change in the Prime
Rate or a Pricing Level, but any failure to so notify shall not in any manner
affect the obligation of the Borrower to pay interest on the Loans in the
amounts and on the dates required.  Each
determination of the Prime Rate, a LIBOR or a Pricing Level by the
Administrative Agent pursuant to this Agreement shall be conclusive and binding
on the Borrower and the Lenders absent manifest error.  At no time shall the interest rate payable on
the Loans of any Lender (including Swing Loan Lender), together with the
Facility Fee and all other amounts payable under the Loan Documents, to the
extent the same are construed to constitute interest, exceed the Highest Lawful
Rate.  If interest payable to a Lender
(including Swing Loan Lender) on any date would exceed the maximum 



 34
 









amount permitted
by the Highest Lawful Rate, such interest payment shall automatically be
reduced to such maximum permitted amount, and interest for any subsequent
period, to the extent less than the maximum amount permitted for such period by
the Highest Lawful Rate, shall be increased by the unpaid amount of such
reduction.  Any interest actually
received for any period in excess of such maximum allowable amount for such
period shall be deemed to have been applied as a prepayment of the Loans.  The Borrower acknowledges that the Prime Rate
is only one of the bases for computing interest on loans made by the Lenders,
and by basing interest payable on Prime Rate Loans on the Prime Rate, the
Lenders have not committed to charge, and the Borrower has not in any way
bargained for, interest based on a lower or the lowest rate at which the
Lenders may now or in the future make loans to other borrowers.


2.10                           Substituted Interest Rate.


In
the event that (i) the Administrative Agent shall have reasonably determined
(which determination shall be conclusive and binding upon the Borrower) that by
reason of circumstances affecting the interbank eurodollar market adequate and
reasonable means do not exist for ascertaining the LIBOR applicable pursuant to
Section 2.9 or (ii) the Required Lenders shall have notified the Administrative
Agent that they have reasonably determined (which determination shall be
conclusive and binding on the Borrower) that the applicable LIBOR will not adequately
and fairly reflect the cost to such Lenders of maintaining or funding loans
bearing interest based on such LIBOR, with respect to any portion of the Loans
that the Borrower has requested be made as LIBOR Loans or LIBOR Loans that will
result from the requested conversion of any portion of the Advances into LIBOR
Loans (each, an “Affected Advance”), the Administrative Agent shall promptly
notify the Borrower and the Lenders (by telephone or otherwise, to be promptly
confirmed in writing) of such determination, on or, to the extent practicable,
prior to the requested Borrowing Date or Conversion Date for such Affected
Advances.  If the Administrative Agent
shall give such notice, (a) any Affected Advances shall be made as Prime Rate
Loans, (b) the Advances (or any portion thereof) that were to have been
converted to Affected Advances shall be converted to or continued as Prime Rate
Loans and (c) any outstanding Affected Advances shall be converted, on the
last day of the then current Interest Period with respect thereto, to Prime
Rate Loans.  Until any notice under
clauses (i) or (ii), as the case may be, of this Section has been withdrawn by
the Administrative Agent (by notice to the Borrower promptly upon either (x)
the Administrative Agent having determined that such circumstances affecting
the LIBOR market no longer exist and that adequate and reasonable means do
exist for determining the LIBOR pursuant to Section 2.9 or (y) the
Administrative Agent having been notified by such Required Lenders that circumstances
no longer render the Advances (or any portion thereof) Affected Advances), no
further LIBOR Loans shall be required to be made by the Lenders nor shall the
Borrower have the right to convert all or any portion of the Loans to LIBOR
Loans.


2.11                           Taxes; Net Payments.


(a)                                  All
payments made by the Borrower or any Subsidiary Guarantor under the Loan
Documents shall be made free and clear of, and without reduction for or on
account of, any taxes, levies, imposts, deductions, charges or withholdings
required by law to be withheld from any amounts payable under the Loan
Documents.  A statement setting forth the
calculations of any amounts payable pursuant to this paragraph submitted by a
Lender to the Borrower shall be conclusive absent manifest error.  The obligations of the Borrower under this
Section shall survive the termination of this Agreement and the Commitments and
the payment of the Notes and all other amounts payable under the Loan
Documents.


(b)                                 Each
Lender which is a foreign corporation within the meaning of Section 1442 of the
Code shall deliver to the Borrower such certificates, documents or other
evidence as the Borrower may reasonably require from time to time as are
necessary to establish that such Lender is not subject to withholding under Section
1441 or 1442 of the Code or as may be necessary to establish, under any law
hereafter imposing upon the Borrower, an obligation to withhold any portion of
the payments made by the Borrower under the Loan Documents, that payments to
the Administrative Agent on behalf of such Lender are not subject to
withholding.


2.12                           Illegality.


Notwithstanding
any other provisions herein, if any law, regulation, treaty or directive
hereafter enacted, promulgated, approved or issued, or any change in any
presently existing law, regulation, treaty or directive, or in the
interpretation or application thereof, shall make it unlawful for any Credit
Party to make or maintain its LIBOR Loans as contemplated by this Agreement,
such Credit Party shall so notify the Administrative Agent and the 



 35
 









Administrative
Agent shall forthwith give notice thereof to the other Credit Parties and the
Borrower, whereupon (a) the commitment of such Credit Party hereunder to make
LIBOR Loans or convert Prime Rate Loans to LIBOR Loans shall forthwith be
suspended and (b) such Credit Party’s Loans then outstanding as LIBOR Loans
affected hereby, if any, shall be converted automatically to Prime Rate Loans
on the last day of the then current Interest Period applicable thereto or
within such earlier period as required by law. 
If the commitment of any Credit Party with respect to LIBOR Loans is
suspended pursuant to this Section and thereafter it is once again legal for
such Credit Party to make or maintain LIBOR Loans, such Credit Party’s commitment
to make or maintain LIBOR Loans shall be reinstated and such Credit Party shall
notify the Administrative Agent and the Borrower of such event.  Notwithstanding the foregoing, to the extent
that the conditions giving rise to the notice requirement set forth in this
Section can be eliminated by the transfer of such Credit Party’s Loans or
Commitment to another of its branches, and to the extent that such transfer is
not inconsistent with such Credit Party’s internal policies of general
application and only if, as determined by such Credit Party in its sole
discretion, the transfer of such Loan or Commitment, as the case may be, would
not otherwise adversely affect such Loans or such Credit Party, the Borrower
may request, and such Credit Party shall use reasonable efforts to effect, such
transfer.


2.13                           Increased Costs.


In
the event that any law, regulation, treaty or directive hereafter enacted,
promulgated, approved or issued or any change in any presently existing law,
regulation, treaty or directive therein or in the interpretation or application
thereof by any Governmental Authority charged with the administration thereof
or compliance by any Credit Party (or any corporation directly or indirectly
owning or controlling such Credit Party) with any request or directive, whether
or not having the force of law, from any central bank or other Governmental
Authority, agency or instrumentality:


(a)                                  does
or shall subject any Credit Party to any Taxes of any kind whatsoever with
respect to any LIBOR Loans or any Letter of Credit or participation or
subparticipation therein or its obligations under this Agreement to make LIBOR
Loans, issue Letters of Credit or participate or subparticipate therein, or
change the basis of taxation of payments to any Credit Party of principal,
interest or any other amount payable hereunder in respect of its LIBOR Loans or
Letters of Credit or participations or subparticipations therein, including any
Taxes required to be withheld from any amounts payable under the Loan Documents
(except for (i) imposition of, or change in the rate of, tax on the
overall net income of such Credit Party or its Applicable Lending Office for
any of such Advances by any jurisdiction, including, in the case of Credit
Parties incorporated in any State of the United States, such tax imposed by the
United States and (ii) any franchise, unincorporated business or gains taxes);
or


(b)                                 does
or shall impose, modify or make applicable any reserve, special deposit,
compulsory loan, assessment, increased cost or similar requirement against
assets held by, or deposits of, or advances or loans by, or other credit
extended by, or any other acquisition of funds by, any office of such Credit
Party in respect of its LIBOR Loans or Letters of Credit or participations or
subparticipations therein, which, in the case of LIBOR Loans, is not otherwise
included in the determination of the LIBOR;


and the result of
any of the foregoing is to increase the cost to such Credit Party of making,
issuing, renewing, converting or maintaining its LIBOR Loans, issuing Letters
of Credit or participating or subparticipating therein, or its commitment to
make such LIBOR Loans, issue Letters of Credit or participate or subparticipate
therein, or to reduce any amount receivable hereunder in respect of its LIBOR
Loans, Letters of Credit or participation or subparticipation therein, then, in
any such case, the Borrower shall pay such Credit Party, upon its demand, any
additional amounts necessary to compensate such Credit Party for such
additional cost or reduction in such amount receivable which such Credit Party
deems to be material as reasonably determined by such Credit Party; provided,
however, that nothing in this Section shall require the Borrower to indemnify
the Credit Parties with respect to withholding Taxes for which the Borrower has
no obligation under Section 2.11.  No
failure by any Credit Party to demand compensation for any increased cost
during any Interest Period shall constitute a waiver of such Credit Party’s
right to demand such compensation at any time. 
A statement setting forth the calculations of any additional amounts
payable pursuant to the foregoing sentence submitted by a Credit Party to the
Borrower shall be conclusive absent manifest error.  The obligations of the Borrower under this
Section shall survive the termination of this Agreement and any of the
Commitments or the payment of the Notes and all other amounts payable under the
Loan Documents for a period of one hundred eighty (180) days and shall
thereafter terminate forever.  Failure to
demand compensation pursuant to this Section shall not constitute a waiver of
such Credit Party’s right to demand such compensation.  To the extent that any increased costs of the
type referred to in this Section are being incurred by a 



 36
 









Credit Party and
such costs can be eliminated or reduced by the transfer of such Credit Party’s
Loans or Commitment to another of its branches, and to the extent that such
transfer is not inconsistent with such Credit Party’s internal policies of
general application and only if, as determined by such Credit Party in its sole
discretion, the transfer of such Loan or Commitment, as the case may be, would
not otherwise materially adversely affect such Loan or such Credit Party, the
Borrower may request, and such Lender shall use reasonable efforts to effect,
such transfer.


2.14                           Indemnification for Break
Funding Losses.


Notwithstanding
anything contained herein to the contrary, if (a) the Borrower shall fail to
borrow on the Borrowing Date, if it shall have requested a LIBOR Loan, or shall
fail to convert on a Conversion Date, after it shall have given notice to do so
in which it shall have requested a LIBOR Loan pursuant to Section 2.3 or 2.8,
(b) the Borrower shall fail to borrow after having accepted one or more offers
of Competitive Advances under Section 2.4, or (c) a LIBOR Loan or Competitive
Advance shall be terminated or prepaid for any reason prior to the last day of
the Interest Period applicable thereto (including, without limitation, any
mandatory prepayment or a prepayment resulting from acceleration or
illegality), the Borrower agrees to indemnify each Credit Party against, and to
pay on demand directly to such Credit Party, any loss or expense suffered by
such Credit Party as a result of such failure to borrow or convert, or such
termination or repayment, including, without limitation, an amount, if greater
than zero, equal to:


A x (B-C) x D/360


where:


“A” equals such Credit Party’s pro rata share of the
Affected Principal Amount;


“B” equals the applicable LIBOR or the rate which such
Competitive Advance bears to such Loan, as the case may be;


“C” equals the applicable LIBOR or Proposed Bid Rate
(in each case, expressed as a decimal), as the case may be, in effect on or
about the first day of the applicable Remaining Interest Period, based on the
applicable rates offered or bid, as the case may be, on or about such date, for
deposits (or in the case of a Proposed Bid Rate, based on the rate such Credit
Party would have quoted) in an amount equal approximately to such Credit Party’s
pro rata share of the Affected Principal Amount with an Interest Period equal
approximately to the applicable Remaining Interest Period, as determined by
such Credit Party;


“D” equals the number of days from and including the
first day of the applicable Remaining Interest Period to but excluding the last
day of such Remaining Interest Period;


and any other out
of pocket loss or expense (including any internal processing charge customarily
charged by such Credit Party) suffered by such Credit Party in connection with
such LIBOR Loan or Competitive Advance including, without limitation, in
liquidating or employing deposits acquired to fund or maintain the funding of
its pro rata share of the Affected Principal Amount, or redeploying funds
prepaid or repaid, in amounts which correspond to its pro rata share of the
Affected Principal Amount.  A statement
setting forth the calculations of any amounts payable pursuant to this Section
submitted by a Credit Party to the Borrower shall be conclusive and binding on
the Borrower absent manifest error.  The
obligations of the Borrower under this Section shall survive the termination of
this Agreement and the Commitments and the payment of the Notes and all other
amounts payable under the Loan Documents.


2.15                           Use of Proceeds.


The
proceeds of Loans and the issuances of Letters of Credit shall be used solely
(a) to repay other Indebtedness; and (b) for general business purposes,
including, without limitation, working capital.


2.16                           Capital Adequacy.


If
(a) after the date hereof, the enactment or promulgation of, or any change or
phasing in of, any United States or foreign law or regulation or in the
interpretation thereof by any Governmental Authority charged with the 



 37
 









administration
thereof, (b) compliance with any directive or guideline from any central bank
or United States or foreign Governmental Authority (whether or not having the
force of law) promulgated or made after the date hereof, or (c) compliance with
the Risk-Based Capital Guidelines of the Board of Governors of the
Federal Reserve System as set forth in 12 CFR Parts 208 and 225, or of the
Comptroller of the Currency, Department of the Treasury, as set forth in 12 CFR
Part 3, or similar legislation, rules, guidelines, directives or regulations
under any applicable United States or foreign Governmental Authority affects or
would affect the amount of capital required to be maintained by a Credit Party
(or any lending office of such Credit Party) or any corporation directly or
indirectly owning or controlling such Credit Party or imposes any restriction
on or otherwise adversely affects such Credit Party (or any lending office of
such Credit Party) or any corporation directly or indirectly owning or
controlling such Credit Party and such Credit Party shall have reasonably
determined that such enactment, promulgation, change or compliance has the
effect of reducing the rate of return on such Credit Party’s capital or the
asset value to such Credit Party of any Loan made by such Credit Party, or
Letter of Credit issued by such Credit Party (or participation or
subparticipation therein) as a consequence, directly or indirectly, of its
obligations to make and maintain the funding of its Loans or issue Letters of
Credit or participate or subparticipate therein at a level below that which
such Credit Party could have achieved but for such enactment, promulgation,
change or compliance (after taking into account such Credit Party’s policies
regarding capital adequacy) by an amount deemed by such Credit Party to be
material, then, upon demand by such Credit Party, the Borrower shall promptly
pay to such Credit Party such additional amount or amounts as shall be
sufficient to compensate such Credit Party for such reduction in such rate of
return or asset value.  A certificate in
reasonable detail as to such amounts submitted to the Borrower and the
Administrative Agent setting forth the determination of such amount or amounts
that will compensate such Credit Party for such reductions shall be presumed correct
absent manifest error.  No failure by any
Credit Party to demand compensation for such amounts hereunder shall constitute
a waiver of such Credit Party’s right to demand such compensation at any
time.  Such Credit Party shall, however,
use reasonable efforts to notify the Borrower of such claim within 90 days
after the officer of such Credit Party having primary responsibility for this
Agreement has obtained knowledge of the events giving rise to such claim.  The obligations of the Borrower under this
Section shall survive the termination of this Agreement and the Commitments and
the payment of the Notes and all other amounts payable under the Loan
Documents.


2.17                           Administrative Agent’s
Records.


The
Administrative Agent’s records with respect to the Loans, the interest rates
applicable thereto, each payment by the Borrower of principal and interest on
the Loans, and fees, expenses and any other amounts due and payable in
connection with this Agreement shall be presumptively correct absent manifest error
as to the amount of the Loans, and the amount of principal and interest paid by
the Borrower in respect of such Loans and as to the other information relating
to the Loans, and amounts paid and payable by the Borrower hereunder and under
the Notes.  The Administrative Agent will
when requested by the Borrower advise the Borrower of the principal and
interest outstanding under the Loans as of the date of such request and the
dates on which such payments are due.


2.18                           [Intentionally Omitted].


2.19                           Representative
of Borrower.


Borrower
hereby appoints each of the Authorized Signatories as its agent, attorney-in-fact
and representative for the purpose of making Borrowing Requests, Competitive
Bid Requests, acceptance of Competitive Bids, Letter of Credit Requests,
payment and prepayment of Loans and Competitive Advances, the giving and
receipt of notices by and to Borrower under this Agreement and all other
purposes incidental to any of the foregoing. 
Borrower agrees that any action taken by any such Authorized Signatory
as the agent, attorney-in-fact and representative of Borrower shall be
binding on Borrower to the same extent as if directly taken by Borrower.


3.                                       FEES;
PAYMENTS.


3.1                                 Fees.


(a)                                  The
Borrower agrees to pay to the Administrative Agent, for the account of the
Lenders in accordance with each Lender’s Commitment Percentage, a fee (the “Facility
Fee”), from the Effective Date through the Maturity Date, computed as follows:
while any Loans are outstanding, an amount, determined periodically as 



 38
 









hereinafter set
forth, equal to the product of (i) the Applicable Facility Fee Percentage times
(ii) the average daily Total Commitment Amount during the quarter for which the
Facility Fee is being paid times (iii) a fraction equal to the number of days
elapsed during such quarter (or portion thereof during which this Agreement was
in effect) divided by 360.  The Facility
Fee shall be payable quarterly in arrears on the last Business Day of each
March, June, September and December of each year, commencing on the first such
day following the Effective Date, on any termination of the Total Commitment
Amount, and on the Maturity Date.  The
Facility Fee (and the Applicable Facility Fee Percentage) shall be calculated
on the basis of a 360 day year for the actual number of days elapsed without
regard to the amount of Loans outstanding during any period for which the
Facility Fee is computed.


(b)                                 The
Borrower agrees to pay to Bank of America and BAS on the Effective Date, an all
arrangement, commitment and loan structuring fees (collectively, the “Bank of
America Fee”), as provided in the Agreement Regarding Fees.  Bank of America shall pay to the other
Lenders a commitment and loan structuring fee in accordance with their
respective separate agreements.


(c)                                  The
Borrower agrees to pay any other fees payable to any Credit Party under any
separate agreement at the times so agreed upon in such separate agreements.


(d)                                 The
Bank of America Fee shall be paid on the date due, in immediately available
funds, to Bank of America or BAS, as applicable.  All fees and other amounts payable under
paragraph (a) of this Section shall be paid on the dates due, in immediately
available funds, to the Administrative Agent for distribution, in the case of the
Facility Fee and participation fees described therein, and other fees and
amounts payable under this Section shall be payable directly to the Credit
Party to whom such fees and other amounts are payable.  The Bank of America Fee, the Facility Fee and
all other fees and amounts paid shall not be refundable under any
circumstances.


3.2                                 Payments;
Application of Payments.


Each
payment, including each prepayment, of principal and interest on the Loans and
the Facility Fee, the Bank of America Fee, the Administrative Agent’s fees,
Letter of Credit fees and any other amounts due hereunder shall be made by the
Borrower to the Administrative Agent or Bank of America, as applicable, without
set-off, deduction or counterclaim, at its office set forth in Section
11.2 in funds immediately available to the Administrative Agent at such office
by 12:00 noon on the due date for such payment. 
Promptly upon receipt thereof by the Administrative Agent, the
Administrative Agent shall remit, in like funds as received, (a) to the Lenders
who maintain any of their Loans as Prime Rate Loans or LIBOR Loans, each such
Lender’s pro rata share of such payments which are in respect of principal or
interest due on such Prime Rate Loans or LIBOR Loans, (b) to the Lenders who
maintain any of their Revolving Credit Loans as Competitive Advances, each such
Lender’s pro rata share of such payments which are in respect of principal or
interest due on such Competitive Advances in accordance with Section 2.4, (c)
in the case of the Facility Fee, to all Lenders pro rata in accordance with
each Lenders Commitment Percentage thereof, (d) in the case of Swing Loan fees,
to the Swing Loan Lender, and (e) in the case of Letter of Credit fees, to the
Issuing Lender and the Lenders as provided in Section 2.5; provided that any
such payment shall, to the extent distributed after the Business Day following
the Administrative Agent’s receipt thereof, be accompanied by interest on such
payment amount (payable by the Administrative Agent) calculated at the Federal
Funds Rate commencing as of the date which is two (2) days following the
Business Day following the Administrative Agent’s receipt of such payment
through the date on which the Administrative Agent makes such payment to the
applicable Lender(s).  The failure of the
Borrower to make any such payment by such time shall not constitute a default
hereunder, provided that such payment is made on such due date, but any such
payment made after 12:00 noon on such due date shall be deemed to have been
made on the next Business Day for the purpose of calculating interest on
amounts outstanding on the Loans.  If any
payment hereunder or under the Notes shall be due and payable on a day which is
not a Business Day, the due date thereof (except as otherwise provided in the
definition of Interest Period) shall be extended to the next Business Day and
interest shall be payable at the applicable rate specified herein during such
extension.  If any payment is made with
respect to any LIBOR Loans or Competitive Advances prior to the last day of the
applicable Interest Period, the Borrower shall indemnify each Lender in
accordance with Section 2.14.



