exv10w59



 





Exhibit 10.59




 

 






AMENDED AND RESTATED REVOLVING LOAN AGREEMENT




dated as of December 19, 2006




between




BANK OF AMERICA, N.A.,

as a Lender and Arranger

(“Lender”),




BANK OF AMERICA, N.A.,

as Administrative Agent

(“Administrative Agent”)




and




RD ABINGTON ASSOCIATES LIMITED PARTNERSHIP (“RD Abington”),

ACADIA TOWN LINE, LLC (“Acadia Town Line”),

RD METHUEN ASSOCIATES LIMITED PARTNERSHIP (“RD Methuen”),

RD ABSECON ASSOCIATES, L.P. (“RD Absecon”),

RD BLOOMFIELD ASSOCIATES, LIMITED PARTNERSHIP (“RD Bloomfield”),

RD HOBSON ASSOCIATES, L.P. (“RD Hobson”),

and

RD VILLAGE ASSOCIATES LIMITED PARTNERSHIP (“RD Village”),

as Borrowers




(RD Abington, Acadia Town Line, RD Methuen, RD Absecon, RD Bloomfield,

RD Hobson and RD Village, individually and collectively, as the context requires,

“Borrower”)




 

 






 









 












     THIS AMENDED AND RESTATED REVOLVING LOAN AGREEMENT (“this Agreement”) dated as of December 19,
2006 by and among RD ABINGTON ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership (“RD
Abington”), ACADIA TOWN LINE, LLC, a Connecticut limited liability company (“Acadia Town Line”), RD
METHUEN ASSOCIATES LIMITED PARTNERSHIP, a Massachusetts limited partnership (“RD Methuen”), RD
ABSECON ASSOCIATES, L.P., a Delaware limited partnership (“RD Absecon”), RD BLOOMFIELD ASSOCIATES,
LIMITED PARTNERSHIP, a Delaware limited partnership (“RD Bloomfield”), RD HOBSON ASSOCIATES, L.P.,
a Delaware limited partnership (“RD Hobson”) and RD VILLAGE ASSOCIATES LIMITED PARTNERSHIP, a
Delaware limited partnership (“RD Village”; RD Abington, Acadia Town Line, RD Methuen, RD Absecon,
RD Bloomfield, RD Hobson and RD Village, collectively and individually, as the context requires,
“Borrower”) and BANK OF AMERICA, N.A. (in its individual capacity and not as Administrative Agent,
“BofA”; BofA and each other lender who may become a Lender pursuant to Section 8.07, each, a
“Lender” and collectively, “Lenders”) and BANK OF AMERICA, N.A., as Administrative Agent for
Lenders (together with its successors in such capacity, “Administrative Agent”).



     WHEREAS, pursuant to that certain Revolving Loan Agreement dated as of May 26, 2005 (the
“Original Agreement”) by and among RD Absecon, RD Bloomfield, RD Hobson and RD Village
(collectively, the “Original Borrowers”) and RD Woonsocket Associates Limited Partnership (“RD
Woonsocket”), Fleet National Bank, a Bank of America company (“Fleet”) and The Bank of China, New
York Branch (“Bank of China”), Fleet and Bank of China made a loan (the “Original Loan”) to
Original Borrowers and RD Woonsocket in the original principal amount of up to $65,000,000;



     WHEREAS, on the date hereof, after giving effect to an Assignment and Assumption from Bank of
China to BofA, BofA is the only Lender under the Original Agreement;



     WHEREAS, pursuant to that certain Amended and Restated Term Loan Agreement dated as of June
30, 2004 (the “Term Agreement”) by and among Fleet, Heathcote Associates, L.P. (“Acadia
Heathcote”), RD Branch Associates, L.P. (“RD Branch”), Acadia Town Line, RD Abington, and RD
Methuen (collectively, the “Term Borrowers”), Lender made a loan (the “Term Loan”) to Term
Borrowers in the original principal amount of up to $45,900,000;



     WHEREAS, the property owned by RD Woonsocket has been, or will contemporaneously herewith be,
released from the liens of the mortgages securing the Original Loan;



     WHEREAS, the property owned by Acadia Heathcote has been released from the liens of the
mortgages securing the Term Loan;



     WHEREAS, BofA is the successor by merger to Fleet;



 









 





     WHEREAS, the portion of the Term Loan which is secured by the property owned by RD Branch will
contemporaneously herewith be severed pursuant to a certain Note Modification and Severance
Agreement dated as of the date hereof (the “Severance Agreement”) by and between the Term Borrowers
and BofA so that such portion of the Term Loan is evidenced by a severed note and secured by a
severed mortgage upon which the other Term Borrowers are not obligors;



     WHEREAS, RD Woonsocket, Acadia Heathcote and RD Branch shall, as of the date hereof, no longer
have any of their property encumbered as collateral for either the Term Loan or the Original Loan,
therefore such entities have requested that they be released from liability for the future
repayment thereof and Lenders have agreed to so release such entities;



     WHEREAS, as of the date hereof the outstanding principal balance of the Original Loan is
$22,000,000 and the outstanding principal balance of the Term Loan, after giving effect to the
Severance Agreement and excluding the portion thereof for which solely RD Branch shall hereafter be
liable, is $18,584,535 and, in addition, the Existing Letters of Credit (as hereinafter defined) in
the aggregate amount of $56,600 have been issued and are outstanding; and



     WHEREAS, Borrower has requested, and Lenders and Administrative Agent have agreed, subject to
the terms and conditions hereof, to consolidate the Original Loan and the Term Loan into a single
loan (defined herein as the Loan), increase the maximum principal amount thereof, extend the term
thereof and to consolidate, amend and restate the terms of the Original Agreement, the notes
executed pursuant to the Original Agreement (the “Original Notes”), the Term Agreement, the note
executed pursuant to the Term Agreement (the “Term Note”) on the terms and conditions set forth
herein and Lenders are prepared to do so on the terms and conditions hereinafter set forth.