 39
 









4.                                       REPRESENTATIONS
AND WARRANTIES.


In
order to induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans the Borrower makes the following
representations and warranties to the Administrative Agent and each Lender:


4.1                                 Existence and Power.


(a)                                  The
Borrower (i) is a Maryland limited liability company duly organized and
validly existing and in good standing under the laws of Maryland, (ii) has
all requisite power and authority to own its Property and to carry on its
business as now conducted, and (iii) is in good standing and authorized to
do business in each jurisdiction in which the nature of the business conducted
therein or the Property owned therein make such qualification necessary, except
where such failure to qualify could not reasonably be expected to have a
Material Adverse Effect.


(b)                                 Each
Subsidiary of the Borrower (including each Subsidiary Guarantor) (i) is a
corporation, partnership, limited liability company, real estate investment
trust or business trust, is validly existing and in good standing under the
laws of the jurisdiction of its organization and has all requisite power and
authority to own its Property and to carry on its business as now conducted,
and (ii) is in good standing and authorized to do business in each other
jurisdiction in which the nature of the business conducted therein or the
Property owned therein make such qualification necessary, except where such
failure to qualify could not reasonably be expected to have a Material Adverse
Effect.


4.2                                 Authority.


The
Borrower has full legal power and authority to enter into, execute, deliver and
perform the terms of the Loan Documents to which it is a party and to make the
borrowings contemplated thereby, to execute, deliver and carry out the terms of
the Notes and to incur the obligations provided for herein and therein, all of
which have been duly authorized by all proper and necessary corporate action.


4.3                                 Binding Agreement.


(a)                                  The
Loan Documents to which the Borrower is a party constitute the valid and
legally binding obligations of the Borrower, enforceable in accordance with
their respective terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors’ rights generally.


(b)                                 The
execution, delivery and performance by the Borrower of the Loan Documents to
which it is a party do not violate the provisions of any applicable statute,
law (including, without limitation, any applicable usury or similar law), rule
or regulation of any Governmental Authority.


4.4                                 Subsidiaries;
DownREIT Partnerships.


As
of the Effective Date, the Borrower has only the Subsidiaries set forth on Schedule 4.4.  Schedule 4.4 sets forth the name of,
and the ownership interest of the Borrower in, each Subsidiary of the Borrower
and identifies each Subsidiary that is a Subsidiary Guarantor, in each case as
of the Effective Date. The shares of each corporate Subsidiary of the Borrower
that are owned by the Borrower are duly authorized, validly issued, fully paid
and nonassessable and are owned free and clear of any Liens.  The interest of the Borrower in each non-corporate
Subsidiary is owned free and clear of any Liens (other than Liens applicable to
a partner under the terms of any partnership agreement, or those applicable to
a member under the terms of any limited liability company operating agreement,  to secure the Borrower’s obligation to make
capital contributions or similar payments thereunder).  As of the Effective Date, the only DownREIT
Partnership is Excel Realty Partners, L.P. and the only Subsidiaries of Excel
Realty Partners, L.P. are as set forth on Schedule 4.4.  As of the Effective Date, there is no
Subsidiary of the Borrower (other than ERT Development Corporation) that is a
guarantor of any unsecured Indebtedness of Borrower (other than the Loans) that
is not also a Subsidiary Guarantor.



 40
 









4.5                                 Litigation.


(a)                                  Except
as disclosed on Schedule 4.5, there are no actions, suits or proceedings
at law or in equity or by or before any Governmental Authority (whether or not
purportedly on behalf of the Borrower or any Subsidiary of the Borrower)
pending or, to the knowledge of the Borrower, threatened against the Borrower
or any Subsidiary of the Borrower or any of their respective Properties or
rights, which (i) could reasonably be expected to have a Material Adverse
Effect, (ii) call into question the validity or enforceability of any of the
Loan Documents, or (iii) could reasonably be expected to result in the
rescission, termination or cancellation of any franchise, right, license,
permit or similar authorization held by the Borrower or any Subsidiary of the
Borrower, which rescission, termination or cancellation could reasonably be
expected to have a Material Adverse Effect.


(b)                                 As
of the date hereof, Schedule 4.5 sets forth all actions, suits and
proceedings at law or in equity or by or before any Governmental Authority
(whether or not purportedly on behalf of the Borrower or any Subsidiary of the
Borrower) pending or, to the knowledge of the Borrower, threatened against the
Borrower, any Subsidiary of the Borrower or any of their respective Properties
or rights which, if adversely determined, could reasonably be expected to have
a Material Adverse Effect.


4.6                                 Required Consents.


No
consent, authorization or approval of, filing with, notice to, or exemption by,
stockholders, any Governmental Authority or any other Person not obtained is
required to be obtained by the Borrower to authorize, or (except for filings
required to be made with the SEC) is required in connection with the execution,
delivery and performance of the Loan Documents or is required to be obtained by
the Borrower as a condition to the validity or enforceability of the Loan
Documents.


4.7                                 No Conflicting
Agreements.


Neither
the Borrower nor any Subsidiary of the Borrower is in default beyond any
applicable grace or cure period under any mortgage, indenture, contract or
agreement to which it is a party or by which it or any of its Property is
bound, the effect of which default could reasonably be expected to have a
Material Adverse Effect.  The execution,
delivery or carrying out of the terms of the Loan Documents will not constitute
a default under, or result in the creation or imposition of, or obligation to
create, any Lien upon any Property of the Borrower or any Subsidiary of the
Borrower pursuant to the terms of any such mortgage, indenture, contract or
agreement.


4.8                                 Compliance with
Applicable Laws.


Neither
the Borrower nor any Subsidiary of the Borrower is in default with respect to
any judgment, order, writ, injunction, decree or decision of any Governmental
Authority which default could reasonably be expected to have a Material Adverse
Effect. The Borrower and each Subsidiary of the Borrower is in compliance in
all material respects with all statutes, regulations, rules and orders
applicable to Borrower or such Subsidiary of all Governmental Authorities, including,
without limitation, Environmental Laws and ERISA, a violation of which could
reasonably be expected to have a Material Adverse Effect.


4.9                                 Taxes.


Each
of the Borrower and its Subsidiaries has filed or caused to be filed all
material tax returns required to be filed and has paid, or has filed
appropriate extensions and has made adequate provision for the payment of, all
taxes shown to be due and payable on said returns or in any assessments made
against it (other than those being contested as permitted under Section 7.4) in
which the failure to pay could reasonably be expected to have a Material
Adverse Effect, and no tax Liens have been filed with respect thereto.  The charges, accruals and reserves on the
books of the Borrower and each Subsidiary of the Borrower with respect to all
federal, state, local and other taxes are, to the best knowledge of the
Borrower, adequate for the payment of all such taxes, and the Borrower knows of
no unpaid assessment which is due and payable against it or any of its Subsidiaries
or any claims being asserted which could reasonably be expected to have a
Material Adverse Effect.



 41















 


4.10                           Governmental Regulations.


Neither
the Borrower nor any Subsidiary of the Borrower is subject to regulation under
the Federal Power Act, as amended, or the Investment Company Act of 1940, as
amended, and neither the Borrower nor any Subsidiary of the Borrower is subject
to any statute or regulation which prohibits or restricts the incurrence of
Indebtedness under the Loan Documents, including, without limitation, statutes
or regulations relative to common or contract carriers or to the sale of electricity,
gas, steam, water, telephone, telegraph or other public utility services.


4.11                           Federal Reserve Regulations; Use of Loan
Proceeds.


Neither
the Borrower nor any Subsidiary of the Borrower is engaged principally, or as
one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying any Margin Stock.  No part of the proceeds of the Loans will be
used, directly or indirectly, for a purpose which violates any law, rule or regulation
of any Governmental Authority, including, without limitation, the provisions of
Regulations T, U or X of the Board of Governors of the Federal Reserve System,
as amended.  No part of the proceeds of
the Loans will be used, directly or indirectly, to purchase or carry Margin
Stock or to extend credit to others for the purpose of purchasing or carrying
Margin Stock.


4.12                           Plans; Multiemployer Plans.


As
of the Effective Date, each of the Borrower and its ERISA Affiliates maintains
or makes contributions only to the Plans and Multiemployer Plans listed on Schedule
4.12.  Each Plan, and, to the best
knowledge of the Borrower, each Multiemployer Plan, is in compliance in all
material respects with, and has been administered in all material respects in
compliance with, the applicable provisions of ERISA, the Code and any other
applicable Federal or state law, and no event or condition is occurring or
exists concerning which the Borrower would be under an obligation to furnish a
report to the Administrative Agent and each Lender as required by Section
7.2(d).  As of May 31, 2006, each Plan
was “fully funded”, which for purposes of this Section means that the fair
market value of the assets of such Plan is not less than the present value of
the accrued benefits of all participants in the Plan, computed on a plan
termination basis.  To the best knowledge
of the Borrower, no Plan has ceased being fully funded.


4.13                           Financial Statements.


The
Borrower has heretofore delivered to the Administrative Agent and the Lenders
(a) copies of the audited Consolidated Balance Sheet of NXL and its
Consolidated Subsidiaries as of December 31, 2003, December 31, 2004, December
31, 2005 and December 31, 2006 (collectively, with the related notes and
schedules, the “Financial Statements”). 
The Financial Statements fairly present in all material respects the
Consolidated financial condition and results of the operations of NXL and its
Consolidated Subsidiaries as of the dates and for the periods indicated therein
and have been prepared in conformity with GAAP (subject, in the case of
quarterly financial statements, to the absence of footnotes and to normal
year-end adjustments).  Except as
reflected in the Financial Statements or in the notes thereto, neither NXL nor
any Subsidiary of the Borrower has, as of the Effective Date, any obligation or
liability of any kind (whether fixed, accrued, contingent, unmatured or
otherwise) involving material amounts which, in accordance with GAAP, should
have been shown on the Financial Statements and was not.  Since March 31, 2006 there has been no
material adverse change in the condition (financial or otherwise), operations,
prospects or business of NXL and the Subsidiaries of the Borrower taken as a
whole other than, for all dates following the Liquidation, the structural
changes to NXL that occurred directly as a result of the Liquidation (as
applicable).


4.14                           Property.


Each
of the Borrower and its Subsidiaries has good and marketable title to all of
its Property, title to which is material to the Borrower or such Subsidiary,
subject to no Liens, except Permitted Liens. 
There are no unpaid or outstanding real estate or similar taxes or
assessments on or against any Real Property other than (a) real estate or other
taxes or assessments that are not yet due and payable, and (b) such taxes as
the Borrower or any Subsidiary of the Borrower is contesting in good faith or
which individually or in the aggregate could not reasonably be expected to have
a Materially Adverse Effect.  There are
no pending eminent domain proceedings against any Real Property, and, to the
knowledge of the Borrower, no such proceedings are presently threatened or
contemplated by any Governmental Authority against any Real Property, which
pending, threatened or contemplated proceedings 



 42
 









individually or in
the aggregate, could reasonably be expected to have a Material Adverse
Effect.  None of the Real Property is now
damaged as a result of any fire, explosion, accident, flood or other casualty
which individually or in the aggregate could reasonably be expected to have a
Material Adverse Effect.


4.15                           Franchises, Intellectual Property, Etc.


Each
of the Borrower and its Subsidiaries possesses or has the right to use all
franchises, Intellectual Property, licenses and other rights, in each case that
are material and necessary for the conduct of its business, with no known
conflict with the valid rights of others which could reasonably be expected to
have a Material Adverse Effect.  No event
has occurred which permits or, to the best knowledge of the Borrower, after
notice or the lapse of time or both, or any other condition, could reasonably
be expected to permit, the revocation or termination of any such franchise,
Intellectual Property, license or other right and which revocation or
termination could reasonably be expected to have a Material Adverse Effect.


4.16                           Environmental Matters.


(a)                                  The
Borrower and each of its Subsidiaries is in compliance with the requirements of
all applicable Environmental Laws except for such non-compliance which
could not, either individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.


(b)                                 No
Hazardous Substances have been (i) generated or manufactured on, transported to
or from, treated at, stored at or discharged from any Real Property in
violation of any Environmental Laws; (ii) discharged into subsurface waters
under any Real Property in violation of any Environmental Laws; or (iii)
discharged from any Real Property on or into property or waters (including
subsurface waters) adjacent to any Real Property in violation of any
Environmental Laws, which violation, in the case of any of (i), (ii) or (iii)
could, either individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect.


(c)                                  Neither
the Borrower nor any of its Subsidiaries (i) has received notice (written or
oral) or otherwise learned of any claim, demand, suit, action, proceeding,
event, condition, report, directive, lien, violation, non-compliance or
investigation indicating or concerning any potential or actual liability (including,
without limitation, potential liability for enforcement, investigatory costs,
cleanup costs, government response costs, removal costs, remedial costs,
natural resources damages, property damages, personal injuries or penalties)
arising in connection with (x) any non-compliance with or violation of
the requirements of any applicable Environmental Laws, or (y) the presence of
any Hazardous Substance on any Real Property (or any Real Property previously
owned by the Borrower or any Subsidiary of the Borrower) or the release or
threatened release of any Hazardous Substance into the environment which, in
either case, could, either individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, (ii) has any threatened or actual
liability in connection with the presence of any Hazardous Substance on any
Real Property (or any Real Property previously owned by the Borrower or any
Subsidiary of the Borrower) or the release or threatened release of any
Hazardous Substance into the environment which, in either case, could, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, (iii) has received notice of any federal or state investigation
evaluating whether any remedial action is needed to respond to the presence of
any Hazardous Substance on any Real Property (or any Real Property previously
owned by the Borrower or any Subsidiary of the Borrower) or a release or
threatened release of any Hazardous Substance into the environment for which the
Borrower or any Subsidiary of the Borrower is or may be liable the results of
which could, in either case, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, or (iv) has received
notice that the Borrower or any Subsidiary of the Borrower is or may be liable
to any Person under any Environmental Law which liability could, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.


(d)                                 To
the best of the Borrower’s knowledge, no Real Property is located in an area
identified by the Secretary of Housing and Urban Development as an area having
special flood hazards, or if any such Real Property is located in such a
special flood hazard area, then the Borrower has obtained all insurance that is
required to be maintained by law or which is customarily maintained by Persons
engaged in similar businesses and owning similar Properties in the same general
areas in which the Borrower operates.



 43
 









4.17                           Labor Relations.


Neither
the Borrower nor any of its Subsidiaries is a party to any collective
bargaining agreement, other than the collective bargaining agreement covering
fewer than 25 employees at the Roosevelt Mall Shopping Center in Philadelphia,
Pennsylvania, and, to the best knowledge of the Borrower, no petition has been
filed or proceedings instituted by any employee or group of employees with any
labor relations board seeking recognition of a bargaining representative with
respect to the Borrower or such Subsidiary. 
There are no material controversies pending between the Borrower or any
Subsidiary and any of their respective employees, which could reasonably be
expected to have a Material Adverse Effect.


4.18                           [Intentionally Omitted].


4.19                           Solvency.


On
the Effective Date and immediately following the making of each Loan (assuming
for the purposes of this paragraph that the Letter of Credit Exposure is
included as a part of the Loans), and after giving effect to the application of
the proceeds of such Loan:  (a) the fair
value of the assets of the Borrower and its Subsidiaries, taken as a whole, at
a fair valuation, will exceed the debts and liabilities, including Contingent
Obligations, of the Borrower and its Subsidiaries, taken as a whole; (b) the
present fair saleable value of the Property of the Borrower and its
Subsidiaries, taken as a whole, will be greater than the amount that will be
required to pay the probable liability of the debts and other liabilities,
subordinated, contingent or otherwise of the Borrower and its Subsidiaries, as
such debts and other liabilities become absolute and mature; (c) the Borrower
and its Subsidiaries, taken as a whole, will be able to pay its debts and
liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and mature; and (d) the Borrower and its
Subsidiaries, taken as a whole, will not have unreasonably small capital with
which to conduct the business in which they are engaged as such business is now
conducted and is proposed to be conducted hereafter.


4.20                           [Intentionally Omitted].


4.21                           List of Unencumbered Assets.


A
list of all the Unencumbered Assets as of the date of this Agreement is
attached hereto as Schedule 4.21.


4.22                           [Intentionally Omitted].


4.23                           No Misrepresentation.


No
representation or warranty contained herein and no certificate or report
furnished or to be furnished by the Borrower or any Subsidiary of the Borrower
in connection with the transactions contemplated hereby, when taken together
with all other information furnished by the Borrower or any Subsidiary of the
Borrower in connection herewith, contains or will contain a misstatement of
material fact, or, to the best knowledge of the Borrower, omits or will omit to
state a material fact required to be stated in order to make the statements
herein or therein contained not materially misleading in the light of the
circumstances under which made; provided, that with respect to projected
financial information, the Borrower represents only that such information was
prepared in good faith based on assumptions believed to be reasonable at the
time made.


4.24                           Taxpayer ID.


The
Borrower’s true and correct U.S. taxpayer identification number is set forth on
Schedule 11.2


5.                                       CONDITIONS
TO EFFECTIVENESS OF THIS AGREEMENT.


In
addition to the conditions precedent set forth in Section 6, the obligation of
each Lender to make its initial Loan, or the Swing Loan Lender to make the
initial Swing Loan or the Issuing Lender to issue the initial Letter of Credit
shall be subject to the fulfillment of the following conditions precedent:



 44
 









5.1                                 Evidence of Action.


(a)                                  The
Administrative Agent shall have received a certificate, dated the Effective
Date, of the Secretary or Assistant Secretary of the Borrower substantially in
the form of Exhibit O (i) attaching a true and complete copy of the
resolutions of its Board of Directors authorizing the execution and delivery of
the Loan Documents by the Borrower and the performance of the Borrower’s
obligations thereunder, and of all other documents evidencing other necessary action
(in form and substance reasonably satisfactory to the Administrative Agent)
taken by it to authorize the Loan Documents and the transactions contemplated
thereby, (ii) attaching a true and complete copy of its articles of
incorporation and by-laws, (iii) setting forth the incumbency of its
officer or officers who may sign the Loan Documents, including therein a
signature specimen of such officer or officers, and (iv) certifying that said
corporate charter and by-laws are true and complete copies thereof, are
in full force and effect and have not been amended or modified.


(b)                                 The
Administrative Agent shall have received a certificate, dated the Effective
Date, of the Secretary or Assistant Secretary of each Subsidiary Guarantor (or
such Subsidiary Guarantor’s managing partner, general partner or managing
member, as applicable) substantially in the form of Exhibit P (i)
attaching a true and complete copy of the resolutions of its Board of
Directors, Trustees or Managers, as the case may be, authorizing its execution
and delivery of the Guaranty and the performance of its obligations thereunder,
and of all other documents evidencing other necessary action (in form and
substance reasonably satisfactory to the Administrative Agent) taken by it to
authorize the Guaranty and the transactions contemplated thereby, (ii)
attaching a true and complete copy of its articles of incorporation or
corporate charter, declaration of trust or certificate of formation and, if
applicable, by-laws, operating agreement or agreement of limited
liability company, and if such certificate is from such Subsidiary Guarantor’s
managing partner, general partner or managing member, attaching a true and
complete copy of the applicable Subsidiary Guarantor’s partnership agreement or
operating agreement and other organizational documents, (iii) setting forth the
incumbency of its officer or officers who may sign the Guaranty, including
therein a signature specimen of such officer or officers, and (iv) certifying
that said organizational documents are true and complete copies thereof, are in
full force and effect and have not been amended or modified.


(c)                                  The
Administrative Agent shall have received certificates of good standing for the
Borrower from the Maryland State Department of Assessments and Taxation and for
each Subsidiary Guarantor from the Secretary of State for the State in which
such Subsidiary Guarantor is incorporated, and for the Borrower from each
jurisdiction other than Maryland in which the Borrower is qualified to do
business.


5.2                                 This Agreement.


The
Administrative Agent shall have received counterparts of this Agreement signed
by each of the parties hereto (or receipt by the Administrative Agent from a
party hereto of a facsimile signature page signed by such party which shall
have agreed to promptly provide the Administrative Agent with originally
executed counterparts hereof).


5.3                                 Notes.


To
the extent the same have been requested, the Administrative Agent shall have
received, for the benefit of each Lender and the Swing Loan Lender, as the case
may be, a Revolving Credit Note and Competitive Advance Note in favor of each
Lender, and the Swing Loan Note in favor of Swing Loan Lender, each of the
Notes, duly executed by an Authorized Signatory of the Borrower.


5.4                                 Guaranty.


The
Administrative Agent shall have received counterparts of the Guaranty signed by
each of the Subsidiary Guarantors (or receipt by the Administrative Agent from
a party hereto of a facsimile signature page signed by such party which shall
have agreed to promptly provide the Administrative Agent with originally
executed counterparts thereof).



 45
 









5.5                                 Litigation.


Except
as disclosed on Schedule 4.5, there shall be no injunction, writ,
preliminary restraining order or other order of any nature issued by any Governmental
Authority in any respect affecting the transactions provided for herein and no
action or proceeding by or before any Governmental Authority shall have been
commenced and be pending or, to the knowledge of the Borrower, threatened,
seeking to prevent or delay the transactions contemplated by the Loan Documents
or challenging any other terms and provisions hereof or thereof or seeking any
damages in connection therewith and the Administrative Agent.


5.6                                 Opinion of Counsel to the Borrower.


The
Administrative Agent shall have received an opinion or opinions of outside
counsel to the Borrower and counsel to each Subsidiary Guarantor, and their
respective general partners, managing partners or managing members, as
applicable, each addressed to the Administrative Agent and the Lenders, and
each dated the Effective Date, and each in form and substance satisfactory to
Administrative Agent, covering such matters as Administrative Agent may
reasonably request.


5.7                                 Fees.


The
Bank of America Fee and all other fees payable to the Administrative Agent,
BAS, the Lenders, the Swing Loan Lender and the Issuing Lender shall have been
paid.


5.8                                 Fees and Expenses of Special Counsel.


The
fees and expenses of Special Counsel in connection with the preparation,
negotiation and closing of the Loan Documents shall have been paid.


5.9                                 Evidence of Consummation of Merger and
Liquidation of NXL.  At closing, the Administrative Agent shall
have received (a) evidence reasonably satisfactory to the Administrative Agent
that the Merger is fully effective and has been consummated in accordance with
its terms, and (b) delivery by the Borrower of a copy of a fully effective
Assignment and Assumption Agreement between the Borrower and NXL evidencing the
transfer to Borrower of all of the assets of NXL or other evidence reasonably
satisfactory to the Administrative Agent that the Liquidation has occurred and
that the Borrower is the owner of all of the assets owned by NXL immediately
prior to the Liquidation.


6.                                       CONDITIONS
OF LENDING – ALL LOANS.


The
obligation of each Lender to make any Loan or of the Swing Loan Lender to make
a Swing Loan or an Issuing Lender to issue any Letters of Credit is subject to
the satisfaction of the following conditions precedent as of the date of such
Loan or issuance of such Letter of Credit:


6.1                                 Compliance.


On
each Borrowing Date and after giving effect to the Loans to be made or created,
and after the issuance of any Letter of Credit, (a) the Borrower shall be in
compliance with all of the terms, covenants and conditions hereof, (b) there
shall not exist and be continuing any Default or Event of Default, (c) the
representations and warranties contained in the Loan Documents shall be true
and correct with the same effect as though such representations and warranties
had been made on such Borrowing Date (except for representations and warranties
that speak as of a specific date, which need only be true and correct as of
such date), (d) the aggregate outstanding principal balance of the Loans plus
the Letter of Credit Exposure plus the aggregate principal amount of all Swing
Loans shall not exceed the Total Commitment Amount, and (e) the aggregate
outstanding principal balance of the Swing Loans shall not exceed the Swing
Loan Commitment.  Each notice requesting
a Revolving Credit Loan, a Competitive Advance, a Swing Loan or a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof that each of the foregoing matters is true and
correct in all respects.



 46
 









6.2                                 Loan Closings.


All
documents required by the provisions of the Loan Documents to be executed or
delivered to the Administrative Agent on or before the applicable Borrowing
Date or prior to the issuance of a Letter of Credit shall have been executed
and shall have been delivered at the office of the Administrative Agent set
forth in Section 11.2 on or before such Borrowing Date or prior to the issuance
of a Letter of Credit.


6.3                                 Requests.


With
respect to each borrowing of a Loan or issuance of a Letter of Credit, the
Administrative Agent shall have timely received a Borrowing Request, a
Competitive Bid Request or Letter of Credit Request, as the case may be, duly
executed by an Authorized Signatory of the Borrower and otherwise in compliance
with the terms of this Agreement.


6.4                                 Documentation and Proceedings.


All
corporate matters and legal proceedings and all documents and papers in
connection with the transactions contemplated by the Loan Documents shall be
reasonably satisfactory in form and substance to the Administrative Agent and
the Administrative Agent shall have received all information and copies of all
documents which the Administrative Agent or the Required Lenders may reasonably
have requested in connection therewith, such documents (where appropriate) to
be certified by an Authorized Signatory of the Borrower or proper Governmental
Authorities.


6.5                                 Required Acts and Conditions.


All
acts, conditions and things (including, without limitation, the obtaining of
any necessary regulatory approvals and the making of any filings, recordings or
registrations) required to be done or performed by the Borrower and to have
happened on or prior to such Borrowing Date or prior to the issuance of a
Letter of Credit and which are necessary for the continued effectiveness of the
Loan Documents, shall have been done or performed and shall have happened in
due compliance with all applicable laws.


7.                                       AFFIRMATIVE
COVENANTS.


The
Borrower agrees that, so long as any Loan remains outstanding and unpaid or
there exists any Letter of Credit Exposure, or any other amount is owing under
any Loan Document to any Lender or the Administrative Agent, or any Lender has
any obligation to make any Loans, or the Swing Loan Lender has any obligation
to make any Swing Loans or the Issuing Lender has any obligation to issue any
Letters of Credit, the Borrower shall:


7.1                                 Financial Statements.


Maintain
a standard system of accounting in accordance with GAAP, and furnish or cause
to be furnished to the Administrative Agent:


(a)                                  Annual
Statements.  As soon as available,
but in any event within 120 days after the end of each fiscal year of the
Borrower, a copy of its Consolidated Balance Sheet as at the end of such fiscal
year, together with the related Consolidated Statements of Income, Stockholders’
Equity and Cash Flows as of and through the end of such fiscal year, setting
forth in each case in comparative form the figures for the preceding fiscal
year.  The Consolidated Balance Sheets
and Consolidated Statements of Income, Stockholders’ Equity and Cash Flows
shall be audited and accompanied by (i) a report and opinion of the
Accountants, which report and opinion shall be prepared in accordance with
generally accepted auditing standards and applicable Securities Laws and shall
not be subject to any “going concern” or like qualification or exception or any
qualification or exception as to the scope of such audit or with respect to the
absence of any material misstatement (including the opinion of such Accountants
that such Consolidated financial statements present fairly, in all material
respects, the Consolidated financial position of the Borrower and its
Subsidiaries, as of the date of such Consolidated financial statements, and the
Consolidated results of their operations and their cash flows for each of the
years identified therein in conformity with GAAP (subject to any change in the
requirements of GAAP)) and (ii) an attestation report of the Accountants as to
the Borrower’s internal controls pursuant to Section 404 of Sarbanes-Oxley.



 47
 









(b)                                 Annual
Operating Statements and Rent Roll. 
As soon as available, but in any event within 120 days after the end of
each fiscal year of the Borrower, and, if requested by Administrative Agent,
within sixty (60) days after the end of the first three fiscal quarters of each
year of the Borrower, copies of (i) the operating statements (in a form
reasonably satisfactory to the Administrative Agent) for all Real Property of
the Borrower, and (ii) a Rent Roll, each of which shall be certified by the
Chief Financial Officer to be true, correct and complete in all material
respects.  Additionally, upon the request
of the Administrative Agent, the Borrower shall deliver to the Administrative
Agent a Rent Roll


(c)                                  Quarterly
Statements.  As soon as available,
but in any event within 60 days after the end of the first three fiscal quarters
of each year of the Borrower (except in the case of the first fiscal quarter
occurring during calendar year 2007, for which quarter the outside date for
delivery shall be the date which is 120 days following the end such quarter), a
copy of the unaudited Consolidated Balance Sheet of the Borrower as at the end
of each such quarterly period, together with the related unaudited Consolidated
Statements of Income and Cash Flows for the elapsed portion of the fiscal year
through the end of such period, setting forth in each case in comparative form
the figures for the corresponding periods of the preceding fiscal year,
certified by the Chief Financial Officer as being true, correct and complete in
all material respects and as presenting fairly the Consolidated financial
condition and the Consolidated results of operations of the Borrower and its
Subsidiaries.


(d)                                 Quarterly
Information Regarding Unencumbered Assets. 
Concurrently with the delivery of the financial statements referred to
in Sections 7.1(a) and 7.1(c), a list of all the Unencumbered Assets owned by
the Borrower, any wholly owned Subsidiary of the Borrower, each DownREIT
Partnership and any wholly owned Subsidiary of a DownREIT Partnership as of the
last day of such fiscal quarter setting forth the following information with
respect to each such Unencumbered Asset as of such date:  (i) location; (ii) percentage of the
Unencumbered Asset owned by the Borrower, any wholly owned Subsidiary of the
Borrower, each DownREIT Partnership and any wholly owned Subsidiary of a
DownREIT Partnership; and (iii) the Net Operating Income for such Unencumbered
Asset during such fiscal quarter.


(e)                                  Compliance
Certificate.  Concurrently with the
delivery of the financial statements referred to in Sections 7.1(a) and 7.1(c),
a Compliance Certificate, certified by the Chief Financial Officer, or
Treasurer and Vice President, setting forth in reasonable detail the
computations demonstrating the Borrower’s compliance with the provisions of
Sections 8.13, 8.14, 8.15, 8.16, 8.17 and 8.18.


(f)                                    Other
Information.  Such other information
as the Administrative Agent or any Lender may reasonably request from time to
time (it being understood that Public Lenders shall not be entitled to receive
any material non-public information).


Administrative
Agent, the Lenders and Borrower acknowledge and agree that the Consolidated
financial statements of the Borrower that are required to be delivered pursuant
hereto may include FIN 46 Entities, provided, however, that the Borrower
covenants and agrees to provide to the Administrative Agent and the Lenders
simultaneously with the delivery of such financial statements the back-up
information and calculations utilized by the Borrower in performing the
calculations set forth in the Compliance Certificate (in a form reasonably
satisfactory to the Administrative Agent).


7.2                                 Certificates; Other Information.


Furnish
to the Administrative Agent:


(a)                                  Defaults
Under Other Indebtedness.  Prompt
written notice if:  (i) any Indebtedness
of the Borrower or any Subsidiary of the Borrower is declared or shall become
due and payable prior to its stated maturity, or called and not paid when due,
or (ii) a default that extends beyond any applicable notice or grace period
shall have occurred under any note (other than the Notes) or the holder of any
such note, or other evidence of Indebtedness, certificate or security
evidencing any such Indebtedness or any obligee with respect to any other
Indebtedness of the Borrower or any Subsidiary of the Borrower has the right to
declare any such Indebtedness due and payable prior to its stated maturity,
and, in the case of either (i) or (ii), the Indebtedness that is the subject of
(i) or (ii) is, in the aggregate, $15,000,000 or more;



 48
 









(b)                                 Action
of Governmental Authorities.  Prompt
written notice of:  (i) receipt of
any citation, summons, subpoena, order to show cause or other document naming
the Borrower or any Subsidiary of the Borrower a party to any proceeding before
any Governmental Authority which could reasonably be expected to have a
Material Adverse Effect or which calls into question the validity or
enforceability of any of the Loan Documents, and include with such notice a
copy of such citation, summons, subpoena, order to show cause or other
document; (ii) any lapse or other termination of any Intellectual Property,
license, permit, franchise or other authorization issued to the Borrower or any
Subsidiary of the Borrower by any Person or Governmental Authority, which lapse
or termination could reasonably be expected to have a Material Adverse Effect;
and (iii) any refusal by any Person or Governmental Authority to renew or
extend any such material Intellectual Property, license, permit, franchise or
other authorization, which refusal could reasonably be expected to have a
Material Adverse Effect;


(c)                                  SEC
or other Governmental Reports and Filings. 
Promptly upon becoming available, if requested by the Administrative
Agent or any Lender, copies of all regular, periodic or special reports which
the Borrower or any Subsidiary of the Borrower may now or hereafter be required
to file with or deliver to any securities exchange or the Securities and
Exchange Commission, or any other Governmental Authority succeeding to the
functions thereof, pursuant to the Securities Exchange Act of 1934, as amended.


(d)                                 ERISA
Information.  Promptly, and in any
event within ten Business Days, after the Borrower knows or has reason to know
that any of the events or conditions enumerated below with respect to any Plan
or Multiemployer Plan has occurred or exists, a statement signed by the Chief
Financial Officer setting forth details with respect to such event or condition
and the action, if any, which the Borrower or an ERISA Affiliate proposes to
take with respect thereto; provided, however, that if such event or condition
is required to be reported or noticed to the PBGC, such statement, together
with a copy of the relevant report or notice to the PBGC, shall be furnished
promptly and in any event not later than ten days after it is reported or
noticed to the PBGC:


(i)                                     any
reportable event, as defined in Section 4043(b) of ERISA with respect to a
Plan, as to which the PBGC has not by regulation waived the requirement of
Section 4043(a) of ERISA that it be notified within thirty days of the
occurrence of such event (provided that a failure to meet the minimum funding
standard of Section 412 of the Code or of Section 302 of ERISA, including,
without limitation, the failure to make, on or before its due date, a required
installment under Section 412(m) of the Code or Section 302(e) of ERISA or the
disqualification of such Plan for purposes of Section 4043(b)(1) of ERISA,
shall be a reportable event regardless of the issuance of any waivers in accordance
with Section 412(d) of the Code) and any request for a waiver under Section
412(d) of the Code for any Plan;


(ii)                                  the
distribution under Section 4041 of ERISA of a notice of intent to terminate any
Plan or any action taken by the Borrower or any ERISA Affiliate to terminate
any Plan;


(iii)                               the
institution by the PBGC of proceedings under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan, or the
receipt by the Borrower or any ERISA Affiliate of a notice from a Multiemployer
Plan that such action has been taken by the PBGC with respect to such
Multiemployer Plan;


(iv)                              the
complete or partial withdrawal from a Multiemployer Plan by the Borrower or any
ERISA Affiliate that results in liability under Section 4201 or 4204 of ERISA
(including the obligation to satisfy secondary liability as a result of a
purchaser default) or the receipt of the Borrower or any ERISA Affiliate of
notice from a Multiemployer Plan that it is in reorganization or insolvency pursuant
to Section 4241 or 4245 of ERISA or that it intends to terminate or has
terminated under Section 4041A of ERISA;


(v)                                 the
institution of a proceeding by a fiduciary of any Multiemployer Plan against
the Borrower or any ERISA Affiliate to enforce Section 515 of ERISA, which
proceeding is not dismissed within thirty days from its commencement;


(vi)                              the
adoption of an amendment to any Plan pursuant to Section 401(a)(29) of the Code
or Section 307 of ERISA that would result in the loss of the tax-exempt status
of the trust of which such Plan is a part or the Borrower or any ERISA
Affiliate fails to timely provide security to such Plan in accordance with the
provisions of said Sections; and



 49
 









(vii)                           any
event or circumstance exists which may reasonably be expected to constitute
grounds for the incurrence of material liability by the Borrower or any ERISA
Affiliate under Title IV of ERISA or under Sections 412(c)(11) or 412(n) of the
Code with respect to any employee benefit plan;


(e)                                  ERISA
Reports.  Promptly after the request
of the Administrative Agent or any Lender, copies of each annual report filed
pursuant to Section 104 of ERISA with respect to each Plan (including, to the
extent required by Section 104 of ERISA, the related financial and actuarial
statements and opinions and other supporting statements, certifications,
schedules and information referred to in Section 103 of ERISA) and each annual
report filed with respect to each Plan under Section 4065 of ERISA; provided,
however, that in the case of a Multiemployer Plan, such annual reports shall be
furnished only if they are available to the Borrower or any ERISA Affiliate;


(f)                                    Notice
of Sales or Transfers.  Quarterly, on
each date that a Compliance Certificate is to be delivered pursuant to Section
7.1(e), a list of all sales or transfers of any Unencumbered Assets that
occurred during such quarter; provided that, if during any fiscal quarter of
the Borrower any sale or transfer of an Unencumbered Asset, which combined with
all other such sales or transfers of Unencumbered Assets during such fiscal
quarter, would exceed $100,000,000 in the aggregate, then the Borrower shall
promptly provide such list and a certification of the Chief Financial Officer
as to the Borrower’s compliance with Section 8.16;


(g)                                 Casualties
or Condemnations.  Prompt written
notice of any casualty or condemnation of any Real Property, if such casualty
or condemnation, individually or together with any other casualty or
condemnation of any Real Property in the aggregate, could reasonably be
expected to have a Material Adverse Effect;


(h)                                 Environmental
Law Notices.  Prompt written notice
of any order, notice, claim or proceeding received by, or brought against, the
Borrower or any Subsidiary of the Borrower, or with respect to any of the Real
Property, under any Environmental Law, which could reasonably be expected to
have a Material Adverse Effect;


(i)                                     Management
Letters and Reports.  If requested by
the Administrative Agent, promptly thereafter, copies of all material
management letters and similar material reports provided to the Borrower by the
Accountants;


(j)                                     New
Subsidiary Guarantors.  Notice of any
Subsidiary (i) which Borrower is adding as a Subsidiary Guarantor in the event
that the Borrower and the then current Subsidiary Guarantors contribute less
than 80% of Adjusted Net Operating Income (as further described in
Section 7.11) as of the end of any fiscal quarter of Borrower, or (ii)
that has become a guarantor under any existing or future unsecured Indebtedness
of Borrower (as further described in Section 7.11), such notice to be delivered
to the Administrative Agent concurrently with the delivery of the Compliance
Certificate with respect to such quarter;


(k)                                  Changes
in Name or Fiscal Year.  Prompt
written notice of (i) any change in the Borrower’s name, with copies of all
filings with respect to such name change attached thereto, and (ii) any change
in its fiscal year from that in effect on the Effective Date.


(l)                                     Defaults
or Events of Default.  Prompt written
notice if there shall occur and be continuing a Default or an Event of Default;
and


(m)                               Other
Information.  Such other information
as the Administrative Agent or any Lender shall reasonably request from time to
time.


Documents
required to be delivered pursuant to Section 7.2(c) hereunder or that are
otherwise required to be filed with the SEC and are subject to electronic
filing with the SEC may be delivered electronically and, if so delivered, shall
be deemed to have been delivered on the date (i) on which the Borrower posts
such documents, or provides a link thereto on the Borrower’s website on the
Internet at the website address specified pursuant to Section 11.2; or (ii) on
which such documents are posted on the Borrower’s behalf on an Internet or
intranet website, if any, to which each Lender and the Administrative Agent
have access (whether a commercial, third-party website or whether sponsored by
the Administrative Agent); provided that: (i) the Borrower shall deliver
paper copies of such documents to the Administrative Agent or any Lender that
requests the Borrower to deliver such paper copies until a written request to
cease delivering paper copies is given by the Administrative Agent or such
Lender and (ii) the Borrower shall notify the Administrative Agent and each
Lender (by telecopier or electronic mail) of the posting of 



 50
 









any such documents
and provide to the Administrative Agent by electronic mail electronic versions
(i.e., soft copies) of such documents. 
The Administrative Agent shall have no obligation to request the
delivery or to maintain copies of the documents referred to above, and in any
event shall have no responsibility to monitor compliance by the Borrower with
any such request for delivery, and each Lender shall be solely responsible for
requesting delivery to it or maintaining its copies of such documents.


The
Borrower hereby acknowledges that (a) the Administrative Agent and/or BAS will
make available to the Lenders and the Issuing Lender materials and/or
information provided by or on behalf of the Borrower hereunder (collectively, “Borrower
Materials”) by posting the Borrower Materials on IntraLinks or another similar
electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side”
Lenders (i.e., Lenders that do
not wish to receive material non-public information with respect to the
Borrower or its securities) (each, a “Public Lender”).  The Borrower hereby agrees that (w) all
Borrower Materials that are to be made available to Public Lenders shall be
clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that
the word “PUBLIC” shall appear prominently on the first page thereof; (x) by
marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have
authorized the Administrative Agent, the Arranger, the Issuing Lender and the
Lenders to treat such Borrower Materials as not containing any material
non-public information with respect to the Borrower or its securities for
purposes of United States Federal and state securities laws; (y) all Borrower
Materials marked “PUBLIC” are permitted to be made available through a portion
of the Platform designated “Public Investor;” and (z) the Administrative Agent
and BAS shall treat any Borrower Materials that are not marked “PUBLIC” as
being suitable only for posting on a portion of the Platform not designated “Public
Investor.”