     Borrower desires that Lenders extend credit as provided herein, and Lenders are prepared to
extend such credit. Accordingly, Borrower, Administrative Agent and each Lender agree as follows:



     NOW, THEREFORE, in consideration of the mutual promises and agreements herein contained,
Borrower, Administrative Agent and Lenders hereby agree as follows:



ARTICLE I




DEFINITIONS AND RULES OF CONSTRUCTION




     Section 1.01. Definitions. The following terms, as used in this Agreement, shall
have the following meanings:



“Abington/PA Property” — The fee interest in real property located on Old York Road in
Abington, Pennsylvania owned by RD Abington.



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“Absecon/NJ Property” — The fee interest in real property located at Whitehorse Pike in
Absecon, New Jersey owned by RD Absecon.



“Additional Costs” — Has the meaning specified in Section 3.01.



“Additional Interest”  — Any and all sums that shall become due and payable by Borrower
under the Hedging Agreement.



“Additional Advance” — Has the meaning set forth in Section 4.02 of this Agreement.



“Administration Fee” — Has the meaning specified in Section 6.03.



“Administrative Agent” — Has the meaning specified in the preamble.



“Administrative Agent’s Counsel” — Schiff Hardin LLP, 623 Fifth Avenue, 28th Floor, New
York, New York 10022.



“Administrative Agent’s Office” — Administrative Agent’s office located as set forth on
its signature page hereof, or such other address in the United States as Administrative Agent
may designate by notice to Borrower and Lenders.



“Affiliate” — With respect to any Person (the “first Person”), any other Person (1) which
directly or indirectly controls, or is controlled by, or is under common control with the
first Person or (2) 10% or more of the beneficial interest in which is directly or indirectly
owned or held by the first Person. The term “control” means the possession, directly or
indirectly, of the power, alone, to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by contract, or
otherwise.



“Anchors” — Shall mean, with respect to each Property:




     (i) American Stores Properties, Inc., a wholly owned subsidiary of Albertson’s, Inc.
(a/k/a Acme), Island Gym/Fitness and Eckerd Corporation with respect to the Absecon/NJ
Property;




     (ii) HomeGoods, Inc., Marshalls of MA, Inc., The TJX Companies, Inc., PetCo and
OfficeMax North America, Inc. (f/k/a OfficeMax, Inc.) with respect to the Bloomfield/MI
Property;




     (iii) Bobak Enterprises and Coldwell Banker, with respect to the Hobson/IL Property;




     (iv) Stop & Shop and Town Line Diner with respect to the Town Line/CT Property;




     (v) Wal-Mart and Demoulas Market, with respect to the Methuen/MA Property; and



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     (vi) T.J. Maxx, with respect to the Abington/PA Property.



“Applicable Lending Office” — For each Lender and for the portions of the outstanding
principal balance under its Note bearing interest at the Prime Based Rate or LIBO Based Rate,
as applicable, the lending office of such Lender (or of an Affiliate of such Lender)
designated as such on its signature page hereof or in the applicable Assignment and Assumption
Agreement, or such other office of such Lender (or of an Affiliate of such Lender) as such
Lender may from time to time specify to Administrative Agent and Borrower as the office by the
portions of the outstanding principal balance under its Note bearing interest at the Prime
Based Rate or LIBO Based Rate , as applicable, are to be made and maintained.



“Applicable Margin” — With respect to the Prime Based Rate, 1.0% per annum; and with
respect to the LIBO Based Rate, 1.25% per annum.



“Assignee” — Has the meaning specified in Section 8.07.



“Assignment and Assumption Agreement” — An Assignment and Assumption Agreement,
substantially in the form of EXHIBIT A, pursuant to which a Lender assigns and an Assignee
assumes rights and obligations in accordance with Section 11.05.



“Authorization Letter” — The letter in the form of EXHIBIT F.



“Bloomfield/MI Property” — The fee interest in real property located at 2257 South
Telegraph Road in Bloomfield, Michigan owned by RD Bloomfield.



“Business Day” — Any day on which commercial banks are not authorized or required to close
in New York City; and, whenever such day relates to a LIBOR Amount, an Interest Period with
respect to a LIBOR Amount, or notice with respect to a LIBOR Amount, any such day in which
dealings in Dollar deposits are also carried out in the London interbank market and banks are
also open for business in London.



“Code” — The Internal Revenue Code of 1986.



“Contribution Agreement” — That certain Subordination and Contribution Agreement dated as
of the date hereof by and among Administrative Agent and Borrowers.



“Counterparty” — Bank of America, N.A., or any of its Affiliates, in their capacity as a
party to the Hedging Agreement, if any, and its successors and assigns in such capacity.



“Default” — Any event or circumstance which, with the giving of notice or the passage of
time, or both, would become an Event of Default.



“Default Rate” — A rate per annum equal to (1) with respect to Prime Based Loans, a
variable rate 5% above the rate of interest then in effect thereon and (2) with


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respect to LIBOR Amounts, a fixed rate 5% above rate(s) of interest in effect thereon at
the time of Event of Default until the end of the then current Interest Period therefor
and, thereafter, a variable rate 5% above the rate of interest for a Prime Based Loan.



“Delinquency Amount”; “Delinquency Notice”; “Delinquent Lender” — Have the
respective meanings specified in Section 7.16.



“Dollars” and “$” — Lawful money of the United States of America.



“DSC Cap” — Has the meaning set forth in Section 2.04(b) of this Agreement.



“DSC Test” — Has the meaning set forth in Section 6.06 of this Agreement.



“Electing Lender”; “Election Notice”; “Election Period” — Have the
respective meanings specified in Section 7.16.