7.3                                 Legal Existence.


(a)                                  Borrower’s
Legal Existence.  Maintain its status
as a Maryland limited liability company in good standing in the State of
Maryland and in each other jurisdiction in which the failure so to do could
reasonably be expected to have a Material Adverse Effect.


(b)                                 Legal
Existence of Subsidiaries.  Cause
each Subsidiary of the Borrower to maintain its status as a real estate
investment trust, business trust, corporation, limited liability company or
partnership, as the case may be, in good standing in its state of formation and
in each other jurisdiction in which the failure so to do could reasonably be
expected to have a Material Adverse Effect; provided, that Borrower may cause
any Subsidiary (other than a Subsidiary Guarantor, except as allowed by
Section 8.2) to be liquidated or dissolved.


7.4                                 Taxes.


Pay
and discharge when due, and cause each Subsidiary of the Borrower so to do, all
Taxes, assessments and governmental charges, license fees and levies upon, or
with respect to, the Borrower or such Subsidiary and all Taxes upon the income,
profits and Property of the Borrower and its Subsidiaries, which if unpaid,
could reasonably be expected to have a Material Adverse Effect, unless and to
the extent only that such Taxes, assessments, governmental charges, license
fees and levies shall be contested in good faith and by appropriate proceedings
diligently conducted by the Borrower or such Subsidiary and such contest has
the effect of staying the collection of any Lien from any Property of the
Borrower or its Subsidiaries arising from such non-payment, and provided
that the Borrower shall give the Administrative Agent prompt notice of such
contest and that such reserve or other appropriate provision as shall be
required in accordance with GAAP (as determined by the Accountants) shall have
been made therefor.


7.5                                 Insurance.


Maintain,
and cause each Subsidiary of the Borrower to maintain, insurance on its
Property against such risks and in such amounts as is customarily maintained by
Persons engaged in similar businesses and owning similar Properties in the same
general areas in which the Borrower or the relevant Subsidiary operates, and
file with the Administrative Agent within 10 Business Days after request
therefor a detailed list of such insurance then in effect, stating the names of
the carriers thereof, the policy numbers, the insureds thereunder, the amounts
of insurance, dates of expiration thereof, and the Property and risks covered
thereby, together with a certificate of the Chief Financial Officer certifying
that in the opinion of such officer such insurance complies with the
obligations of the Borrower under this Section, and is in full force and
effect.



 51
 









7.6                                 Payment of Indebtedness and Performance of
Obligations.


Pay
and discharge when due, and cause each Subsidiary of the Borrower to pay and
discharge, all lawful Indebtedness, obligations and claims for labor, materials
and supplies or otherwise which, if unpaid, could reasonably be expected to
have a Material Adverse Effect, unless such Indebtedness, obligations or claims
shall be contested in good faith and by appropriate proceedings diligently
conducted by the Borrower or such Subsidiary and such contest has the effect of
staying the collection of any Lien from any Property of the Borrower or its
Subsidiaries arising from such non-payment, and provided that the
Borrower shall give the Administrative Agent prompt notice of such contest and
that such reserve or other appropriate provision as shall be required in
accordance with GAAP (as determined by the Accountants) shall have been made
therefor.


7.7                                 Maintenance of Property; Environmental
Investigations.


(a)                                  In
all material respects, at all times, maintain, protect and keep in good repair,
working order and condition (ordinary wear and tear and casualty events
excepted), and cause each Subsidiary of the Borrower so to do, all Property
necessary to the operation of the Borrower’s or such Subsidiary’s business.


(b)                                 In
the event that the Administrative Agent shall have a reasonable basis for
believing that Hazardous Substances may be on, at, under or around any Real
Property in violation of any applicable Environmental Law which, individually
or in the aggregate could reasonably be expected to have a Material Adverse
Effect, promptly conduct and complete (at the Borrower’s expense) all
investigations, studies, samplings and testings relative to such Hazardous
Substances as the Administrative Agent may reasonably request.


7.8                                 Observance of Legal Requirements.


(a)                                  Observe
and comply in all respects, and cause each Subsidiary of the Borrower so to do,
with all laws, ordinances, orders, judgments, rules, regulations,
certifications, franchises, permits, licenses, directions and requirements of
all Governmental Authorities, which now or at any time hereafter may be
applicable to it, except (i) where noncompliance with any of the foregoing
(individually or in the aggregate) could not reasonably be expected to have a
Material Adverse Effect, or (ii) such thereof as shall be contested in good
faith and by appropriate proceedings diligently conducted by it and such
contest has the effect of staying the collection of any Lien from any Property
of the Borrower or its Subsidiaries arising from such noncompliance, and
provided that the Borrower shall give the Administrative Agent prompt notice of
any contest with respect to clause (ii) to the extent that noncompliance could
reasonably be expected to have a Material Adverse Effect and that such reserve
or other appropriate provision as shall be required in accordance with GAAP (as
determined by the Accountants) shall have been made therefor.


(b)                                 Use
and operate all of its facilities and property in compliance with all
Environmental Laws and cause each of its Subsidiaries so to do, and keep all
necessary permits, approvals, certificates, licenses and other authorizations
relating to environmental matters in effect and remain in compliance therewith
and cause each of its Subsidiaries so to do, and handle all Hazardous Materials
in compliance with all applicable Environmental Laws and cause each of its
Subsidiaries so to do, except where noncompliance with any of the foregoing
(individually or in the aggregate) could not reasonably be expected to have a
Material Adverse Effect.


7.9                                 Inspection
of Property; Books and Records; Discussions.


Keep,
and cause its Subsidiaries to keep, proper books of record and account in which
full, true and correct entries in conformity with GAAP and all requirements of
law shall be made of all dealings and transactions in relation to its and its
Subsidiaries’ business and activities and permit representatives of the
Administrative Agent and any Lender (other than Public Lenders) during normal
business hours and on reasonable prior notice to visit its offices and its
Subsidiaries’ offices, to inspect any of its Property and any of its
Subsidiaries’ Property and to examine and make copies or abstracts from any of
its and its Subsidiaries’ books and records as often as may reasonably be
required under the circumstances, and to discuss the business, operations,
prospects, licenses, Property and financial condition of the Borrower and its
Subsidiaries with the officers thereof and the Accountants.  Borrower may have a representative accompany
Administrative Agent or any Lender on any such visit, inspection or discussion.



 52
 









7.10                           Licenses, Intellectual Property.


Maintain,
and cause each Subsidiary of the Borrower to maintain, in full force and
effect, all licenses, franchises, Intellectual Property, permits,
authorizations and other rights as are necessary for the conduct of its
business, the loss of which could reasonably be expected to have a Material
Adverse Effect.


7.11                           Additional Guarantors.


At
any time after the date hereof, in the event that, during any fiscal quarter of
Borrower, Borrower and the Subsidiary Guarantors do not own Unencumbered Assets
which contribute at least eighty percent (80%) of the Adjusted Net Operating
Income for all Unencumbered Assets of the Borrower and its Subsidiaries
determined on a Consolidated basis in accordance with GAAP, then, at the time
that Borrower is to provide the Compliance Certificate with respect to such
quarter to Administrative Agent, Borrower shall cause such Subsidiaries of
Borrower, as designated by the Borrower and approved by Administrative Agent
(such approval not to be unreasonably withheld), to execute and deliver a
Guaranty to the Administrative Agent, for the benefit of the Lenders, duly
executed by such Subsidiaries (together with certificates and attachments of a
nature similar to those described in Section 5.1(b) and (c) with
respect to such Subsidiaries and an opinion of counsel of a nature similar to
those in the form required pursuant to Section 5.6 (c)) so that
Borrower and the Subsidiary Guarantors will again own Unencumbered Assets which
contribute at least 80% of the Adjusted Net Operating Income for all
Unencumbered Assets of the Borrower and its Subsidiaries on a Consolidated
basis.  Additionally, in the event that
any Subsidiary of the Borrower, whether presently existing or hereafter formed
or acquired, which is not a Subsidiary Guarantor at such time, shall after the
date hereof become a guarantor under any existing or future unsecured
Indebtedness of Borrower, then promptly after the Administrative Agent’s
request therefor, Borrower shall cause such Subsidiary to execute and deliver a
Guaranty to the Administrative Agent, for the benefit of the Lenders, duly
executed by such Subsidiaries (together with certificates and attachments of a
nature similar to those described in Section 5.1(b) and (c) with
respect to such Subsidiaries and an opinion of counsel of a nature similar to
those in the form required pursuant to Section 5.6 (c)).  Notwithstanding the foregoing, the foregoing
Adjusted Net Operating Income for all Unencumbered Assets threshold of this
Section shall not be applicable from and after the occurrence of, and during
the continuance of, (i) an Event of Default, or (ii) a reduction by
S&P of its Senior Debt Rating below BBB- or a reduction by Moody’s of its
Senior Debt Rating below Baa3 (it being understood that at such time, the
Administrative Agent can require any Subsidiary of the Borrower (other than an
Excluded Subsidiary) which has not executed a Guaranty to immediately comply
with requirements of this Section).


7.12                           Operation of Business.


(a)                                  Manage,
or cause one or more of its Subsidiaries at all times to manage, at least 90%
of all Properties of the Borrower and its Subsidiaries.


(b)                                 Not,
at any time during the term hereof, (i) fail to observe all organizational
formalities and maintain its records, books of account, bank accounts,
financial statements, accounting records and other entity documents separate
and apart from those of any other Person (except that Borrower’s financial
position, assets, liabilities, net worth and operating results may be included
in the consolidated financial statements of an Affiliate; provided that such
consolidated financial statements contain a footnote indicating that Borrower
is a separate legal entity and that it maintains separate books and records),
(ii) commingle its assets with the assets of any Person holding equity
interests of the Borrower or permit any Person holding equity interests of the
Borrower or any other constituent party independent access to its bank
accounts; (iii) maintain its assets in such a manner that it will be costly or
difficult to segregate, ascertain or identify its individual assets from those
of any other Person; (iv) fail either to hold itself out to the public as a
legal entity separate and distinct from any other Person or to conduct its
business solely in its own name or fail to correct any known misunderstanding
regarding its separate identity; (v) fail to maintain adequate capital for the
normal obligations reasonably foreseeable in a business of its size and
character and in light of their contemplated business operations; (vi) if it is
a partnership or limited liability company, without the unanimous written
consent of all of its partners or members, as applicable, (A) file or consent
to the filing of any petition, either voluntary or involuntary, to take
advantage of any Debtor Relief Laws, (B) seek or consent to the appointment of
a receiver, liquidator or any similar official, (C) take any action that might
cause such entity to become insolvent, or (D) make an assignment for the
benefit of creditors; (vii) fail to remain solvent or pay its own liabilities
(including, without limitation, salaries of its own employees) only from its own
funds, provided that there are sufficient funds from the operation of the
Property to do so; (viii) acquire obligations or securities of its partners, 



 53
 









members,
shareholders or other affiliates, as applicable, except as expressly permitted
herein; or (ix) fail to maintain a sufficient number of employees in light of
its contemplated business operations. 


8.                                       NEGATIVE
COVENANTS.


The
Borrower agrees that, so long as any Loan remains outstanding and unpaid, or
there exists any Letter of Credit Exposure, or any other amount is owing under
any Loan Document to any Lender or the Administrative Agent, or any Lender has
any obligation to make any Loans or the Issuing Lender has any obligation to
issue any Letters of Credit, the Borrower shall not, directly or indirectly:


8.1                                 Liens.


Create,
incur, assume or suffer to exist any Lien upon any of its Property, whether now
owned or hereafter acquired, or permit any Subsidiary of the Borrower so to do,
except the following “Permitted Liens”:


(a)                                  Liens
for Taxes, assessments or similar charges incurred in the ordinary course of
business which are not delinquent or the existence of which do not otherwise
violate the covenants in Section 7.4,


(b)                                 Liens
in connection with workers’ compensation, unemployment insurance or other
social security obligations (but not ERISA and other types of similar statutory
obligations incurred in the ordinary course of business),


(c)                                  Liens,
deposits or pledges to secure bids, tenders, contracts (other than contracts
for the payment of money), leases, statutory obligations, surety or appeal
bonds, performance bonds, completion bonds or other obligations of like nature
arising in the ordinary course of business,


(d)                                 zoning
ordinances, easements, rights of way, use restrictions, exclusive use limitations
in any lease of Real Property, reciprocal easement agreements, minor defects,
irregularities, and other restrictions, charges or encumbrances affecting Real
Property (whether or not recorded), which (i) in the case of Real Property that
does not qualify as an Operating Property, do not materially adversely affect
the value of such Real Property in a manner that causes the fair market value
of such Real Property to be materially less than the book value of such Real
Property; or (ii) in the case of a Real Property that is an Operating Property,
materially impair such Real Property’s use for the operation of the business of
the Borrower or such Subsidiary,


(e)                                  statutory
Liens arising by operation of law such as mechanics’, materialmen’s, carriers’,
warehousemen’s liens incurred in the ordinary course of business which are not
delinquent or the existence of which do not otherwise violate the covenants in
Section 7.6,


(f)                                    Liens
arising out of judgments or decrees which are being contested in accordance
with Section 7.8(a) or the existence of which do not otherwise violate the
covenants in Section 7.8(a) or result in a default pursuant to Section 9.1(j),


(g)                                 mortgages
and related financing statements and security agreements on Real Property and
associated other Property, provided that the existence of such
mortgages, and the Indebtedness secured thereby, does not cause the Borrower to
be in violation of Section 8.15 or 8.16,


(h)                                 Liens
in favor of the Borrower or any Subsidiary Guarantor, provided that the Indebtedness
secured by any such Lien is held by the Borrower or such Subsidiary Guarantor,


(i)                                     the
interests of lessees, lessors, licensees and licensors under leases or licenses
of real or personal property made in the ordinary course of business which
could not reasonably be expected (individually or in the aggregate) to have a
Material Adverse Effect,


(j)                                     Liens
on the interests of Borrower or any Subsidiary of Borrower in any Joint Venture
(including, without limitation, in any FIN 46 Entity) or in any Subsidiary of
Borrower, provided that the existence of such Liens, and the Indebtedness
secured thereby, does not cause the Borrower to be in violation of Section
8.15,



 54
 









(k)                                  Liens
under Capital Leases, provided that the existence of such Capital Lease,
and the indebtedness secured thereby, does not cause the Borrower to be in
violation of Section 8.15, and


(l)                                     Liens
not otherwise permitted by clauses (a) through (k) of this Section which do not
in the aggregate exceed, in principal amount, $15,000,000.


8.2                                 Merger, Consolidation and Certain
Dispositions of Property.


(a)                                  Merger
of Borrower or Subsidiary Guarantors. 
Consolidate with, be acquired by, or merge into or with any Person, or
sell, lease or otherwise dispose of all or substantially all of its Property (in
one transaction or a series of transactions), or permit any Subsidiary
Guarantor so to do, or liquidate or dissolve, except, subject to the last
sentence of this Section 8.2(a),


(i)                                     the
merger or consolidation of any Subsidiary Guarantor into or with the Borrower,


(ii)                                  the
merger or consolidation of any two or more Subsidiary Guarantors (including any
Subsidiaries that become Subsidiary Guarantors upon the consummation of such a
transaction with a Subsidiary Guarantor),


(iii)                               the
merger or consolidation of the Borrower or a Subsidiary Guarantor with any
other Person, provided that (A) the Borrower or such Subsidiary Guarantor is
the surviving entity in such merger or consolidation, or contemporaneously with
the consummation of such transaction the surviving entity becomes a Subsidiary
Guarantor, (B) the total book value of the assets of the entity which is merged
into or consolidated with the Borrower or such Subsidiary Guarantor is less
than 35% of the total book value of the assets of the Borrower and its
Subsidiaries determined on a Consolidated basis in accordance with GAAP
immediately following such merger or consolidation, (C) immediately prior
to such merger or consolidation the Borrower shall have provided to the
Administrative Agent a Compliance Certificate prepared on a pro-forma
basis (and adjusted in the best good faith estimate of the Borrower to give
effect to such merger or consolidation) demonstrating that after giving effect
to such merger or consolidation, no Default shall exist with respect to any of
the covenants set forth in Sections 8.13, 8.14, 8.15, 8.16, 8.17 and 8.18 and
(D) after giving effect to such merger or consolidation, no Event of
Default shall then exist, or


(iv)                              the
merger or consolidation of a Subsidiary Guarantor with any other Person in
which such other Person shall be the surviving entity, the liquidation or
dissolution of a Subsidiary Guarantor, or the sale, lease or other disposition
by a Subsidiary Guarantor of all or substantially all of its Property, so long
as, after giving effect to such transaction, (A) no Default or Event of Default
shall then exist, (B) such transaction does not violate Section 8.2(b) and (C)
Borrower and/or the remaining Subsidiary Guarantors (including any new
Subsidiary Guarantors provided by the Borrower pursuant to Section 7.11 in
connection with such transaction) own Unencumbered Assets which contribute at
least 80% of the Adjusted Net Operating Income for all Unencumbered Assets of
the Borrower and its Subsidiaries determined on a Consolidated basis in
accordance with GAAP.  In the event that
a Subsidiary Guarantor shall engage in a transaction permitted by Section
8.2(a)(iv) (other than a lease of all or substantially all of its assets), then
such Subsidiary Guarantor shall be released by Administrative Agent from
liability under the Guaranty, provided that (1) the Borrower shall
deliver to Administrative Agent evidence satisfactory to Administrative Agent
that the Borrower will be in compliance with all covenants of this Agreement
after giving effect to such transaction and (2) the net cash proceeds from
such sale or disposition are being distributed to Borrower as part of such
dissolution.


Except as set
forth in the following sentence, nothing in this Section 8.2(a) shall in any
way restrict the activities of a Subsidiary that is not a Subsidiary
Guarantor.  Notwithstanding anything
contained herein to the contrary, the Borrower shall not, directly or
indirectly, permit any merger or consolidation of any Subsidiary which owns any
Unencumbered Assets with CA New Plan Fixed Rate Partnership, L.P., any DownREIT
Partnership or any Subsidiary of a DownREIT Partnership.


(b)                                 Dispositions
by Borrower and Subsidiaries.  Except
as expressly permitted by Section 8.2(a), sell, transfer, contribute, master
lease or dispose of any of its Property, either directly or indirectly, or
permit any 



 55
 









Subsidiary
Guarantor so to do, except, subject to the last sentence of this Section
8.2(b), that if at the time thereof and immediately after giving effect
thereto, no Default shall have occurred and be continuing,


(i)                                     any
Subsidiary Guarantor may sell, transfer, contribute, master lease or otherwise
dispose of its assets to the Borrower or to any other Subsidiary Guarantor,


(ii)                                  the
Borrower may sell, transfer, contribute, master lease or otherwise dispose of
its assets to any Subsidiary Guarantor,


(iii)                               in
connection with any transaction pursuant to which a Real Property asset of
Borrower or any Subsidiary Guarantor is or will be encumbered with a mortgage
(as permitted under Section 8.1(g)), the Borrower or any Subsidiary
Guarantor may transfer such asset to any Subsidiary,


(iv)                              Borrower
or any Subsidiary Guarantor may sell, transfer, contribute or dispose of
worn-out, obsolete or surplus Property,


(v)                                 Borrower
or any Subsidiary Guarantor may sell, transfer, contribute, master lease or
otherwise dispose of any of its assets to any Subsidiary, so long as, after
giving effect to such transaction, Borrower and/or the Subsidiary Guarantors
(including any new Subsidiary Guarantors provided by the Borrower pursuant to
Section 7.11 in connection with such transaction) own Unencumbered Assets
which contribute at least 80% of the Adjusted Net Operating Income for all
Unencumbered Assets of the Borrower and its Subsidiaries determined on a
Consolidated basis in accordance with GAAP,


(vi)                              the
Borrower or any Subsidiary of the Borrower may sell, transfer, contribute,
master lease or otherwise dispose of Property in an arm’s length transaction
(or, if the transaction involves an Affiliate of the Borrower, if the
transaction complies with Section 8.8), including, without limitation, a
disposition of Property pursuant to a merger or consolidation (so long as such
merger or consolidation is not prohibited by Section 8.2(a)), provided, however,
that for any fiscal year of the Borrower, any sale, transfer, master lease,
contribution or other disposition of Property in reliance on this clause (vi)
which when combined with all other sales, transfers, master leases,
contributions or dispositions of Property in reliance on this clause (vi) made
in such fiscal year shall not exceed 25% of the total book value of all
Property of the Borrower and its Subsidiaries determined as of the last day of
the preceding fiscal year;


(vii)                           the
Borrower and its Subsidiaries may exchange Property held by the Borrower or a
Subsidiary for one or more Properties of any Person; provided, that the
Board of Directors or Investment Committee of the Borrower has determined in
good faith that the fair market value of the assets received by the Borrower or
any such Subsidiary are approximately equal to the fair market value of the
assets exchanged by the Borrower or such Subsidiary; and


(viii)                        the
Borrower and its Subsidiaries may, in the ordinary course of business, lease Properties
to tenants and dispose of inventory acquired and held for resale.