“Eligible Assignee” — An entity which is (i) a commercial bank organized under the Laws of
the United States, or any State thereof, and having (x) total assets in excess of
$1,000,000,000 and (y) a combined capital and surplus of at least $250,000,000; (ii) a
commercial bank organized under the laws of any other country which is a member of the
Organization of Economic Cooperation and Development (“OECD”), or a political subdivision of
any such country, and having (x) total assets in excess of $1,000,000,000 and (y) a combined
capital and surplus of at least $250,000,000, provided that such bank is acting through a
branch or agency located in the country in which it is organized or another country which is
also a member of OECD; (iii) a life insurance company organized under the Laws of any State of
the United States, or organized under the laws of any country and licensed as a life insurer
by any State within the United States and having admitted assets of at least $1,000,000,000;
or (iv) a nationally recognized investment banking company, or an Affiliate thereof (other
than any Person which is directly or indirectly an Affiliate of Borrower or Guarantor, or of
any member or partner of Borrower or Guarantor) organized under the Laws of any State of the
United States, and licensed or qualified to conduct such business under the Laws of any such
State and having (1) total assets of at least $1,000,000,000 and (2) a net worth of at least
$250,000,000.



“Employee Benefit Plan” — Any employee benefit or other plan established or maintained, or
to which contributions have been made, by Borrower or Guarantor.



“ERISA” — The Employee Retirement Income Security Act of 1974, including the rules and
regulations promulgated thereunder.



“ERISA Affiliate” — Any corporation which is a member of the same controlled group of
corporations (within the meaning of Section 414(b) of the Code) as Borrower and/or Guarantor,
or any trade or business which is under common control (within the meaning of Section 414(c)
of the Code) with Borrower and/or Guarantor, or


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any organization which is required to be treated as a single employer with Borrower and/or
Guarantor under Section 414(m) or 414(o) of the Code.



“Event of Default” — Has the meaning given to such term in the Mortgage.



“Existing Letters of Credit” — Collectively, (i) that certain letter of credit no.
68010726 issued by BofA on December 30, 2005 in the reduced amount of $6,600 for the benefit
of New Castle County General Manager, Department of Land Use and (ii) that certain letter of
credit no. 68012410 issued by BofA on April 24, 2006 in the amount of $50,000 for the benefit
of The Estate of John W. Rollins, Sr.



“Federal Funds Rate” — For any day, the rate per annum equal to the weighted average of
the rates on overnight Federal funds transactions as published by the Federal Reserve Bank of
New York for such day or, for any day that is not a banking day in New York City, for the
immediately preceding banking day.



“Fiscal Year” — The calendar year or such other annual period as Borrower and
Administrative Agent may mutually agree upon.



“Financial Statements” — Statements of the assets, liabilities (direct or contingent),
income, expenses and cash flow of Borrower and Guarantor, prepared in accordance with
generally accepted accounting principles in the United States as in effect from time to time
and consistently applied.



“Fronting Fee” — Has the meaning set forth in Section 8.21 of this Agreement.



“Funding Cap” — $75,000,000 subject to adjustment, up or down, in accordance with Section
2.04(b), but in no event to exceed $88,000,000.



“GAAP” — Generally accepted accounting principles in the United States as in effect from
time to time, consistently applied.



“Good Faith Contest” — The contest of an item if (1) the item is diligently contested in
good faith, and, if appropriate, by proceedings timely instituted, (2) adequate reserves are
established with respect to the contested item, (3) during the period of such contest, the
enforcement of any contested item is effectively stayed and (4) the failure to pay or comply
with the contested item during the period of the contest is not likely to (x) result in a
Material Adverse Change or (y) have an adverse effect on the Mortgaged Property under any
Mortgage or any part thereof, or on Lenders’ interest therein.



“Governmental Approvals” — Any authorization, consent, approval, license, permit,
certification, or exemption of, registration or filing with or report or notice to, any
Governmental Authority.



“Governmental Authorities” — The United States, the state in which the Property is located
and any political subdivision, agency, department, commission, board, bureau or
instrumentality of either of them, including any local authorities, which


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exercises jurisdiction over Borrower, Guarantor, the Property or the Improvements.



“Guarantor” — Jointly and severally, Acadia Realty Limited Partnership, a Delaware limited
partnership and any other person(s) or entity(ies) who may hereafter become a guarantor of any
or all of Borrower’s obligations in respect of the Loan.



“Guaranty” — The guaranty(ies) of all or part of Borrower’s obligations, to be executed by
Guarantor.



“Hazardous Materials” — Has the meaning given to such term in the Mortgage.



“Hedging Agreement” — Any ISDA Master Agreement or other documentation with respect to an
interest rate hedging transaction entered into by and between any Borrower, as any of the same
may be amended, modified or supplemented from time to time, including any and all
“confirmations” under any thereof.



“Hobson/IL Property” — The fee interest in real property located at 931 West 75th Street
in Naperville, Illinois owned by RD Hobson.



“Improvements” — Shall mean, with respect to the indicated Property: (i) a one story
Neighborhood Shopping Center containing 105,093 square feet with respect to the Absecon/NJ
Property, (ii) a one story Community Shopping Center containing 229,506 square feet with
respect to the Bloomfield/MI Property, (iii) a one story Neighborhood Shopping Center
containing 99,042 square feet with respect to the Hobson/IL Property, (iv) a one story
neighborhood shopping center containing 129,494 square feet with respect to the Methuen/MA
Property, (v) a multi-level shopping center containing 63,889 square feet with respect to the
Abington/PA Property, (vi) a one-story neighborhood shopping center containing 206,178 square
feet with respect to the Town Line/CT Property and (vii) a two story, 578,706 n.r.s.f./600
unit apartment community with 1,158 surface parking spaces with respect to the Village/NC
Property.



“Increase Fee” — Has the meaning set forth in Section 2.04(b) of this Agreement.



“Indemnity” — An agreement from Borrower and Guarantor or, if there is no Guarantor, such
other persons or entities as shall be satisfactory to Lender, whereby, among other things,
Lender is indemnified regarding Hazardous Materials.



“Individual Loan Commitment” — With respect to each Lender, the amount set forth below
opposite the name of such Lender (subject to change in accordance with the terms of this
Agreement).



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	Lender	 	Individual Loan Commitment
	 
	 	 	 	 
	BofA
	 	$	88,000,000	 





Upon any reduction in the Total Loan Commitment, each Lender’s Individual Loan Commitment shall
reduce by the Lender’s Pro Rata Share of the reduction of the Total Loan Commitment.




“Insolvency Event” — Shall mean the occurrence of any of the Events of Default described
in clauses (d) through (h) of the Mortgage.



“Interest Period” — The period during which interest at the LIBO Based Rate, determined as
provided in this Agreement, shall be applicable to the LIBO Rate Request Amount in question,
provided, however, that each such period shall be either one (1), two (2),
three (3) months (or, if available, four (4), or six (6) months or such other periods as
Administrative Agent may make available from time to time), which shall be measured from the
date specified by Borrower in each LIBO Rate Request for the commencement of the computation
of interest at the LIBO Based Rate, to the numerically corresponding day in the calendar month
in which such period terminates (or, if there be no numerical correspondent in such month, or
if the date selected by Borrower for such commencement is the last Business Day of a calendar
month, then the last Business Day of the calendar month in which such period terminates, or if
the numerically corresponding day is not a Business Day then the next succeeding Business Day,
unless such next succeeding Business Day enters a new calendar month, in which case such
period shall end on the next preceding Business Day) and in no event shall any such period
extend beyond the Maturity Date.



“Initial Advance” — The first advance of Loan proceeds to be made hereunder.



“Law” — Any federal, state or local law, statute, rule, regulation, ordinance, order,
decree, directive, requirement, code, notice of violation or rule of common law, now or
hereafter in effect, and in each case as amended, and any judicial or administrative
interpretation thereof by a Governmental Authority or otherwise, including any judicial or
administrative order, determination, consent decree or judgment.



“Lender”; “Lenders” — Has the respective meanings specified in the preamble.



“Lender Reply Period” — Has the meaning specified in Section 8.06.



“Lenders L/C Fee” — Has the meaning set forth in Section 8.21 of this Agreement.



“Letter of Credit” — Has the meaning set forth in Section 8.21 of this Agreement.



“LIBO Based Rate” — With respect to any LIBOR Amount, the rate per annum (expressed as a
percentage) determined by Administrative Agent to be equal to the sum of (i) the quotient of
the LIBO Rate for the LIBOR Amount and Interest


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Period in question divided by [1 minus the Reserve Requirement] (at Administrative Agent’s
option, rounded up, if necessary, to the nearest 1/100 of 1%) and (ii) the Applicable
Margin.



“LIBO Rate” — With respect to any applicable Interest Period, 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 selected by Administrative
Agent from time to time) at approximately 11:00 a.m. London time two (2) Business Days before
the commencement of such Interest Period, for deposits in U.S. Dollars (for delivery on the
first day of such Interest Period) with a term equivalent to such Interest Period. If such
rate is not available at such time for any reason, then the rate for that Interest Period will
be determined by such alternate method as reasonably selected by Administrative Agent.



“LIBO Rate Request” — Borrower’s telephonic notice (to be promptly confirmed in writing),
to be received by Administrative Agent by 12 Noon (New York time) three (3) Business Days
prior to the date specified in the LIBO Rate Request for the commencement of the Interest
Period (which specified date must be a Business Day), of (a) its intention to have (i) all or
any portion of the Principal Amount which is not then the subject of an Interest Period (other
than an Interest Period which is terminating on the Business Day specified in the notice)
and/or (ii) all or any portion of any advance of proceeds of the Loan evidenced by the Notes
which is to be made on the Business Day specified in such notice, bear interest at the LIBO
Based Rate and (b) the Interest Period desired by Borrower in respect of the amount specified,
which notice shall be promptly communicated by Administrative Agent to each Lender.



“LIBO Rate Request Amount” — The amount, to be specified by Borrower in each LIBO Rate
Request, which Borrower desires bear interest at the LIBO Based Rate and which, at
Administrative Agent’s option, shall be an integral multiple of $100,000.



“LIBOR Amount” — All or any portion (as the context requires) of any Lender’s Loan which
shall accrue interest at the LIBOR Based Rate.



“Liquidity Requirement” — Has the meaning specified in Section 4.01(d)(18).



“Loan” — The loan in the Loan Amount made by Lender to Borrower under this Agreement.



“Loan Allocation” — Shall mean, with respect to the indicated Property: (i) $13,000,000
for the Absecon/NJ Property, (ii) $21,000,000 for the Bloomfield/MI Property, (iii)
$10,000,000 for the Hobson/IL Property, (iv) $7,500,000 for the Abington/PA Property, (v)
$13,000,000 for the Town Line/CT Property, (vi) $8,500,000 for the Methuen/MA Property and
(vii) $15,000,000 for the Village/NC Property.



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“Loan Amount” — [$75,000,000 (subject to change in accordance with the terms of this
Agreement)].



“Loan Documents” — This Agreement, the Notes, the Mortgages, the Indemnity, the
Authorization Letter, the Solvency Certificate, the Contribution Agreement, Uniform Commercial
Code financing statements in respect of the Mortgaged Property and any other collateral given
to Lender as security for the Loan, and any other documents which evidence or secure the Loan.



“Loan to Value Cap” — Has the meaning set forth in Section 2.04(b) of this Agreement.



“Loan to Value Test” — Has the meaning set forth in Section 6.06 of this Agreement.