Except as set
forth in the following sentence, nothing in this Section 8.2(b) (other than
clause (vi)) shall in any way restrict the activities of a Subsidiary that is
not a Subsidiary Guarantor or prohibit the making of any Investment permitted
by Section 8.3.  Notwithstanding anything
contained herein to the contrary, neither the Borrower nor any Subsidiary of
the Borrower shall, directly, or indirectly, sell, transfer, contribute, master
lease or dispose of any Unencumbered Assets to CA New Plan Fixed Rate
Partnership, L.P., any DownREIT Partnership or any Subsidiary of a DownREIT
Partnership other than in connection with any transaction which is otherwise
permitted pursuant to this Section 8.2(b) pursuant to which such Unencumbered
Asset will no longer constitute an Unencumbered Asset as a result of such
transaction.


8.3                                 Investments, Loans, Etc.


At
any time, make any Investments (or permit any of its Subsidiaries to so do),
except the following (to the extent that maintaining any thereof would not at
any time violate the requirements of Section 856(c) of the Code):



 56
 









(a)                                  demand
deposits, certificates of deposit, bankers acceptances and domestic and
eurodollar time deposits with any Lender, or any other commercial bank, trust
company or national banking association incorporated under the laws of the
United States or any State thereof and having undivided capital, surplus and
undivided profits exceeding $500,000,000 and a long term debt rating of A or
A2, as determined, respectively, by S&P and Moody’s;


(b)                                 short-term
direct obligations of the United States of America or agencies thereof whose
obligations are guaranteed by the United States of America;


(c)                                  securities
commonly known as “commercial paper” issued by a corporation organized and
existing under the laws of the United States or any State thereof which at the
time of purchase are rated by S&P or Moody’s at not less than “A1” or “P1,”
respectively;


(d)                                 mortgage-backed
securities guaranteed by the Governmental National Mortgage Association, the
Federal National Mortgage Association or the Federal Home Loan Mortgage
Corporation and other mortgage-backed bonds which at the time of purchase
are rated by S&P or Moody’s at not less than “Aa” or “AA,” respectively;


(e)                                  repurchase
agreements having a term not greater than 90 days and fully secured by
securities described in the foregoing paragraph (b) or (d) with banks described
in the foregoing paragraph (a) or with financial institutions or other
corporations having total assets in excess of $50,000,000;


(f)                                    shares
of “money market funds” registered with the SEC under the Investment Company
Act of 1940 which maintain a level per-share value, invest principally in
the investments described in one or more of the foregoing paragraphs (a)
through (e) and have total assets of in excess of $50,000,000;


(g)                                 Real
Property;


(h)                                 Subject
to Section 8.17, equity investments in any Person (other than Subsidiaries) and
Notes Receivable investments;


(i)                                     Subject
to Section 8.17, Investments (debt or equity) in Subsidiaries of the Borrower;


(j)                                     investments
in respect of (i) equipment, inventory and other tangible personal property or
intangible property acquired in the ordinary course of business, (ii) trade and
customer accounts receivable for services rendered in the ordinary course of
business, (iii) advances to employees for travel expenses other company-related
expenses, and (iv) prepaid expenses made in the ordinary course of business;


(k)                                  Hedging
Agreements made in connection with any Indebtedness;


(l)                                     repurchases
of any common or preferred stock or other equity interests (or securities
convertible into such interests) in the Borrower which do not exceed, in any
calendar year, (i) 10% of the aggregate outstanding shares of common and
preferred stock and other equity interests in Borrower as of the date hereof,
in any combination, plus (ii) 10% of the aggregate of any additional shares of
common and preferred stock and other equity interests in Borrower issued after
the date hereof, in any combination, plus (iii) in calendar year 2007 only,
repurchases made as a result of the Borrower’s obligations to redeem the NXL
Convertible Notes in connection with the Liquidation in an aggregate amount not
to exceed $315,000,000;


(m)                               redemptions
of preferred stock of the Borrower in accordance with the terms thereof;


(n)                                 redemptions
for cash, common Stock or preferred units of the applicable DownREIT
Partnership of the Borrower of units of limited partner interests or limited
liability company interests in a DownREIT Partnership;


(o)                                 loans
or advances to employees of the Borrower, provided that all such loans in the
aggregate do not at any time exceed $25,000,000 in the aggregate;


(p)                                 Capital
Leases; and



 57
 









(q)                                 subject
to Section 8.17, any other Investments not included in paragraphs (a) through
(p) deemed appropriate by the Borrower (provided that in no event shall
Investments made in reliance upon the exception set forth in this paragraph (q)
exceed $75,000,000 in any fiscal year of Borrower).


8.4                                 Business Changes.


Change
in any material respect the nature of the business of the Borrower and its
Subsidiaries, taken as a whole, as conducted on the Effective Date.


8.5                                 Amendments to Organizational Documents.


Amend
or otherwise modify its corporate charter or by-laws in any way (other
than in connection with the issuance or classification of preferred stock of
the Borrower) which would adversely affect the interests of the Administrative
Agent and the Lenders under any of the Loan Documents, or permit any Subsidiary
of the Borrower to amend its organizational documents in a manner which could
reasonably be expected to have the same result.


8.6                                 Anti-Terrorism Laws; FCPA


(a)                                  Be
an “enemy” or an “ally of the enemy” within the meaning of Section 2 of the
Trading with the Enemy Act of the United States of America (50 U.S.C. App. §§ 1
et seq.), as amended; violate or
permit any Subsidiary of the Borrower to violate (i) the Trading with the Enemy
Act, as amended, (ii) any of the foreign assets control regulations of the
United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended)
or any enabling legislation or executive order relating thereto or (iii) the Act
(as defined in Section 11.23); or


(b)                                 fail
to be in compliance with the Foreign Corrupt Practices Act, 15 U.S.C. §§
78dd-1, et seq., and any foreign
counterpart thereto.


8.7                                 Sale and Leaseback.


Enter
into any arrangement with any Person providing for the leasing by it of
Property which has been or is to be sold or transferred by it to such Person or
to any other Person to whom funds have been or are to be advanced by such
Person on the security of such Property or its rental obligations, or permit
any Subsidiary of the Borrower so to do, except for sale and leasing transactions
described herein for which the combined selling price of all Property subject
to all such transactions does not exceed $100,000,000 in any fiscal year of
Borrower.


8.8                                 Transactions with Affiliates.


Become
a party to any transaction in an amount that exceeds $100,000 with an Affiliate
(other than in connection with Investments in Joint Ventures that are otherwise
permitted hereunder and any documents, instruments or agreements entered into
with Joint Ventures pursuant to the business of such Joint Ventures (and to the
extent the other owners of such Joint Ventures are not Affiliates of the
Borrower)) unless the terms and conditions relating thereto (a) have been
approved by a majority of the disinterested directors of the Borrower, (b) have
been approved by a majority of votes cast by the stockholders of the Borrower,
or (c) are upon fair and reasonable terms, no less favorable to the Borrower or
its Subsidiaries than would be obtained in a comparable arm’s-length
transaction with a Person not an Affiliate of the Borrower or a Subsidiary, or
permit any Subsidiary of the Borrower so to do.


8.9                                 Issuance of Additional Capital Stock by
Subsidiary Guarantors.


Permit
any Subsidiary Guarantor to issue any additional Stock or other equity interest
of such Subsidiary Guarantor, other than the issuance of partnership or limited
liability company units in a DownREIT Partnership which is a Subsidiary
Guarantor, provided that such units are issued in consideration of the
contribution to the DownREIT Partnership of assets qualifying as “real estate
assets” under Section 856(c) of the Code.



 58
 









8.10                           Hedging Agreements.


Enter
into, or permit any of its Subsidiaries to enter into, any Hedging Agreement,
other than Hedging Agreements entered into in the ordinary course of business
to hedge or mitigate interest rate risks to which the Borrower or any
Subsidiary of the Borrower is exposed in the conduct of its business or the
management of its liabilities.


8.11                           Restricted Payments.


Make
Restricted Payments, except that:


(a)                                  except
as set forth in clause (b) below, the Borrower may declare and pay dividends
payable with respect to its equity securities in any fiscal quarter of the
Borrower if after giving effect to such dividend, such dividend, when added to
the amount of all other such dividends paid in the same fiscal quarter and the
preceding three (3) fiscal quarters, would not exceed the greater of (i)
ninety-five percent (95%) of its Funds from Operations for the four fiscal
quarters ending prior to the quarter in which such dividend is paid or (ii) the
minimum amount of such dividends required under the Code to enable the Borrower
to continue to maintain its status under the Code as a REIT (if Borrower is
qualified as a REIT), as evidenced (in the case of clause (ii)) by a
certification of Chief Financial Officer containing calculations in reasonable
detail reasonably satisfactory in form and substance to Administrative Agent;


(b)                                 if
an Event of Default under Section 9.1(a) or (b) has occurred and is continuing,
the Borrower may declare and pay dividends with respect to its equity
securities which shall not exceed the minimum amount of such dividends required
under the Code to enable the Borrower to continue to maintain its status under
the Code as a REIT(if Borrower is qualified as a REIT), as evidenced by a
certification of Chief Financial Officer containing calculations in reasonable
detail reasonably satisfactory in form and substance to Administrative Agent;


(c)                                  the
Borrower may (i) effect Stock repurchases and redemptions to the extent
permitted by Sections 8.3(l) or 8.3(m) and (ii) in connection with the
Liquidation, make liquidation payments in respect of the Series D and E
preferred shares of the Borrower in amounts not to exceed $276,250,000 plus any
accrued and unpaid dividends owing at the time of the Liquidation or at the
time of the payment of liquidation payments, as applicable, in accordance with
the terms of the preferred shares;


(d)                                 the
Borrower may effect “cashless exercises” of options granted under the Borrower’s
stock option plans;


(e)                                  the
Borrower may distribute rights or equity securities under any rights plan
adopted by the Borrower; and


(f)                                    the
Borrower may declare and pay dividends (or effect Stock splits or reverse Stock
splits) with respect to its equity securities payable solely in additional
shares of its equity securities.


8.12                           [Intentionally Omitted].


8.13                           Fixed Charge Coverage Ratio.


Permit
the Fixed Charge Coverage Ratio to be less than 1.60:1.0 at any time.


8.14                           Minimum Tangible Net Worth.


Permit
the Tangible Net Worth of the Borrower and its Subsidiaries on a Consolidated
basis in accordance with GAAP at any time to be less than the sum of (a)
$1,225,000,000.00, plus (b) 80% of the aggregate net proceeds received by the
Borrower from and after the Effective Date in connection with the issuance of
any capital stock of the Borrower.


8.15                           Total Indebtedness to Total Assets; Secured
Indebtedness to Total Assets.


(a)                                  Permit
the ratio of Consolidated Total Indebtedness to Adjusted Consolidated Total
Assets, at any time, to exceed 60%; or



 59
 









(b)                                 Permit
at any time the portion of the Consolidated Total Indebtedness (which shall
exclude Indebtedness of FIN 46 Entities and other Joint Ventures that are not
Subsidiaries) consisting of Consolidated secured Indebtedness of Borrower and
its Subsidiaries at such time to exceed 40% of Adjusted Consolidated Total
Assets at such time.


8.16                           Indebtedness to Unencumbered Assets Ratio.


Permit
the ratio of Consolidated Total Indebtedness consisting of Consolidated unsecured
Indebtedness of the Borrower and its Subsidiaries to Unencumbered Asset Value
to, at any time, to exceed 60%; provided, however, that up to two times during
the term hereof, such ratio of Consolidated Total Indebtedness consisting of
Consolidated unsecured Indebtedness of the Borrower and its Subsidiaries to
Unencumbered Asset Value may, during any 180 day period following any Material
Acquisition, exceed 60%, but shall not, in any case, exceed 65%.


8.17                           Maximum Book Value of Ancillary Assets.


Permit
the book value of the Ancillary Assets at any time to be more than 25% of the
Adjusted Consolidated Total Assets of the Borrower and its Subsidiaries
determined on a Consolidated basis in accordance with GAAP at such time.  For purposes of this Section 8.17 the book
value of any Ancillary Asset not owned 100%, directly or indirectly, by the
Borrower or any of its Subsidiaries shall be adjusted by multiplying the same
by the Borrower’s Interest in such Ancillary Asset during the fiscal quarter of
the Borrower ending as of any date of determination of such book value.


8.18                           Development Activity.


Engage,
directly or indirectly, or permit any Subsidiary or Joint Venture to engage, in
the ground-up development of Real Property except for the ground-up development
of New Construction Assets to be used principally as a retail shopping center, provided
that the cost of New Construction Assets by Borrower and its Subsidiaries and
Joint Ventures shall not at any time exceed fifteen percent (15%) of the
Borrower’s Adjusted Consolidated Total Assets. 
For purposes of this Section 8.18 the book value of any New
Construction Assets not owned 100%, directly or indirectly, by the Borrower or
any of its Subsidiaries shall be adjusted by multiplying the same by the
Borrower’s Interest in such New Construction Asset during the fiscal quarter of
the Borrower ending as of any date of determination of such book value.


9.                                       DEFAULTS/EVENTS
OF DEFAULT.


9.1                                 Events of Default.


The
following shall each constitute an “Event of Default”:


(a)                                  The
failure of the Borrower to pay any installment of principal on any Note on the
date when due and payable; or


(b)                                 The
failure of the Borrower to pay any installment of interest, any reimbursement
obligations under the Letters of Credit (other than obligations included in
Section 9.1(a)), or any other fees, expenses or other charges payable under any
Loan Document within five Business Days of the date when due and payable; or


(c)                                  The
use of the proceeds of any Loan in a manner inconsistent with or in violation
of Section 2.15; or


(d)                                 The
failure of the Borrower to observe or perform any covenant or agreement
contained in Section 7.12(a), 7.12(b), or 8 (other than Sections
8.1, 8.3, 8.5, 8.7, 8.8 and 8.10 as to
which the provisions of paragraph (e) below shall apply); or


(e)                                  The
failure of Borrower or any of its Subsidiaries to observe or perform any other
term, covenant, or agreement contained in any Loan Document and such failure
shall have continued unremedied for a period of 30 days after notice thereof from
the Administrative Agent to the Borrower, provided that if Borrower
shall have 



 60
 









exercised
reasonable diligence to cure such failure and such failure cannot be cured
within such 30 day period despite such reasonable diligence, Borrower shall
have the right to cure such failure within 90 days after the date of such
notice from Administrative Agent provided Borrower diligently and continuously
pursues the completion of such cure (unless any such default is excluded from
any provision of a grace period or cure of defaults contained in any other Loan
Document or unless a shorter cure period is specified in any other Loan
Document with respect to such default); or


(f)                                    Any
representation or warranty of the Borrower (or of any officer of the Borrower
on its behalf) made in any Loan Document to which it is a party or in any
certificate, report, opinion (other than an opinion of counsel) or other
document delivered or to be delivered pursuant thereto, shall prove to have
been incorrect or misleading (whether because of misstatement or omission) in
any material respect when made; or


(g)                                 Any
obligation of the Borrower (other than its obligations under the Notes and
other than its obligations to redeem the NXL Convertible Notes in connection
with the Merger and/or Liquidation in an aggregate amount not to exceed
$315,000,000) or any Subsidiary of the Borrower, whether as principal,
guarantor, surety or other obligor, for the payment of any Indebtedness shall
(i) become or shall be declared to be due and payable prior to the expressed
maturity thereof, or (ii) shall not be paid when due or within any grace period
for the payment thereof, or (iii) shall (except with respect to any Excepted
Mortgage Indebtedness or with respect to any delay in the completion of
financial statements relating to the first quarter of 2007 so long as such
financial statements are completed prior to the expiration of any cure period
applicable thereto) be subject, by the holder of the obligation evidencing such
Indebtedness, to acceleration (after the expiration of any applicable notice
and cure periods) prior to the expressed maturity thereof, and the sum of all
such Indebtedness which is the subject of paragraphs (i) - (iii)
inclusive exceeds (A) at any time, in the case of Indebtedness other than Non-Recourse
Indebtedness, $15,000,000, and (B) in any calendar year, in the case of Non-Recourse
Indebtedness, $50,000,000 in the aggregate during such year;  or


(h)                                 The
Borrower or any Subsidiary of the Borrower shall (i) suspend or discontinue its
business (except as permitted by Section 7.3 or 8.2), (ii) make an
assignment for the benefit of creditors, (iii) generally not be paying its
debts as such debts become due, (iv) admit in writing its inability to pay its
debts as they become due, (v) file a voluntary petition in bankruptcy, (vi)
become insolvent (however such insolvency shall be evidenced), (vii) file any
petition or answer seeking for itself any reorganization, arrangement,
composition, readjustment of debt, liquidation or dissolution or similar relief
under any present or future statute, law or regulation of any jurisdiction,
(viii) petition or apply to any tribunal for any receiver, custodian or any
trustee for any substantial part of its Property, (ix) be the subject of any
such proceeding filed against it which remains undismissed for a period of 60
days, (x) file any answer admitting or not contesting the material allegations
of any such petition filed against it or any order, judgment or decree
approving such petition in any such proceeding, (xi) seek, approve, consent to,
or acquiesce in any such proceeding, or in the appointment of any trustee,
receiver, custodian, liquidator, or fiscal agent for it, or any substantial
part of its Property, or an order is entered appointing any such trustee,
receiver, custodian, liquidator or fiscal agent and such order remains in
effect for 60 days, or (xii) take any formal action for the purpose of
effecting any of the foregoing; provided that the events described in
this Section 9.1(h) as to any Subsidiary of the Borrower that is not a
Subsidiary Guarantor shall not constitute an Event of Default unless the
aggregate book value of Borrower’s direct or indirect equity Investment in all
such Subsidiaries exceeds $50,000,000; or


(i)                                     An
order for relief is entered under the United States bankruptcy laws or any
other decree or order is entered by a court having jurisdiction (i) adjudging
the Borrower or any Subsidiary bankrupt or insolvent, (ii) approving as
properly filed a petition seeking reorganization, liquidation, arrangement,
adjustment or composition of or in respect of the Borrower or any Subsidiary
under the United States bankruptcy laws or any other applicable Federal or
state law, (iii) appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of the Borrower or any Subsidiary or
of any substantial part of the Property thereof, or (iv) ordering the winding
up or liquidation of the affairs of the Borrower or any Subsidiary, and any
such decree or order continues unstayed and in effect for a period of 60 days; provided
that the events described in this Section 9.1(i) as to any Subsidiary of the
Borrower that is not a Subsidiary Guarantor shall not constitute an Event of
Default unless the aggregate book value of Borrower’s direct or indirect equity
Investment in all such Subsidiaries exceeds $50,000,000; or



 61















(j)                                     Judgments
or decrees against the Borrower or any Subsidiary of the Borrower not covered
by insurance aggregating in excess of $15,000,000 shall not be paid, stayed on
appeal, discharged, bonded or dismissed for a period of 45 days; or


(k)                                  Any
Loan Document shall cease, for any reason (other than in accordance with its
terms), to be in full force and effect, or the Borrower shall so assert in
writing or shall disavow any of its obligations thereunder; or


(l)                                     An
event or condition specified in Section 7.2(d) shall occur or exist with
respect to any Plan or Multiemployer Plan and, as a result of such event or
condition, together with all other such events or conditions, the Borrower
shall be reasonably likely to incur a liability to a Plan, a Multiemployer Plan,
the PBGC, or any combination thereof, equal to or in excess of $15,000,000
individually or in the aggregate; or


(m)                               There
shall occur a Change of Control; or


(n)                                 If
any Loan Document (i) is determined by any court or Governmental Authority to
be illegal, invalid or unenforceable in accordance with its terms, or (ii)
shall be canceled, terminated, revoked or rescinded other than in accordance
with its terms or with the written consent or approval of the Lenders; or


(o)                                 (i) Any
Subsidiary Guarantor shall fail to comply in any material respect with any
covenant made by it in the Guaranty or if at any time any representation or
warranty made by any Subsidiary Guarantor in the Guaranty or in any other
document, statement or writing made to the Administrative Agent, the Lead
Arranger or the Lenders shall prove to have been incorrect or misleading in any
material respect when made, or (ii) if a default by any Subsidiary Guarantor
shall occur under the Guaranty after the expiration of any applicable notice and
grace period; or (iii) if any Subsidiary Guarantor shall revoke or attempt to
revoke, contest, commence any action or raise any defense (other than the
defense of payment) against its obligations under the Guaranty.


Upon the
occurrence of an Event of Default or at any time thereafter during the
continuance thereof, (a) if such event is an Event of Default specified in
clause (h) or (i) above, the Commitments shall immediately and automatically
terminate, and the Loans, all accrued and unpaid interest thereon, and all
other amounts owing under the Loan Documents shall immediately become due and
payable, and the Administrative Agent may, and upon the direction of the
Required Lenders shall, exercise any and all remedies and other rights provided
in the Loan Documents, and (b) if such event is any other Event of Default, any
or all of the following actions may be taken: (i) with the consent of the
Required Lenders, Administrative Agent may, and upon the direction of the
Required Lenders shall, by notice to the Borrower, declare the Commitments to
be terminated forthwith, whereupon the Commitments shall immediately terminate,
and (ii) with the consent of the Required Lenders, the Administrative Agent
may, and upon the direction of the Required Lenders shall, by notice of default
to the Borrower, declare the Loans, all accrued and unpaid interest thereon and
all other amounts owing under the Loan Documents to be due and payable
forthwith, whereupon the same shall immediately become due and payable, and the
Administrative Agent may, and upon the direction of the Required Lenders shall,
exercise any and all remedies and other rights provided pursuant to the Loan
Documents.  Except as otherwise provided
in this Section, presentment, demand, protest and all other notices of any kind
are hereby expressly waived.  The
Borrower hereby further expressly waives and covenants not to assert any
appraisement, valuation, stay, extension, redemption or similar laws, now or at
any time hereafter in force which might delay, prevent or otherwise impede the
performance or enforcement of any Loan Document.  Notwithstanding anything contained herein to
the contrary, if demanded by Administrative Agent or the Required Lenders in
their sole and absolute discretion (a) after the occurrence and during the
continuation of an Event of Default or (b) if the Issuing Lender has
honored any full or partial drawing request under any Letter of Credit and such
drawing has not been reimbursed on the date when made or refinanced as a Prime
Rate Loan, Borrower will deposit with and pledge to Administrative Agent cash
in an amount equal to the amount of all undrawn Letters of Credit.  Such amounts will be pledged to and held by
Administrative Agent for the benefit of the Lenders as security for any amounts
that become payable under the Letters of Credit and all other obligations
hereunder.  Upon any draws under Letters
of Credit, at Administrative Agent’s sole discretion, Administrative Agent may
apply any such amounts to the repayment of amounts drawn thereunder and upon
the expiration of the Letters of Credit any remaining amounts will be applied
to the payment of all other obligations of Borrower under the Loan Documents or
if there are no such outstanding obligations and Lenders have no further
obligation to make 



 62
 









Loans or issue
Letters of Credit or if such excess no longer exists, such proceeds deposited
by Borrower will be released to Borrower.


In
the event that the Commitments shall have been terminated or the Notes shall
have been declared due and payable pursuant to the provisions of this Section,
any funds received by the Administrative Agent and the Lenders from or on
behalf of the Borrower shall be applied by the Administrative Agent and the
Lenders in liquidation of the Loans and the obligations of the Borrower under
the Loan Documents in the following manner and order:  (i) first, to the payment of interest on and
then the principal portion of any Loans which the Administrative Agent may have
advanced on behalf of any Lender for which the Administrative Agent has not
then been reimbursed by such Lender or the Borrower; (ii) second, to reimburse
the Administrative Agent and the Lenders for any expenses due from the Borrower
pursuant to the provisions of Section 11.5; (iii) third, to the payment of
all other fees, expenses and amounts due under the Loan Documents (other than
principal and interest on the Notes); provided, however, that distributions in
respect of such fees and expenses due to the Administrative Agent from the
Borrower shall be made pari passu with respect to the payment of any other
fees, expenses or amounts due the Lenders from the Borrower; (iv) fourth, to
the payment of interest due on the Swing Note; (v) fifth, to the payment
of principal outstanding on the Swing Note; (vi) sixth, to the payment of
interest due on the Notes; (vii) seventh, to the payment of principal
outstanding on the Notes; and (viii) eighth, to the payment of any other
amounts owing to the Administrative Agent, the Lead Arranger and the Lenders
under any Loan Document or other document or agreement entered into in
connection with the transactions contemplated thereby.  In the event that any Lender shall have
wrongfully failed or refused to make an advance under Section 2.1, 2.1A, 2.3,
2.4 or 2.5 and such failure or refusal shall be continuing, advances made by
the other Lenders during the pendency of such failure or refusal shall be
entitled to be repaid as to principal and accrued interest in priority to the
other obligations described in subsections (ii) – (viii) in the preceding
sentence.


10.                                 THE
AGENT.


10.1                           Appointment and Authority.


Each
of the Lenders and the Issuing Lender hereby irrevocably appoints Bank of
America to act on its behalf as the Administrative Agent hereunder and under
the other Loan Documents and authorizes the Administrative Agent to take such
actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms hereof or thereof, together with such actions
and powers as are reasonably incidental thereto.  Except as provided in Section 10.8 and 10.12,
the provisions of this Article are solely for the benefit of the Administrative
Agent, the Lenders, and the Issuing Lender, and neither the Borrower nor any
Subsidiary Guarantor shall have rights as a third party beneficiary of any of
such provisions.


10.2                           Rights as a Lender.


The
Person serving as the Administrative Agent hereunder shall have the same rights
and powers in its capacity as a Lender 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 or unless the context otherwise
requires, include the Person serving as the Administrative Agent hereunder in
its individual capacity.  Such Person and
its Affiliates may accept deposits from, lend money to, act as the financial
advisor or in any other advisory capacity for and generally engage in any kind
of business with the Borrower or any Subsidiary or other Affiliate thereof as
if such Person were not the Administrative Agent hereunder and without any duty
to account therefor to the Lenders.


10.3                           Exculpatory Provisions.


The
Administrative Agent shall not have any duties or obligations except those
expressly set forth herein and in the other Loan Documents.  Without limiting the generality of the
foregoing, the Administrative Agent:


(a)                                  shall
not be subject to any fiduciary or other implied duties, regardless of whether
a Default has occurred and is continuing;


(b)                                 shall
not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents that the 



 63
 









Administrative
Agent is required to exercise as directed in writing by the Required Lenders
(or such other number or percentage of the Lenders as shall be expressly
provided for herein or in the other Loan Documents), provided that the
Administrative Agent shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose the Administrative Agent to
liability or that is contrary to any Loan Document or applicable law; and


(c)                                  shall
not, except as expressly set forth herein and in the other Loan Documents, have
any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrower or any of its Affiliates that is
communicated to or obtained by the Person serving as the Administrative Agent
or any of its Affiliates in any capacity.


The
Administrative Agent shall not be liable for any action taken or not taken by
it (i) with the consent or at the request of the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 11.1 and 9.1) or (ii) in the absence of
its own gross negligence or willful misconduct.


The
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement or any other Loan Document, (ii) the contents of
any certificate, report or other document delivered hereunder or thereunder or
in connection herewith or therewith, (iii) the performance or observance of any
of the covenants, agreements or other terms or conditions set forth herein or
therein or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or any
other agreement, instrument or document or (v) the satisfaction of any
condition set forth in Article V, Article VI or elsewhere herein,
other than to confirm receipt of items expressly required to be delivered to
the Administrative Agent.  To the extent
any Lender requests any materials or information provided to the Administrative
Agent by the Borrower pursuant to the terms hereof, the Administrative Agent
shall make reasonable good faith efforts to deliver such materials or
information to such Lender promptly following such request.


10.4                           Reliance by
Administrative Agent.


The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying in good faith upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any
electronic message, Internet or intranet website posting or other distribution)
believed by it to be genuine and to have been signed, sent or otherwise
authenticated by the proper Person.  The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to have been made by the proper Person, and shall
not incur any liability for relying thereon. 
In determining compliance with any condition hereunder to the making of
a Loan, that by its terms must be fulfilled to the satisfaction of a Lender,
the Administrative Agent may presume that such condition is satisfactory to
such Lender unless the Administrative Agent shall have received notice to the
contrary from such Lender prior to the making of such Loan.  The Administrative Agent may consult with
legal counsel, independent accountants and other experts selected by it, and
shall not be liable for any action taken or not taken by it in accordance with
the advice of any such counsel, accountants or experts.


10.5                           Notice
of Default.


The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default, except with respect to defaults
in the payment of principal, interest and fees required to be paid to the
Administrative Agent for the account of the Lenders, unless the Administrative
Agent has received written notice thereof from a Lender or the Borrower.  In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall promptly give notice
thereof to the Lenders.  The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders,
provided, however, that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem to be in the best
interests of the Lenders.


10.6                           Delegation of Duties.


The
Administrative Agent may perform any and all of its duties and exercise its
rights and powers hereunder or under any other Loan Document by or through its
Related Parties.  The exculpatory
provisions of this 



 64
 









Article shall
apply to any such Related Parties of the Administrative Agent, and shall apply
to any such Related Parties’ activities in connection with the syndication of
the credit facilities provided for herein as well as activities as
Administrative Agent.


10.7                           Indemnification.


Each
Lender agrees to indemnify and reimburse the Administrative Agent in its
capacity as such (to the extent not promptly reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), pro rata according
to its Commitment, from and against any and all liabilities, obligations,
claims, losses, damages, penalties, actions, judgments, suits, costs, expenses
or disbursements of any kind whatsoever including, without limitation, any
amounts paid to the Lenders (through the Administrative Agent) by the Borrower,
any Subsidiary Guarantor pursuant to the terms of the Loan Documents, that are
subsequently rescinded or avoided, or must otherwise be restored or returned) which
may at any time (including, without limitation, at any time following the
payment of the Notes) be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of the Loan
Documents or any other documents contemplated by or referred to therein or the
transactions contemplated thereby or any action taken or omitted to be taken by
the Administrative Agent under or in connection with any of the foregoing;
provided, however, that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, claims, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements to the extent
resulting solely from the gross negligence or willful misconduct of the
Administrative Agent.  The agreements in
this Section shall survive the payment of all amounts payable under the Loan
Documents.


10.8                           Successor
Administrative Agent.


The
Administrative Agent may at any time give notice of its resignation to the
Lenders, the Issuing Lender and the Borrower. 
Upon receipt of any such notice of resignation, the Required Lenders
shall have the right, in consultation with the Borrower, to appoint a
successor, which shall be a bank with an office in the United States, or an
Affiliate of any such bank with an office in the United States.  If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment in
writing within 30 days after the retiring Administrative Agent gives notice of
its resignation, then the retiring Administrative Agent shall, in consultation
with the Borrower, appoint a successor Administrative Agent on behalf of the
Lenders and the Issuing Lender prior to the end of the 60th day from such
notice from among any of the Lenders who shall have at such time agreed to act
as the successor Administrative Agent and shall have at such time a Commitment
of at least $10,000,000 (an “Approved Successor”).  If no Lender has a Commitment of at least
$10,000,000 (or no Lender whose Commitment is at least $10,000,000 shall agree
to accept such appointment), then the retiring Administrative Agent shall, in
consultation with the Borrower (unless an Event of Default has occurred and is
continuing), appoint any other Lender or any other commercial bank organized
under the laws of the United States of America or any State thereof and having
a combined capital and surplus of at least $100,000,000 as a successor
Administrative Agent.  Any appointment of
a successor Administrative Agent shall be subject to the approval of the
Borrower, which approval shall not be unreasonably withheld or delayed, and
shall be given in any event prior to the end of the 60th day from the date of
the retiring Administrative Agent’s notice of removal or resignation, provided
that during any period in which there exists and is continuing an Event of
Default, no consultation with, or approval from, the Borrower with respect to
the appointment of an Approved Successor shall be required.  Upon the acceptance of an appointment as Administrative
Agent hereunder by a successor Administrative Agent and any required approval
of such successor Administrative Agent by the Borrower in accordance with the
terms of this Section, such successor Administrative Agent shall thereupon
succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring (or retired) Administrative Agent, and the retiring
Administrative Agent shall be discharged from all of its duties and obligations
as Administrative Agent hereunder or under the other Loan Documents (if not
already discharged therefrom as provided above in this Section).  The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such
successor.  The Required Lenders may
remove the Administrative Agent from its capacity as administrative agent in
the event of the Administrative Agent’s willful misconduct or gross
negligence.  Such removal shall be
effective upon appointment and acceptance of a successor Administrative Agent
selected by the Required Lenders.  Any
successor Administrative Agent must satisfy the conditions set forth in this
Section 10.8 (including, without limitation, the consultation with, and approval
from, the Borrower, to the extent required under this Section 10.8).  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 rights, powers, privileges and duties of the removed Administrative
Agent, and the removed Administrative Agent 



 65
 









shall be
discharged from all further duties and obligations as Administrative Agent
under this Agreement and the Loan Documents, provided that the Administrative
Agent shall remain liable to the extent provided in the Loan Documents for its
actions and omissions occurring prior to such removal.  The Commitment of the Lender which is acting
as Administrative Agent shall not be taken into account in the calculation of
Required Lenders for the purposes of removing Administrative Agent in the event
of the Administrative Agent’s willful misconduct or gross negligence.  After the retiring or removed Administrative
Agent’s resignation or removal hereunder and under the other Loan Documents,
the provisions of this Article and Sections 11.5 and 11.12 shall continue in
effect for the benefit of such retiring or removed Administrative Agent, its
sub agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while the retiring or removed
Administrative Agent was acting as Administrative Agent.


Any
resignation by, or removal of, Bank of America as Administrative Agent pursuant
to this Section shall also constitute its resignation or removal, as
applicable, as Issuing Lender and Swing Loan Lender.  Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, (a) such successor shall
succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring or removed Issuing Lender and Swing Loan Lender,
(b) the retiring or removed Issuing Lender and Swing Loan Lender shall be
discharged from all of their respective duties and obligations hereunder or
under the other Loan Documents, and (c) the successor Issuing Lender shall
issue letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or make other arrangement
satisfactory to the retiring or removed Issuing Lender to effectively assume,
at the time of such succession, the obligations of the retiring or removed
Issuing Lender with respect to such Letters of Credit.  After the retiring Issuing Lender’s and Swing
Lender’s resignation hereunder and under the other Loan Documents, the
provisions of this Article and Sections 11.5 and 11.12 shall continue in effect
for the benefit of such retiring Issuing Lender and Swing Lender, their sub
agents and their respective Related Parties in respect of any actions taken or
omitted to be taken by any of them while the retiring Issuing Lender and Swing
Lender were acting as Issuing Lender and Swing Lender, respectively.


10.9                           Non-Reliance
on Administrative Agent and Other Lenders.


Each
Lender and the Issuing Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender or any of
their Related Parties and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into
this Agreement.  Each Lender and the
Issuing Lender also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender or any of their Related
Parties and based on such documents and information as it shall from time to
time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any other Loan Document or
any related agreement or any document furnished hereunder or thereunder.


10.10                     No Other
Duties, Etc.


Anything
herein to the contrary notwithstanding, none of the Book Manager or the Lead
Arranger listed on the cover page hereof shall have any powers, duties or
responsibilities under this Agreement or any of the other Loan Documents,
except in its capacity, as applicable, as the Administrative Agent, a Lender or
the Issuing Lender hereunder.


10.11                     Administrative
Agent May File Proofs of Claim.


In
case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Borrower or any Subsidiary Guarantor, the
Administrative Agent (irrespective of whether the principal of any Loan or
Letter of Credit Exposure shall then be due and payable as herein expressed or
by declaration or otherwise and irrespective of whether the Administrative
Agent shall have made any demand on the Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise:


(a)                                  to
file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans or Letter of Credit Exposure and all other
obligations of the Borrower and the Subsidiary Guarantors under the Loan
Documents that are owing and unpaid and to file such other documents as may be
necessary or advisable in order to have the claims of the Lenders, the Issuing
Lender and the Administrative Agent 



 66
 









(including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Lenders, the Issuing Lender and the Administrative Agent and their
respective agents and counsel and all other amounts due the Lenders, the
Issuing Lender and the Administrative Agent under Sections 2.5(f) 3.1, 11.5 and
11.12) allowed in such judicial proceeding; and


(b)                                 to
collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;


and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the
Issuing Lender to make such payments to the Administrative Agent and, in the
event that the Administrative Agent shall consent to the making of such
payments directly to the Lenders and the Issuing Lender, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its agents and
counsel, and any other amounts due the Administrative Agent under Sections 3.1,
11.5 and 11.12.


Nothing contained
herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender, or the Issuing Lender
any plan of reorganization, arrangement, adjustment or composition affecting
the obligations of the Borrower and the Subsidiary Guarantors under the Loan
Documents or the rights of any Lender or to authorize the Administrative Agent
to vote in respect of the claim of any Lender in any such proceeding.


10.12                     Guaranty
Matters.


The
Lenders and the Issuing Lender irrevocably authorize the Administrative Agent
to release any Subsidiary Guarantor from its obligations under the Guaranty if
(i) such Person ceases to be a Subsidiary or own any assets (other than assets
of nominal value) as a result of a transaction permitted hereunder, or (ii) the
Borrower otherwise requests such release and provides evidence satisfactory to
the Administrative Agent that after giving effect to such release the Borrower
will be in compliance with all covenants under this Agreement, including,
without limitation, the obligations under Section 7.11.


Upon
request by the Administrative Agent at any time, the Required Lenders will
confirm in writing the Administrative Agent’s authority to release any
Subsidiary Guarantor from its obligations under the Guaranty pursuant to this Section
10.12.


11.                                 OTHER
PROVISIONS.


11.1                           Amendments
and Waivers.


With
the written consent of the Required Lenders, the Administrative Agent and the
Borrower may, from time to time, enter into written amendments, supplements or
modifications of the Loan Documents and, with the consent of the Required
Lenders, the Administrative Agent on behalf of the Lenders may execute and
deliver to any such parties a written instrument waiving or a consent to a
departure from, on such terms and conditions as the Administrative Agent may
specify in such instrument, any of the requirements of the Loan Documents or
any Default or Event of Default and its consequences; provided, however,
that no such amendment, supplement, modification, waiver or consent shall,
without the consent of all of the Lenders: 
(a) extend the Maturity Date; (b) decrease the rate, or extend the time
of payment, of interest of, or change or forgive the principal amount of, or
change the requirement that payments and prepayments of principal on, and
payments of interest on, the Notes be made pro rata to the Lenders on the basis
of the outstanding principal amount of the Loans, (c) amend the definitions of “Required
Lender”, (d) amend any provision of this Agreement or the Loan Documents which
requires the approval of all of the Lenders or the Required Lenders to require
a lesser number of Lenders to approve such action, (e) release any Subsidiary
Guarantor from its obligations under a Guaranty except as provided in Sections
8.2 or 10.12, or (f) reduce any fee payable for the account of the Lenders
pursuant to Section 3.1 or change the provisions of this Section 11.1; and
provided further that no such amendment, supplement, modification, waiver or
consent shall amend, modify, waive or consent to a departure from any provision
of Section 10 or otherwise change any of the rights or obligations of the
Administrative Agent under the Loan Documents without the written consent of the
Administrative Agent.  In addition, no
Commitment of any Lender may be increased or decreased without the approval of
such Lender except, with respect to decreases of a Lender’s Commitment, in
connection with a pro rata 



 67
 









reduction of the
Total Commitment Amount in accordance with the terms of this Agreement.  The Administrative Agent shall cause a copy
of each written request for such an amendment, supplement or modification
delivered by the Borrower to it to be delivered to each Lender.  Any such amendment, supplement, modification,
waiver or consent shall apply equally to each of the Lenders and shall be
binding upon the parties to the applicable agreement, the Lenders, the
Administrative Agent and all future holders of the Notes.  In the case of any waiver, the parties to the
applicable agreement, the Lenders and the Administrative Agent shall be
restored to their former position and rights under the Loan Documents, and any
Default or Event of Default waived shall not extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon.  Notwithstanding anything contained herein to
the contrary, (i) there shall be no amendment, modification or waiver of any
provisions in the Loan Documents governing the rights and duties of any Lender
specifically with respect to Swing Loans, Competitive Advances or Letters of
Credit without the consent of the Swing Loan Lender, or any Lender then holding
a Competitive Advance, or Issuing Lender, respectively and (ii) no Defaulting
Lender shall have the right to approve or disapprove any amendment waiver or
consent hereunder, except that the Commitment of such Lender may not be
increased or extended without the consent of such Lender.