“Major Lease” — Any lease for space in excess of 10,000 square feet of the rentable area
of the Improvements.



“Material Adverse Change” means either (1) a material adverse change in the status of the
business, results of operations, financial condition, property or prospects of Borrower or (2)
any event or occurrence of whatever nature which is likely to (x) have a material adverse
effect on the ability of Borrower to perform its obligations under the Loan Documents or (y)
create, in the sole and absolute judgment (reasonably exercised) of Lender, a material risk of
sale or forfeiture of any of the Mortgaged Property (other than an immaterial portion thereof)
under any Mortgage or otherwise materially impair any of the Mortgaged Property under any
Mortgage or Lenders’ rights therein.



“Maturity Date” — December 1, 2010 subject to extension in accordance with Section 2.16.



“Maximum Release Price” — Has the meaning set forth in Section 8.18 of this Agreement.



“Methuen/MA Property” — The fee and leasehold interest in real property located at the
intersection of Rte. 113 and Interstate 495 in Methuen, Massachusetts owned by RD Methuen.



“Mortgage” — Those certain mortgages (or deeds of trust) made by a Borrower in favor of
Administrative Agent dated the date hereof, or as may be described in, and modified by, those
certain Mortgage (or Deed of Trust) Modification Agreements, dated the date hereof, by and
between a Borrower and Administrative Agent, in all cases to secure the payment and
performance of Borrower’s obligations hereunder, under the Note and otherwise in respect of
the Loan.



“Mortgaged Property” means, for each Property, the Property, the Improvements thereon and
all other property constituting the “Mortgaged Property”, as said quoted term is defined in
the applicable Mortgage.



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



“Net Operating Income”




     (a) all revenues from the ownership, use, occupancy, leasing and operation of the
Property during the period in question, determined in accordance with GAAP (but adjusted to
eliminate the effects of straight-lining of rents and further adjusted to exclude
extraordinary and non-recurring sources of income), including all rental and other
payments, including, without limitation, base rent, additional rent, promotional revenues,
percentage rent and payments for common area maintenance, taxes, insurance and operating
expenses and proceeds of rental loss or business interruption service, excluding tenant
security deposits collected but not applied to tenants’ obligations, and interest on such
deposits;



     minus




     (b) all expenses in connection with the Property during such period, determined in
accordance with GAAP, including insurance premiums, real estate taxes, promotional
expenses, maintenance and repair expenses, management fees and any other operational
expenses, all as determined in accordance with GAAP, but not including debt service payable
under the Loan.



“Net Worth Requirement” — Has the meaning specified in Section 4.01(d)(18).



“Non-Delinquent Lender” — Each Lender other than the Delinquent Lender(s).



“Non-Excluded Taxes” — Has the meaning specified in Section 8.14.



“Note”; “Notes” — Have the respective meanings specified in Section 2.06.



“Obligations” — Each and every obligation, covenant and agreement of Borrower, now or
hereafter existing, contained in this Agreement, and any of the other Loan Documents, whether
for principal, reimbursement obligations, interest, fees, expenses, indemnities or otherwise,
and any amendments or supplements thereto, extensions or renewals thereof or replacements
therefor, including, but not limited to, all indebtedness, obligations and liabilities of
Borrower to Administrative Agent and any Lender now existing or hereafter incurred under or
arising out of or in connection with the Notes, this Agreement, the other Loan Documents, and
any documents or instruments executed in connection therewith; in each case whether direct or
indirect, joint or several, absolute or contingent, liquidated or unliquidated, now or
hereafter existing, renewed or restructured, whether or not from time to time decreased or
extinguished and later increased, created or incurred, and including all indebtedness of
Borrower, under any instrument now or hereafter evidencing or securing any of the foregoing.



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“Outstanding Credit Amount” — Has the meaning set forth in Section 2.01 of this Agreement.



“Participant”; “Participation” — Have the respective meanings specified in Section
8.07.



“Payor” — Has the meaning specified in Section 7.12.



“Pension Plan” — Any employee pension benefit plan within the meaning of Section 3(2) of
ERISA with respect to which Borrower, Guarantor or any ERISA Affiliate at any relevant time
has liability or an obligation to contribute.



“Person” — An individual, partnership, corporation, limited liability company, business
trust, joint stock company, trust, unincorporated association, joint venture or other entity
of whatever nature.



“Plan” — Any employee benefit or other plan established or maintained, or to which
contributions have been made, by Borrower or any ERISA Affiliate and which is covered by Title
IV of ERISA or to which Section 412 of the Code applies.



“Premises Documents” — Has the meaning given to such term in the Mortgage.



“Prime Based Loan” — All or any portion (as the context requires) of a Lender’s Loan which
shall accrue interest at a rate determined in relation to the Prime Based Rate.



“Prime Based Rate” — The Applicable Margin plus the greater of (i) the Federal Funds Rate
plus 1/2 of 1% per annum or (ii) the prime commercial lending rate as announced from time to
time by Administrative Agent at Administrative Agent’s Office (it being understood that said
“prime commercial lending rate” is a reference rate and does not necessarily represent the
lowest or best rate being charged to customers), each change in said rates to be effective,
without notice or demand of any kind, as of the date of such change.



“Principal Amount” — At any time, the aggregate outstanding principal amount of the Notes.



“Property” means, individually and collectively, as the context requires, each of the
Absecon/NJ Property, the Bloomfield/MI Property, the Hobson/IL Property, the Village/NC
Property, the Abington/PA Property, the Methuen/MA Property and the Town Line/CT Property.



“Pro Rata Share” — With respect to each Lender, the ratio of such Lender’s Individual Loan
Commitment to the Loan Amount. As of the date hereof, the Lenders’ respective Pro Rata Shares
are as follows:



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	Lender	 	Pro Rata Share
	 
	 	 	 	 
	BofA
	 	 	100	%






“Regulation D” and “Regulation U” — Respectively, Regulation D and Regulation U of
the Board of Governors of the Federal Reserve System.



“Regulatory Change” — With respect to any Lender and the charging and collecting of
interest at the LIBO Based Rate, any change after the date hereof in federal, state or foreign
laws or regulations (including Regulation D) or the adoption or making after such date of any
interpretations, directives or requests applying to a class of banks including such Lender
under any federal, state or foreign laws or regulations (whether or not having the force of
law) by any court or governmental or monetary authority charged with the interpretation or
administration thereof, excluding any change the effect of which is reflected in a change in
the LIBO Based Rate.



“Release Price” — Shall mean, with respect to each Property, an amount equal to the
greater of (x) the product of the Loan Allocation Amount for such Property multiplied by 1.15
or (y) 80% of the appraised value of such Property as indicated on the most recent appraisal
procured by Lender for such Property.



“Replacement Lender” — Has the meaning set forth in Section 7.20 of this Agreement.



“Required Lenders” — At any time, those Non-Delinquent Lenders having Pro Rata Shares
aggregating more than 50%.



“Required Payment” — Has the meaning specified in Section 7.12.



“Requisition” — A written statement by or on behalf of Borrower, in form and substance
satisfactory to Administrative Agent, setting forth the amount of the Loan advance requested
in each instance and instructions for the payment of the same, and certifying the purpose for
which such advance is to be used.



“Reserve Requirement” — With respect to any applicable Interest Period, for any day that
percentage (expressed as a decimal) which is in effect on such day, as prescribed by the Board
of Governors of the Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including basic, supplemental, emergency, special and marginal reserves)
generally applicable to financial institutions regulated by the Federal Reserve Board
comparable in size and type to Lenders, in respect of “Eurocurrency liabilities” (or in
respect of any other category of liabilities which includes deposits by reference to which the
interest rate on LIBOR Amounts is determined), whether or not Lenders have any Eurocurrency
liabilities or such requirement otherwise in fact applies to Lenders. The LIBOR Rate shall be
adjusted automatically as of the effective date of each change in the Reserve Requirement




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“Solvency Certificate” — A certificate in the form of EXHIBIT G executed by each of
the Borrowers.



“Solvent” — When used with respect to any Person, that the fair value of the property of
such Person, on a going concern basis, is greater than the total amount of liabilities
(including, without limitation, contingent liabilities) of such Person.



“Special Holdback” — $780,000, provided, however, that the Special Holdback shall be $0
(zero) if, as and when RD Bloomfield delivers to Administrative Agent an estoppel from Circuit
City Stores, Inc. (“CC”) certifying that, pursuant to the lease between RD Bloomfield and CC,
CC has accepted occupancy of the demised premises, has opened for business to the public
therein and has received all required “Landlord Reimbursements” thereunder and that there is
no default under such lease.



“Supplemental Fee Letter” — That certain letter agreement, dated the date hereof, between
BofA and Borrower, providing for Borrower’s payment to Administrative Agent and/or BofA on the
date hereof and from time to time hereafter certain fees in connection with the Loan, each
such fee to be for Administrative Agent’s and/or BofA’s own account.



“Title Insurer” — The issuer(s), approved by Administrative Agent, of the title insurance
policy or policies insuring the Mortgage.



“Total Loan Commitment” — An amount equal to (x) the aggregate amount of all Individual
Loan Commitments less (y) the Special Holdback.



“Town Line/CT Property” — The fee interest in real property located at 80 Town Line Road,
Rocky Hill, Connecticut owned by Acadia Town Line.



“Treasury Rate” — The yield rate (i) on the 10 year U.S. Treasury Security due on or
closest to the Maturity Date (as defined in the Note), as such yield rate is reported in the
Wall Street Journal on the second Business Day preceding the date of calculation.



“Unrestricted Cash and Cash Equivalents” — The following assets of Guarantor (and
Guarantor’s pro rata share thereof with respect to unconsolidated joint ventures in which
Guarantor has the power and authority to cause distributions from such joint venture), in each
case, not subject to any lien, security interest or restriction: (i) cash, (ii) securities
issued or directly and fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more than six (6)
months from the date of acquisition, (iii) shares of money market funds invested in the
securities described in clause (ii) above and (iv) Dollar denominated time deposits or
certificates of deposit of any domestic United States commercial bank whose long-term debt is
rated at least A by Standard & Poor’s Rating Services, a division of The McGraw-


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Hill Companies, Inc. or A2 by Moody’s Investors Service, Inc. and having capital and
surplus in excess of $500,000,000.



“Unused Fee” — Has the meaning specified in Section 6.10.



“Unused Fee Rate” — A rate per annum which will vary daily based upon the Outstanding
Credit Amount as follows:



	 	 	 
	Outstanding Credit Amount	 	Unused Fee Rate
	 
	Less than $50,000,000

	 	0.0150% (15 basis points)
	 
	 	 
	Equal to or greater than
$50,000,000 but equal to or less
than $60,000,000

	 	0.0125% (12.5 basis points)
	 
	 	 
	Greater than $60,000,000

	 	0.0100% (10 basis points)






“Village/NC Property” — The fee interest in real property located at 240 Village Crossing
Lane in Winston-Salem, North Carolina owned by RD Village.



     Section 1.02. Accounting Terms. All accounting terms not specifically defined herein
shall be construed in accordance with GAAP, and all financial data required to be delivered
hereunder shall be prepared in accordance with GAAP.



     Section 1.03. Computation of Time Periods. Except as otherwise provided herein, in
this Agreement, in the computation of periods of time from a specified date to a later specified
date, the word “from” means “from and including” and words “to” and “until” each means “to but
excluding”.