11.2                           Notices.


(a)                                  Notices
Generally.  Except in the case of
notices and other communications expressly permitted to be given by telephone
(and except as provided in subsection (b) below), all notices and other
communications provided for herein shall be in writing and shall be delivered
by hand or overnight courier service, mailed by certified or registered mail or
sent by telecopier as follows, and all notices and other communications
expressly permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:


(i)                                     if
to the Borrower, the Administrative Agent, the Issuing Lender or the Swing Loan
Lender, to the address, telecopier number, electronic mail address or telephone
number specified for such Person on Schedule 11.2; and


(ii)                                  if
to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire.


Notices sent by
hand or overnight courier service, or mailed by certified or registered mail,
shall be deemed to have been given when received; notices sent by telecopier
shall be deemed to have been given when sent (except that, if not given during
normal business hours for the recipient, shall be deemed to have been given at
the opening of business on the next business day for the recipient).  Notices delivered through electronic
communications to the extent provided in subsection (b) below, shall be
effective as provided in such subsection (b).


(b)                                 Electronic
Communications.  Notices and other
communications to the Lenders and the Issuing Lender hereunder may be delivered
or furnished by electronic communication (including e-mail and Internet
or intranet websites) pursuant to procedures approved by the Administrative
Agent, provided that the foregoing shall not apply to notices to any
Lender or the Issuing Lender pursuant to Section 2 if such Lender or the
Issuing Lender, as applicable, has notified the Administrative Agent that it is
incapable of receiving notices under such Section by electronic
communication.  The Administrative Agent
or the Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may
be limited to particular notices or communications.


Unless the
Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender’s receipt of an acknowledgement from the intended recipient (such as by
the “return receipt requested” function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient,
such notice or communication shall be deemed to have been sent at the opening
of business on the next business day for the recipient, and (ii) notices
or communications posted to an Internet or intranet website shall be deemed
received upon the deemed receipt by the intended recipient at its e-mail
address as described in the foregoing clause (i) of notification that such
notice or communication is available and identifying the website address
therefor.


(c)                                  The
Platform.  THE PLATFORM IS PROVIDED “AS
IS” AND “AS AVAILABLE.”  THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE
BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM 



 68
 









LIABILITY FOR
ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS.  NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR
OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER
MATERIALS OR THE PLATFORM.  In no event shall
the Administrative Agent or any of its Related Parties (collectively, the “Agent
Parties”) have any liability to the Borrower, any Lender, the Issuing Lender or
any other Person for losses, claims, damages, liabilities or expenses of any
kind (whether in tort, contract or otherwise) arising out of the Borrower’s or
the Administrative Agent’s transmission of Borrower Materials through the
Internet, except to the extent that such losses, claims, damages, liabilities
or expenses are determined by a court of competent jurisdiction by a final and
nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Agent Party; provided, however, that in no
event shall any Agent Party have any liability to the Borrower, any Lender, the
Issuing Lender or any other Person for indirect, special, incidental,
consequential or punitive damages (as opposed to direct or actual damages).


(d)                                 Change
of Address, Etc.  Each of the
Borrower, the Administrative Agent, the Issuing Lender and the Swing Loan
Lender may change its address, electronic mail address, telecopier or telephone
number for notices and other communications hereunder by notice to the other
parties hereto.  Each Lender may change
its address, electronic mail address, telecopier or telephone number for
notices and other communications hereunder by notice to the Borrower, the
Administrative Agent, the Issuing Lender and the Swing Loan Lender.  In addition, each Lender agrees to notify the
Administrative Agent from time to time to ensure that the Administrative Agent
has on record (i) an effective address, contact name, telephone number,
telecopier number and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such Lender.


(e)                                  Reliance
by Administrative Agent, Issuing Lender and Lenders.  The Administrative Agent, the
Issuing Lender and the Lenders shall be entitled to rely and act upon any
notices (including telephonic Borrowing Requests) purportedly given by or on
behalf of the Borrower even if (i) such notices were not made in a manner
specified herein, were incomplete or were not preceded or followed by any other
form of notice specified herein, or (ii) the terms thereof, as understood by
the recipient, varied from any confirmation thereof.  The Borrower shall indemnify the
Administrative Agent, the Issuing Lender, each Lender and the Related Parties
of each of them from all losses, costs, expenses and liabilities resulting from
the reliance by such Person on each notice purportedly given by or on behalf of
the Borrower.  All telephonic notices to
and other telephonic communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.


11.3                           No
Waiver; Cumulative Remedies.


No
failure to exercise and no delay in exercising any right, remedy, power or
privilege under any Loan Document shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, remedy, power or privilege under
any Loan Document preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privileges
under the Loan Documents are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.


11.4                           Survival
of Representations and Warranties.


All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or thereto or in connection herewith
or therewith shall survive the execution and delivery hereof and thereof.  Such representations and warranties have been
or will be relied upon by the Administrative Agent and each Lender, regardless
of any investigation made by the Administrative Agent or any Lender or on their
behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default at the time of the making of any Loan,
and shall continue in full force and effect as long as any Loan or any other
obligation of the Borrower, any Subsidiary Guarantor or any of their respective
Subsidiaries or Affiliates hereunder shall remain unpaid or unsatisfied or any
Letter of Credit shall remain outstanding.


11.5                           Payment
of Expenses and Taxes.


The
Borrower agrees, promptly upon presentation of a statement or invoice therefor,
and whether any Loan is made (a)to pay or reimburse Bank of America,
Administrative Agent and Bank of America in its capacity as Lead 



 69
 









Arranger for all
of their reasonable out-of-pocket costs and expenses reasonably
incurred in connection with the development, preparation, negotiation and
execution of, the Loan Documents, the syndication of the loan transaction
evidenced by this Agreement (whether or not such syndication is completed) and
any amendment, supplement or modification hereto (whether or not executed), any
documents prepared in connection therewith and the consummation of the
transactions contemplated thereby, including, without limitation, the
reasonable fees and disbursements of Special Counsel, (b) to pay or reimburse
each Credit Party for all of its respective reasonable costs and expenses,
including, without limitation, reasonable fees and disbursements of counsel,
reasonably incurred in connection with (i) any enforcement or collection
proceedings resulting from any Event of Default (including, without limitation,
any reasonable costs incurred after the entry of judgment in an attempt to
collect money due in the judgment) or in connection with the negotiation of any
restructuring or “work-out” (whether consummated or not) of the
obligations of the Borrower under any of the Loan Documents and (ii)the
enforcement of this Section, (c) to pay, indemnify, and hold each Credit Party
harmless from and against, any and all recording and filing fees and any and
all liabilities with respect to, or resulting from any delay in paying, 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, or consummation of
any of the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, the Loan
Documents and any such other documents, and (d) to pay, indemnify and hold each
Credit Party and each of their respective officers, directors, employees,
affiliates, agents, controlling persons and attorneys (as used in this Section,
each an “indemnified person”) harmless from and against any and all
other liabilities, obligations, claims, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever (including, without limitation, reasonable counsel fees and
disbursements) with respect to any claim, investigation or proceeding from any
third party relating to this Agreement or the Loan Documents, including the
enforcement and performance of the Loan Documents and the use of the proceeds
of the Loans (all the foregoing, collectively, the “indemnified liabilities”),
whether or not any such indemnified person is a party to this Agreement or the
Loan Documents, and to reimburse each indemnified person for all reasonable
legal and other expenses incurred in connection with investigating or defending
any indemnified liabilities, and, if and to the extent that the foregoing
indemnity may be unenforceable for any reason, the Borrower agrees to make the
maximum payment permitted or not prohibited under applicable law; provided,
however, that the Borrower shall have no obligation hereunder to pay
indemnified liabilities to any Credit Party arising from (A) the gross
negligence or willful misconduct of such Credit Party or (B) disputes solely
between the Credit Parties and which are not related to any act or failure to
act on the part of the Borrower or the failure of the Borrower to perform any
of its obligations under this Agreement or the Loan Documents.


Notwithstanding
the foregoing, the fees and expenses referred to in clause (d) of the preceding
paragraph shall not be payable by the Borrower if (x) any such enforcement
action brought by such Credit Party is dismissed, with prejudice, on the
pleadings or pursuant to a motion made by the Borrower for summary judgment,
and (y) if such Credit Party appeals such dismissal, such dismissal is affirmed
and the time for any further appeals has expired.  The obligations of the Borrower under this
Section shall survive the termination of this Agreement and the Commitments and
the payment of the Notes and all other amounts payable under the Loan
Documents.


11.6                           Lending
Offices.


Each
Lender shall have the right at any time and from time to time to transfer its
Loans to a different office, provided that such Lender shall promptly notify
the Administrative Agent and the Borrower of any such change of office.  Such office shall thereupon become such
Lender’s Domestic Lending Office or LIBOR Lending Office, as the case may be;
provided, however, that no such Lender shall be entitled to receive any greater
amount under Section 2.13, 2.14 or 2.16 as a result of a transfer of any such
Loans to a different office of such Lender than it would be entitled to
immediately prior thereto unless such claim would have arisen even if such
transfer had not occurred.


11.7                           Successors
and Assigns.


(a)                                  Successors
and Assigns 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 permitted
hereby, except that neither the Borrower nor any Subsidiary Guarantor may
assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of the Administrative Agent and each Lender and no
Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an Eligible Assignee in accordance with the provisions
of subsection (b) of this Section, (ii) by way of participation in accordance
with the provisions of 



 70
 









subsection (d) of
this Section, (iii) by way of pledge, assignment or grant of a security
interest subject to the restrictions of subsection (f) of this Section or (iv)
to an SPC in accordance with the provisions of subsection (k) of this Section
(and any other attempted assignment or transfer by any party hereto shall be
null and void).  Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby, Participants to the extent provided in subsection (d) of this
Section and, to the extent expressly contemplated hereby, the Related Parties
of each of the Administrative Agent, the Issuing Lender and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.


(b)                                 Assignments
by Lenders.  Any Lender may at any
time assign to one or more assignees all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Loans (including for purposes of this subsection (b), participations in
the Letter of Credit Exposure and in Swing Line Loans) at the time owing to
it); provided that any such assignment shall be subject to the following
conditions:


(i)                                     Minimum
Amounts.


(A)                              in
the case of an assignment of the entire remaining amount of the assigning
Lender’s Commitment and the Loans at the time owing to it or in the case of an
assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no
minimum amount need be assigned; and


(B)                                in
any case not described in subsection (b)(i)(A) of this Section, the aggregate
amount of the Commitment (which for this purpose includes Loans outstanding
thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent or, if “Trade
Date” is specified in the Assignment and Assumption, as of the Trade Date,
shall not be less than $5,000,000  (or such
amount plus a whole multiple of $1,000,000 in excess thereof)  unless each of the Administrative Agent and, so long as no
Event of Default has occurred and is continuing, the Borrower otherwise
consents (each such consent not to be unreasonably withheld or delayed); provided,
however, that concurrent assignments to members of an Assignee Group and
concurrent assignments from members of an Assignee Group to a single assignee
(or to an assignee and members of its Assignee Group) will be treated as a
single assignment for purposes of determining whether such minimum amount has
been met.


(ii)                                  Proportionate
Amounts.  Each partial assignment
shall be made as an assignment of a proportionate part of all the assigning
Lender’s rights and obligations under this Agreement with respect to the Loans
or the Commitment assigned, except that this clause (ii) shall not apply to the
Swing Loan Lender’s rights and obligations in respect of Swing Line Loans;


(iii)                               Required
Consents.  No consent shall be
required for any assignment except to the extent required by subsection
(b)(i)(B) of this Section and, in addition:


(A)                              the
consent of the Borrower (such consent not to be unreasonably withheld or
delayed; provided, that the parties hereto acknowledge and agree that the
Borrower has a reasonable basis for rejecting a proposed Lender that is a
Public Lender as a result of the potential difficulties that could arise in the
connection with such Public Lender’s participation in this Agreement, but that
this provision shall not prohibit the Borrower’s approval of such a Public
Lender or the assignment of rights and obligations hereunder to a Public Lender
under circumstances where the Borrower’s consent is not otherwise required)
shall be required unless (1) an Event of Default has occurred and is continuing
at the time of such assignment, (2) such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund, or (3) such assignment is entered
into in connection with the syndication of the Loans and Commitments pursuant
to the terms and conditions of that certain commitment letter among Bank of
America, BAS and Borrower;



 71















 


(B)                                the
consent of the Administrative Agent (such consent not to be unreasonably
withheld or delayed) shall be required if such assignment is to a Person that
is not a Lender, an Affiliate of such Lender or an Approved Fund with respect
to such Lender;


(C)                                the
consent of the Issuing Lender (such consent not to be unreasonably withheld or
delayed) shall be required for any assignment that increases the obligation of
the assignee to participate in exposure under one or more Letters of Credit
(whether or not then outstanding); and


(D)                               the
consent of the Swing Loan Lender (such consent not to be unreasonably withheld
or delayed) shall be required for any assignment.


(iv)                              Assignment
and Assumption.  The parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Assumption, together with a processing and recordation fee in the amount of
$3,500; provided, however, that the Administrative Agent may, in
its sole discretion, elect to waive such processing and recordation fee in the
case of any assignment.  The assignee, if
it is not a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.


(v)                                 No
Assignment to Borrower.  No such
assignment shall be made to the Borrower or any of the Borrower’s Affiliates or
Subsidiaries.


(vi)                              No
Assignment to Natural Persons.  No
such assignment shall be made to a natural person.


In
connection with such assignment, the assignor may assign all or any portion of
its Competitive Advance Note and the Competitive Advances at the time owing to
it, which, if so assigned, shall be assigned in such proportion as the assignor
and assignee agree, but in no event shall the assignee acquire an interest in
the Competitive Advances of the assignor of less than $5,000,000.00; provided,
however, that in the event such assignor assigns all of its Commitment, such
assignor shall assign all of its Competitive Advance Note and Competitive
Advances, if any, in connection therewith. 
In the event that a portion of a Competitive Advance is assigned to such
assignee, the Borrower shall upon the request of such assignee execute and
deliver to such assignee a Competitive Advance Note, dated the effective date
of such assignment and which shall otherwise be in substantially the form of
the Competitive Advance Notes.


Subject
to acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c) of this Section, from and after the effective date specified in
each Assignment and Assumption, the assignee thereunder shall be a party to this
Agreement and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering
all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto) but shall continue to be entitled to
the benefits of Sections 2.11, 2.13, 2.14, 11.5 and 11.12 with respect to facts
and circumstances occurring prior to the effective date of such
assignment.  Upon request, the Borrower
(at its expense) shall execute and deliver a Note (i) to the assignee Lender
and (ii) to the assignor Lender if such assignment is less than such assignor
Lender’s entire commitment.  Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with subsection (d) of this Section.


(c)                                  Register.  The Administrative Agent, acting solely for
this purpose as an agent of the Borrower, shall maintain at the Administrative
Agent’s Office a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans and Letter of Credit
Exposure owing to, each Lender pursuant to the terms hereof from time to time
(the “Register”).  The entries in the
Register shall be conclusive, in the absence of manifest error, and the
Borrower, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary.  The Register shall be
available for inspection by each of the Borrower and the Issuing Lender at any
reasonable time and from time to time upon reasonable prior notice.  In addition, at any time that a request for a
consent for a material or substantive change to the Loan Documents is pending,
any Lender wishing to consult with 



 72
 









other Lenders in
connection therewith may request and receive from the Administrative Agent a
copy of the Register.


(d)                                 Participations.  Any Lender may at any time, without the
consent of, or notice to, the Borrower, the Administrative Agent or any other
party hereto, sell participations to any Person (other than a natural person or
the Borrower, any Subsidiary Guarantor or any of the Borrower’s or any
Subsidiary Guarantor’s Affiliates or Subsidiaries) (each, a “Participant”)
in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans
(including such Lender’s participations and subparticipations in any Letter of
Credit Exposure and/or Swing Loans) owing to it); provided that (i) such
Lender’s obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative
Agent, the Lenders and the Issuing Lender shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement.


Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant,
agree to any amendment, waiver or other modification described in the first
proviso to Section 11.1 that affects such Participant.  Subject to subsection (e) of this Section,
the Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.11, 2.13 and 2.14 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to subsection (b) of this Section.  To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 11.10 as though
it were a Lender, provided such Participant agrees to be subject to
Sections 2.3(d) and (f) as though it were a Lender.


(e)                                  Limitations
upon Participant Rights.  A Participant
shall not be entitled to receive any greater payment under Section 2.11
or 2.13 than the applicable Lender would have been entitled to receive
with respect to the participation sold to such Participant, unless the sale of
the participation to such Participant is made with the Borrower’s prior written
consent.  A Participant that would be a
foreign corporation (as referred to in Section 2.11(b)) if it were a Lender
shall not be entitled to the benefits of Section 2.11 unless the
Borrower is notified of the participation sold to such Participant and such
Participant, for the benefit of the Borrower, complies with Section 2.11(b)
as though it were a Lender.


(f)                                    Certain
Pledges.  Any Lender may at any time
pledge or assign a security interest in all or any portion of its rights under
this Agreement (including under its Note) to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank; provided that no such pledge or assignment shall release such Lender
from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.


(g)                                 Electronic
Execution of Assignments.  The words “execution,”
“signed,” “signature,” and words of like import in any Assignment and Assumption
shall be deemed to include electronic signatures or the keeping of records in
electronic form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records
Act, or any other similar state laws based on the Uniform Electronic
Transactions Act.


(h)                                 Resignation
as Issuing Lender or Swing Loan Lender after Assignment.  Notwithstanding anything to the contrary
contained herein, if at any time Bank of America assigns all of its Commitment
and Loans pursuant to subsection (b) above, Bank of America may, (i) upon 30
days’ notice to the Borrower and the Lenders, resign as Issuing Lender and/or
(ii) upon 30 days’ notice to the Borrower, resign as Swing Loan Lender.  In the event of any such resignation as
Issuing Lender or Swing Loan Lender, the Borrower shall be entitled to appoint
from among the Lenders a successor Issuing Lender or Swing Loan Lender
hereunder subject to the acceptance of such appointed Lender in writing,
provided, however, in the event that no Lender shall agree to accept such
appointment, then the Person serving as Administrative Agent following such
assignment by Bank of America shall serve as the Issuing Lender and/or Swing
Lender; provided  further, however, that no failure by the
Borrower to appoint, or Administrative Agent to accept, any such successor
shall affect the resignation of Bank of America as Issuing Lender or Swing Loan
Lender, as the case may be.  If Bank of
America resigns as Issuing Lender, it shall 



 73
 









retain all the rights
and obligations of the Issuing Lender hereunder with respect to all Letters of
Credit outstanding as of the effective date of its resignation as Issuing
Lender and all Letters of Credit Exposure with respect thereto (including the
right to require the Lenders to make Prime Rate Loans or fund risk
participations or subparticipations in unreimbursed amounts pursuant to Sections
2.5(g) and 2.5(h)).  If Bank
of America resigns as Swing Loan Lender, it shall retain all the rights of the
Swing Loan Lender provided for hereunder with respect to Swing Loans made by it
and outstanding as of the effective date of such resignation, including the
right to require the Lenders to make Prime Rate Loans or fund risk
participations in outstanding Swing Loans pursuant to Sections 2.1(A)(d)
and 2.1(A)(e).


(i)                                     Resignation
by Administrative Agent.  In the
event that any Lender acting as Administrative Agent or any successor Lender
acting as Administrative Agent shall at any time hold a Commitment of less than
$10,000,000.00, then such Administrative Agent shall promptly provide written
notice thereof to the Lenders, and the Required Lenders shall have the right,
to be exercised within fifteen (15) days of delivery of such notice by such
Administrative Agent, to elect to remove such Administrative Agent as
Administrative Agent and replace such Administrative Agent under the Loan
Documents, subject to the terms of Section 10.8 (including, without limitation,
the consultation with, and approval from, the Borrower, to the extent required
under Section 10.8.


(j)                                     Resignation
by other Agents.  In the event that a
Lender that is also a Lead Arranger or Book Manager assigns all of its
Commitment, contemporaneously with the effectiveness of such assignment, such
Lender shall no longer serve in such capacity as Lead Arranger or Book Manager,
as applicable.