     Section 1.04. Rules of Construction. Except as expressly provided otherwise, when
used in this Agreement (i) “or” is not exclusive, (ii) “hereunder”, “herein”, “hereof” and the like
refer to this Agreement as a whole, (iii) “Article”, “Section”, “Schedule” and “Exhibit” refer to
Articles, Sections, Schedules and Exhibits of this Agreement, (iv) terms defined in the singular
shall have a correlative meaning when used in the plural and vice versa, (v) a reference to a Law
includes any amendment, modification or supplement to, or replacement of, such Law and (vi) a
reference to a document shall mean such document as the same may be amended, modified or
supplemented from time to time in accordance with its terms. The cover page and the Exhibits and
Schedules, if any, annexed hereto are incorporated as a part of this Agreement with the same effect
as if set forth in the body hereof. Any table of contents and all captions and headings herein are
for convenience only and shall not affect the interpretation or construction hereof.



ARTICLE II




THE LOAN




     Section 2.01. Generally. Subject to the terms and conditions of this Agreement, each
of the Lenders severally agrees to lend to Borrower in an amount up to its Individual



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Loan Commitment pursuant to which the Lender shall from time to time advance and re-advance to
Borrower an amount equal to its Pro Rata Share of the excess of the Total Loan Commitment over the
sum (the “Outstanding Credit Amount”) of (1) all previous advances of the Loans which remain unpaid
and (2) the outstanding amount of all Letters of Credit. Within the limits set forth herein,
Borrower may borrow from time to time under this Section 2.01 and prepay from time to time pursuant
to Section 2.13 (subject, however, to the restrictions on prepayment set forth in said Section),
and thereafter re-borrow pursuant to this Section 2.01. The Loans may be outstanding as (1) Base
Rate Loans, (2) LIBOR Amounts or (3) a combination of the foregoing, as Borrower shall elect and
notify Administrative Agent in accordance with Section 2.10. Each Lender’s share of the Loan shall
be maintained at such Lender’s Applicable Lending Office.



     Section 2.02. Nature of Lenders’ Obligations. The obligations of Lenders under this
Agreement are several, and no Lender shall be responsible for the failure of any other Lender to
make any advance of the Loan to be made by such other Lender. However, the failure of any Lender
to make any advance of the Loan to be made by it hereunder on the date specified therefor shall not
relieve any other Lender of its obligation to make any advance of its portion of the Loan specified
hereby to be made on such date.



     Section 2.03. Purpose. The Loan shall be made for the business purposes of working
capital, distributions to Borrower’s parent company and repayment of existing debt. Borrower
covenants and agrees that in no event shall proceeds of the Loan, or any part thereof, be used,
directly or indirectly, for any other purpose, for any illegal purpose or for the purpose, whether
immediate, incidental or ultimate, of buying or carrying “margin stock” within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System, or in connection with any
hostile acquisition or for any illegal purpose.



     Section 2.04. Advances.




     (a) The Initial Advance (which has previously been advanced under the Original Agreement and
the Term Agreement) is in the amount of $40,584,535 (prior to any prepayments Borrower may make on
the date hereof) and shall be made upon satisfaction of the conditions set forth in Section 4.01.
Subsequent advances shall be made no more frequently than once a month thereafter, upon
satisfaction of the conditions set forth in Section 4.02. In no event shall Lenders be obligated
to make an advance hereunder if the Outstanding Credit Amount of the Loan following such advance
(the “Post Advance Amount”) would exceed the Funding Cap.




     (b) Upon (i) request of Borrower, but not more often than once per calendar quarter, and
payment of the Increase Fee (as hereinafter defined) or (ii) the release of any Property in
accordance with Section 8.18 or 8.19, Administrative Agent shall recalculate the Funding Cap as of
the first day of the month in which Administrative Agent receives such request (or in the case of a
Property release, the first day of the month preceding such release) to be the amount equal to the
least of (x) 65% of the appraised value of the Mortgaged Property (the “Loan to Value Cap”) as
determined by an independent appraisal conducted at Borrower’s expense by an appraiser selected by
Administrative



16









 







Agent, which appraisal shall be conclusive as to value absent manifest error or (y) an amount
equal to the highest Post Advance Amount at which the current Net Operating Income would equal 130%
of debt service on such Post Advance Amount (the “DSC Cap”) or (z) $88,000,000. As a condition to
the effectiveness of any and all increases in the Funding Cap, Borrower shall pay to Administrative
Agent for the benefit of Lenders, any applicable fee related to such extension as set forth in the
Supplemental Fee Letter (the “Increase Fee”). For purposes of determining compliance with the DSC
Cap, Net Operating Income shall be calculated using actual figures for the preceding six (6) months
and the projected figures for the next succeeding six months and debt service shall be calculated
using an interest rate equal to the greater of (a) the actual interest rate; (b) the Treasury Rate
plus 225 basis points or (c) an interest rate equal to 8.0% and a (25) year equal payment self
liquidating amortization schedule. For purposes of determining the Loan to Value Cap, a new
appraisal shall not be required for each redetermination of the Funding Cap provided the appraisal
required in connection therewith shall not be more than twelve (12) months old and any required
reappraisals shall be made at Borrower’s expense. Notwithstanding anything to the contrary
contained herein, there shall be no increases in the Funding Cap on or after December 1, 2010.



     Section 2.05. Procedure for Advance. Borrower shall submit to Administrative Agent a
request for the advance of proceeds of the Loan stating the amount requested and the purpose for
which such advance is to be used no later than 10:00 a.m. (New York time) on the date five (5)
Business Days, prior to the date the advance is to be made. Administrative Agent, upon its receipt
and approval of the request for advance, will so notify all Lenders by facsimile. Not later than
10:00 a.m. (New York time) on the date set for such advance, each Lender shall, through its
Applicable Lending Office and subject to the conditions of this Agreement, make the amount to be
advanced by it on such day available to Administrative Agent, at Administrative Agent’s Office and
in immediately available funds for the account of Borrower. The amount so received by
Administrative Agent shall, subject to the conditions of this Agreement, be made available to
Borrower, in immediately available funds, by Administrative Agent’s crediting one or more bank
accounts of Borrower or any one or more of them designated by Borrower in its request for advance.
Each Advance made pursuant to this Agreement shall be in an amount at least equal to $1,000,000 and
in integral multiples of $100,000.