(k)                                  Special
Purpose Funding Vehicles. 
Notwithstanding anything to the contrary contained herein, any Lender (a
“Granting Lender”) may grant to a special purpose funding vehicle identified as
such in writing from time to time by such Granting Lender to the Administrative
Agent and the Borrower (an “SPC”) the option to provide all or any part of any
Loan that such Granting Lender would otherwise be obligated to make pursuant to
this Agreement; provided that (i) nothing herein shall constitute a
commitment by any SPC to fund any Loan, and (ii) if an SPC elects not to
exercise such option or otherwise fails to make all or any part of such Loan,
such Granting Lender shall be obligated to make such Loan pursuant to the terms
hereof or, if it fails to do so, to make such payment to the Administrative
Agent as is required pursuant to the terms of this Agreement.  Each party hereto hereby agrees that (i)
neither the grant to any SPC nor the exercise by any SPC of such option shall
increase the costs or expenses or otherwise increase or change the obligations
of the Borrower under this Agreement (including its obligations under Section
2.11 or 2.13), (ii) no SPC shall be liable for any indemnity or similar payment
obligation under this Agreement for which a Lender would be liable, and (iii) a
Granting Lender shall for all purposes, including the approval of any
amendment, waiver or other modification of any provision of any Loan Document,
remain the lender of record hereunder. 
The making of a Loan by an SPC hereunder shall utilize the Commitment of
the applicable Granting Lender to the same extent, and as if, such Loan were
made by such Granting Lender.  In
furtherance of the foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the date that
is one year and one day after the payment in full of all outstanding commercial
paper or other senior debt of any SPC, it will not institute against, or join
any other Person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency, or liquidation proceeding under the
laws of the United States or any State thereof. 
Notwithstanding anything to the contrary contained herein, any SPC may
(i) with notice to, but without prior consent of, the Borrower and the
Administrative Agent and with the payment of a processing fee in the amount of
$2,500, assign all or any portion of its right to receive payment with respect
to any Loan to the applicable Granting Lender and (ii) disclose on a
confidential basis any non-public information relating to its funding of Loans
to any rating agency, commercial paper dealer or provider of any surety or
Guarantee or credit or liquidity enhancement to such SPC.


11.8                           [Intentionally Omitted].


11.9                           Counterparts;
Integration; Effectiveness.


This
Agreement may be executed in counterparts (and by different parties hereto in
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract.  This Agreement and the other Loan Documents
constitute the entire contract among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral
or written, relating to the subject matter hereof.  Except as provided in Article V, this
Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts 



 74
 









hereof that, when
taken together, bear the signatures of each of the other parties hereto.  Delivery of an executed counterpart of a
signature page of this Agreement by telecopy shall be effective as delivery of
a manually executed counterpart of this Agreement.  A telecopied counterpart of any Loan Document
or to any document evidencing, and of any an amendment, modification, consent
or waiver to or of any Loan Document shall be deemed to be an originally executed
counterpart.  A set of the copies of the
Loan Documents signed by all the parties thereto shall be deposited with each
of the Borrower and the Administrative Agent. 
Any party to a Loan Document may rely upon the signatures of any other
party thereto which are transmitted by telecopier or other electronic means to
the same extent as if originally signed.


11.10                     Adjustments; Set-off.


(a)                                  If
any Lender, including Swing Loan Lender (a “Benefited Lender”), shall at any
time receive any payment of all or any part of its Loans or participation or
subparticipation in payments made by the Issuing Lender pursuant to a Letter of
Credit or Swing Loans, or interest thereon, or receive any collateral in
respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in Section 9.1(h)
or (i), or otherwise) in a greater proportion than any such payment to and
collateral received by any other Lender in respect of such other Lender’s Loans
or participation or subparticipation in payments made by the Issuing Lender
pursuant to a Letter of Credit or Swing Loans, or interest thereon, such
Benefited Lender shall purchase for cash from each of the other Lenders such
portion of each such other Lender’s Loans and participation and
subparticipation in payments made by the Issuing Lender pursuant to a Letter of
Credit or Swing Loans, and shall provide each of such other Lenders with the
benefits of any such collateral, or the proceeds thereof, as shall be necessary
to cause such Benefited Lender to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Lenders, provided, however,
that if all or any portion of such excess payment or benefits is thereafter
recovered from such Benefited Lender, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such recovery, but
without interest.  The Borrower agrees
that each Lender so purchasing a portion of another Lender’s Loans or
participations or subparticipations in payments by the Issuing Lender pursuant
to a Letter of Credit or Swing Loans may exercise all rights of payment
(including, without limitation, rights of set-off, to the extent not
prohibited by law) with respect to such portion as fully as if such Lender were
the direct holder of such portion.


(b)                                 In
addition to any rights and remedies of the Lenders provided by law, upon the
occurrence of an Event of Default and the acceleration of the obligations owing
in connection with the Loan Documents, or at any time upon the occurrence and
during the continuance of an Event of Default under Section 9.1(a) or (b), each
Lender shall have the right, without prior notice to the Borrower, any such
notice being expressly waived by the Borrower to the extent not prohibited by
applicable law, to set-off and apply against any indebtedness, whether
matured or unmatured, of the Borrower to such Lender, any amount owing from
such Lender to the Borrower, at, or at any time after, the happening of any of
the above-mentioned events.  To the
extent not prohibited by applicable law, the aforesaid right of set-off
may be exercised by such Lender against the Borrower or against any trustee in
bankruptcy, custodian, debtor in possession, assignee for the benefit of
creditors, receiver, or execution, judgment or attachment creditor of the
Borrower, or against anyone else claiming through or against the Borrower or
such trustee in bankruptcy, custodian, debtor in possession, assignee for the
benefit of creditors, receivers, or execution, judgment or attachment creditor,
notwithstanding the fact that such right of set-off shall not have been
exercised by such Lender prior to the making, filing or issuance, or service
upon such Lender of, or of notice of, any such petition, assignment for the
benefit of creditors, appointment or application for the appointment of a
receiver, or issuance of execution, subpoena, order or warrant.  Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such set-off and
application made by such Lender, provided that the failure to give such notice
shall not affect the validity of such set-off and application.


11.11                     Lenders’ Representations.


Each
Lender represents to the Administrative Agent that, in acquiring its Note, it
is acquiring the same for its own account for the purpose of investment and not
with a view to selling the same in connection with any distribution thereof,
provided that the disposition of each Lender’s own Property shall at all times
be and remain within its control.



 75
 









11.12                     Indemnity.


The
Borrower agrees to indemnify and hold harmless each Credit Party and its
affiliates, directors, officers, employees, affiliates, agents, controlling
persons and attorneys (each an “Indemnified Person”) from and against
any loss, reasonable cost, liability, damage or reasonable expense (including
the reasonable fees and disbursements of counsel of such Indemnified Person,
including all local counsel hired by any such counsel) incurred by such
Indemnified Person in investigating, preparing for, defending against, or
providing evidence, producing documents or taking any other action in respect
of, any commenced or threatened litigation, administrative proceeding or
investigation under any federal securities or tax laws or any other statute of
any jurisdiction, or any regulation, or at common law or otherwise, which is
alleged to arise out of or is based upon: 
(a) any untrue statement of any material fact by the Borrower in any
document or schedule executed or filed with any Governmental Authority by or on
behalf of the Borrower; (b) any omission to state any material fact required to
be stated in such document or schedule, or necessary to make the statements
made therein, in light of the circumstances under which made, not misleading;
or (c) any acts, practices or omissions of the Borrower or its agents relating
to the use of the proceeds of any or all borrowings made by the Borrower which
are alleged to be in violation of Section 2.15, or in violation of any federal
securities or tax laws or of any other statute, regulation or other law of any
jurisdiction applicable thereto, whether or not such Indemnified Person is a
party thereto.  The indemnity set forth
herein shall be in addition to any other obligations, liabilities or other
indemnifications of the Borrower to each Indemnified Person under the Loan
Documents or at common law or otherwise, and shall survive any termination of
the Loan Documents, the expiration of the Commitments and the payment of all
indebtedness of the Borrower under the Loan Documents, provided that the
Borrower shall have no obligation under this Section to an Indemnified Person
with respect to any of the foregoing to the extent found in a final judgment of
a court having jurisdiction to have resulted from the gross negligence or willful
misconduct of such Indemnified Person or arising solely from claims between one
such Indemnified Person and another such Indemnified Person.


11.13                     Governing Law.


The
Loan Documents and the rights and obligations of the parties thereunder shall
be governed by, and construed and interpreted in accordance with, the internal
laws of the State of New York, without regard to principles of conflict of
laws.


11.14                     Headings Descriptive.


Section
headings have been inserted in the Loan Documents for convenience only and
shall not be construed to be a part thereof.


11.15                     Severability.


If
any provision of this Agreement or the other Loan Documents is held to be
illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other Loan
Documents shall not be affected or impaired thereby and (b) the parties shall
endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable
provisions.  The invalidity of a
provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.


11.16                     Confidential Information.


Each
of the Administrative Agent, the Lenders, the Swing Loan Lender and the Issuing
Lender agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates’
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and must agree (or, by acceptance of such materials, be deemed to
have agreed) to keep such Information confidential); (b) to the extent
requested by any regulatory authority; (c) to the extent required by applicable
laws or regulations or by any subpoena or similar legal process; (d) to any
other party to this Agreement that is not a Public Lender; (e) in connection
with the exercise of any remedies hereunder or any suit, action or proceeding
relating to this Agreement or the enforcement of rights hereunder; (f) subject to
an agreement containing 



 76
 









provisions
substantially the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
right or obligations under this Agreement or (ii) any direct or indirect
contractual counterparty or prospective contractual counterparty (or such
contractual counterparty’s or prospective contractual counterparty’s
professional advisor) to any credit derivative transaction relating to
obligations of the Borrower or its Subsidiaries; (g) with the consent of the
Borrower; (h) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section (or an agreement executed
pursuant to this Section) or (ii) becomes available to the Administrative
Agent, any of the Lenders, the Swing Loan Lender or the Issuing Lender on a
nonconfidential basis from a source other than the Borrower or its
Subsidiaries; or (i) to the National Association of Insurance Commissioners or
any other similar organization or any nationally recognized rating agency that
requires access to information about a Lender’s or its Affiliates’ investment
portfolio in connection with ratings issued with respect to such Lender or its
Affiliates.  In addition, the Administrative
Agent, any of the Lenders, the Swing Loan Lender or the Issuing Lender may
disclose the existence of this Agreement and information about this Agreement
to market date collectors, similar service providers to the lending industry,
and service providers to the Administrative Agent, any of the Lenders, the
Swing Loan Lender or the Issuing Lender in connection with the administration
and management of this Agreement, the other Loan Documents and the
Commitments.  For purposes of this
Section, “Information” means all information received from the Borrower or any
Subsidiary relating to the Borrower or any Subsidiary or any of their
respective businesses, other than any such information that is available to the
Administrative Agent, any Lender, the Swing Loan Lender or the Issuing Lender
on a nonconfidential basis prior to disclosure by the Borrower or any
Subsidiary.  Any Person required to
maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.


11.17                     Consent to Jurisdiction.


The
Borrower and each of the Credit Parties hereby irrevocably submit to the
jurisdiction of any New York State or Federal court sitting in the City of New
York over any suit, action or proceeding arising out of or relating to the Loan
Documents.  The Borrower and each of the
Credit Parties hereby irrevocably waive, to the fullest extent permitted or not
prohibited by law, any objection which any of them may now or hereafter have to
the laying of the venue of any such suit, action or proceeding brought in such
a court and any claim that any such suit, action or proceeding brought in such
a court has been brought in an inconvenient forum.  The parties intend that Section 5-1402 of the
New York General Obligations Law shall apply to this Section 11.17.


11.18                     Service of Process.


The
Borrower hereby agrees that process may be served against it in any suit,
action or proceeding referred to in Section 11.17 by sending the same by first
class mail, return receipt requested or by overnight courier service, to the
address of the Borrower specified pursuant to Section 11.2 or in the applicable
Loan Document executed by the Borrower. 
The Borrower hereby agrees that any such service (i) shall be deemed in
every respect effective service of process upon it in any such suit, action, or
proceeding, and (ii) shall to the fullest extent enforceable by law, be taken
and held to be valid personal service upon and personal delivery to it.


11.19                     No Limitation on Service or
Suit.


Nothing
in the Loan Documents or any modification, waiver, consent or amendment thereto
shall affect the right of the Administrative Agent or any Lender to serve
process in any manner permitted by law or limit the right of the Administrative
Agent or any Lender to bring proceedings against the Borrower in the courts of
any jurisdiction or jurisdictions in which the Borrower may be served.


11.20                     WAIVER OF TRIAL BY JURY.


THE
ADMINISTRATIVE AGENT, THE LENDERS AND THE BORROWER HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION
WITH THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREIN.  FURTHER, THE BORROWER HEREBY CERTIFIES THAT
NO REPRESENTATIVE OR AGENT OF THE ADMINISTRATIVE AGENT, THE LENDERS, OR COUNSEL
TO THE ADMINISTRATIVE AGENT OR THE LENDERS, HAS 



 77
 









REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT THE ADMINISTRATIVE AGENT OR THE LENDERS WOULD NOT,
IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY
TRIAL PROVISION.  THE BORROWER
ACKNOWLEDGES THAT THE ADMINISTRATIVE AGENT AND THE LENDERS HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, INTER ALIA, THE PROVISIONS OF THIS SECTION.


11.21                     Termination.


After
the termination of this Agreement in accordance with its terms, without any
extension thereof, and the payment in full of all obligations of the Borrower
under the Loan Documents (including without limitation, all principal,
interest, Facility Fees and other amounts payable hereunder and under the
Notes), the obligations of the Borrower hereunder (other than those which are
stated herein to survive any termination of this Agreement) shall terminate,
except that the foregoing shall not apply with respect to any claim, action or
proceeding made or brought under any other provision of the Loan Documents prior
to such termination or payment.  At the
request of the Borrower, each Lender whose obligations under the Notes have
been fully paid shall promptly return to the Borrower its Note marked “paid” or
shall deliver other evidence that such Lender has received full payment of such
obligations or, in the case of any Lender that is not able to return such Note,
such Lender shall deliver a lost note affidavit and confirmation of payment
with respect to such Note in form and substance reasonably acceptable to the
Borrower.


11.22                     Replacement Notes.


Upon
receipt of evidence reasonably satisfactory to the Borrower of the loss, theft,
destruction or mutilation of any Note, and in the case of any such loss, theft
or destruction, upon delivery by the relevant Lender of an indemnity agreement
reasonably satisfactory to the Borrower or, in the case of any such mutilation,
upon surrender and cancellation of the applicable Note, the Borrower will
execute and deliver, in lieu thereof, a replacement Note, identical in form and
substance to the applicable Note and dated as of the date of the applicable
Note and upon such execution and delivery all references in the Loan Documents
to such Note shall be deemed to refer to such replacement Note.


11.23                     USA
Patriot Act Notice.


Each
Lender that is subject to the Act (as hereinafter defined) and the
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Borrower that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”),
it is required to obtain, verify and record information that identifies the
Borrower, which information includes the name and address of the Borrower and
other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrower in accordance with the Act.


11.24                     Replacement
of Lenders.


If
any Lender requests compensation under Section 2.13, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.11, or if any
Lender is a Defaulting Lender or in the case of a refusal by a Lender to
consent to a proposed change, waiver, discharge or termination with respect to
this Agreement or any other Loan Document that has been approved by the
Required Lenders (as determined prior to any removal of such Lender in
connection with this Section 11.24), then the Borrower may, at its sole expense
and effort, upon notice to such Lender and the Administrative Agent, require
such Lender to assign and delegate, without recourse (in accordance with and
subject to the restrictions and other requirements contained in, and consents
required by, Section 11.7), all of its interests, rights and obligations under
this Agreement and the related Loan Documents to an assignee that shall assume
such obligations (which assignee may be, but is not required to be, another
Lender, if a Lender accepts such assignment), provided that:


(a)                                  the
Borrower shall have paid to the Administrative Agent the assignment fee
specified in Section 11.7;


(b)                                 such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder and under the other Loan 



 78
 









Documents
(including any amounts under Section 2.14) from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts);


(c)                                  in
the case of any such assignment resulting from a claim for compensation under
Section 2.13 or payments required to be made pursuant to Section 2.11, such
assignment will result in a reduction in such compensation or payments
thereafter;


(d)                                 such
assignment does not conflict with applicable Laws; and


(e)                                  from
and after the effective date of such assignment the assigning Lender shall be
released from its obligations under this Agreement (and shall cease to be a
party hereto) but shall continue to be entitled to the benefits of Sections
2.11, 2.13, 2.14, 11.5 and 11.12 with respect to facts and circumstances
occurring prior to the effective date of such assignment.


A
Lender shall not be required to make any such assignment or delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply.


11.25                     No
Advisory or Fiduciary Relationships.


In
connection with all aspects of each transaction contemplated hereby, each of
the Borrower and each Subsidiary Guarantor acknowledges and agrees, and acknowledges its Affiliates’
understanding (to the extent of Borrower’s or such Subsidiary Guarantor’s
interest in such Affiliates), that: (a) the credit facility provided for hereunder and
any related arranging or other services in connection therewith (including in
connection with any amendment, waiver or other modification hereof or of any
other Loan Document) are an arm’s-length commercial transaction between the
Borrower, each Subsidiary
Guarantor and their respective
Affiliates, on the one hand, and the Administrative Agent, the Lenders and BAS, on the other hand, and each
of the Borrower and each
Subsidiary Guarantor is capable of evaluating and understanding and understands
and accepts the terms, risks and conditions of the transactions contemplated
hereby and by the other Loan Documents (including any amendment, waiver or
other modification hereof or thereof); (b) in connection with the process
leading to such transaction, the Administrative Agent, each Lender and BAS each is and has been acting
solely as a principal and is not the financial advisor, agent or fiduciary, for
the Borrower, any Subsidiary Guarantor
or any of their respective
Affiliates, stockholders, creditors or employees or any other Person; (c)
neither the Administrative Agent nor any Lender nor BAS has assumed or will assume an advisory, agency or
fiduciary responsibility in favor of the Borrower or any Subsidiary Guarantor with respect to any of the
transactions contemplated hereby or the process leading thereto, including with
respect to any amendment, waiver or other modification hereof or of any other
Loan Document (irrespective of whether the Administrative Agent, any Lender or BAS has advised or is currently
advising the Borrower, any Subsidiary
Guarantor or any of their
respective Affiliates on other matters) and neither the Administrative
Agent nor any Lender nor BAS has
any obligation to the Borrower, any
Subsidiary Guarantor or any of their
respective Affiliates with respect to the transactions contemplated
hereby except those obligations expressly set forth herein and in the other
Loan Documents; (d) the Administrative Agent, the Lenders and BAS and their respective
Affiliates may be engaged in a broad range of transactions that involve
interests that differ from those of the Borrower, the Subsidiary Guarantors and their respective Affiliates, and neither the Administrative Agent
nor any Lender nor BAS has any
obligation to disclose any of such interests by virtue of any advisory, agency
or fiduciary relationship; and (e) the Administrative Agent, the Lenders and BAS have not provided and will not
provide any legal, accounting, regulatory or tax advice with respect to any of
the transactions contemplated hereby (including any amendment, waiver or other
modification hereof or of any other Loan Document) and each of the Borrower and each of the Subsidiary Guarantors
has consulted its own legal, accounting, regulatory and tax advisors to the
extent it has deemed appropriate.  Each of the Borrower and each of the Subsidiary Guarantors
hereby waives and releases, to the fullest extent permitted by law, any claims
that it may have against the Administrative Agent, the Lenders and BAS with respect to any breach or
alleged breach of agency or fiduciary duty.


[SIGNATURES
COMMENCE ON FOLLOWING PAGE]



 79
 









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


	
  

  	
  SUPER INTERMEDIATECO LLC, a Maryland limited 

  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Andrew Scott

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Andrew Scott

  
	
   

  	
   

  	
  Title:

  	
  President

  
						



 



 80
 









 


	
  

  	
  BANK OF AMERICA, N.A., a national banking
  association, 

  individually and as Administrative Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
     /s/ Mark A. Mokelke

  	
   

  
	
   

  	
   Name:

  	
  Mark A. Mokelke

  
	
   

  	
   Title:

  	
  Vice President

  
					



 


Bank of America, N.A.


Agency Management
- East


101 North Tryon Street, 15th
Floor


NC1-001-15-14


Charlotte, NC 28255


Attention:  Kimberly D. Williams


Telecopy:             (704)
409-0650


and


Bank of America, N.A.

231 South LaSalle Street, 10th Floor

Chicago, Illinois 60697

Attn:  Mark A. Mokelke

Telecopy:             (312)
974-4970



 81