     Section 2.06. Notes/Joint and Several Liability. The Loan shall be evidenced by
notes of Borrower in the form of EXHIBIT D, duly completed and executed by Borrower (one for each
Lender in an amount equal to such Lender’s Individual Loan Commitment, payable for the account of
such Lender’s Applicable Lending Office), in an aggregate principal amount equal to the Loan Amount
(such notes, as the same may hereafter be amended, modified, extended, severed, assigned,
substituted, renewed or restated from time to time (including, without limitation, any substitute
notes pursuant to Section 8.07), each, a “Note” and collectively, the “Notes”). The Notes shall
mature, and all outstanding principal and other sums thereunder shall be paid in full, on the
Maturity Date, as the same may be accelerated or extended. All entities which comprise Borrower
hereunder shall be jointly and severally liable for all Obligations of Borrower hereunder and under
the Notes and other Loan Documents. Each Borrower hereby (i) acknowledges that all of the
conditions to funding hereunder are solely for the benefit of



17









 







Lenders and Administrative Agent and Administrative Agent and/or Lenders may, in their sole
and absolute discretion, waive any condition hereunder to funding any portion of the Loan to
Borrower and (ii) agrees that no Borrower shall have any offset or defense to its obligations
hereunder or under the other Loan Documents, or any claim whatsoever against Administrative Agent
or any Lender, based upon Lenders making any advance of Loan proceeds to any Borrower.



     Each Lender is hereby authorized by Borrower to endorse on the schedule attached to the Note
held by it, the amount of each advance and each payment of principal received by such Lender for
the account of its Applicable Lending Office(s) on account of its Loan, which endorsement shall, in
the absence of manifest error, be conclusive as to the outstanding balance of the Loan made by such
Lender. The failure by any Lender to make such notations with respect to its Loans or each advance
or payment shall not limit or otherwise affect the obligations of Borrower under this Agreement or
the Notes.



     In case of any loss, theft, destruction or mutilation of any Lender’s Note, Borrower shall,
upon its receipt of an affidavit of an officer of such Lender as to such loss, theft, destruction
or mutilation and an appropriate indemnification, execute and deliver a replacement Note to such
Lender in the same principal amount and otherwise of like tenor as the lost, stolen, destroyed or
mutilated Note.



     Section 2.07. Payments and Distributions; Certain Consequences of Delinquent Lender
Status. Borrower shall make each payment under this Agreement and under the Notes not later
than 11:00 a.m. (New York time) on the date when due to Administrative Agent at Administrative
Agent’s Office in immediately available funds. Administrative Agent will thereafter, on the day of
its receipt of each such payment, cause to be distributed to each Lender (i) such Lender’s
appropriate share (based upon the respective outstanding principal amounts of the Notes and the
respective rates of interest thereunder) of the payments of principal and interest, and its
appropriate share of the payments of other sums, in like funds for the account of such Lender’s
Applicable Lending Office. Payments by Borrower hereunder or under the Notes or other Loan
Documents shall be made without setoff or counterclaim.



     Except to the extent otherwise provided in this Agreement, whenever any payment to be made
under this Agreement or under the Notes is due on any day other than a Business Day, such payment
shall be made on the next succeeding Business Day, and such extension of time shall in such case be
included in the computation of the payment of interest and, if applicable, fees, as the case may
be.



     Notwithstanding the foregoing provisions of this Section, (i) Administrative Agent shall make
no payment to a Delinquent Lender until the Non-Delinquent Lenders have been paid in full all
outstanding principal, accrued and unpaid interest and any other sums owing to them under the Loan
Documents, it being understood that payments of interest on account of the outstanding principal
amount of the Note held by the Delinquent Lender shall be held by Administrative Agent in a
non-interest bearing account and not distributed to the Delinquent Lender until such time as all
principal,



18









 







interest and other sums due to the Non-Delinquent Lenders have been paid in full; (ii) any
payments (other than interest, as provided in clause (i) above) which would otherwise be due a
Delinquent Lender shall be distributed to the Non-Delinquent Lenders until such time as all
principal, interest and other sums due to the Non-Delinquent Lenders have been paid in full (except
that any such amounts otherwise due a Delinquent Lender received by Administrative Agent during an
Election Period shall be retained by Administrative Agent until the expiration of the Election
Period and either paid to the Delinquent Lender, if the delinquency is cured, or paid to the
Non-Delinquent Lenders, if the delinquency is not cured); and (iii) Administrative Agent shall
deduct, from amounts due (or, in the case of a Delinquent Lender, amounts that would otherwise be
payable to such Delinquent Lender being held by Administrative Agent pursuant to clause (i) above)
a Lender in default under its obligations under Section 7.05 or the reimbursement provisions of
this Section 2.07 regarding interpleader actions, the amount owing by such Lender pursuant to said
Section 7.05 or the reimbursement provisions of this Section 2.07 regarding interpleader actions
and pay the amount so deducted to itself, the other Lenders, or such other party as is entitled to
such amount, as applicable.



     If, following such time as all amounts owing under the Loan to the Non-Delinquent Lenders and
Administrative Agent have been paid in full, Administrative Agent is holding funds in respect of
amounts payable to the Delinquent Lender as provided in the third paragraph of this Section,
Administrative Agent shall file an interpleader action in New York State Supreme Court, New York
County and shall deposit the funds so held (less a sum equal to Administrative Agent’s reasonable
fees and expenses in connection with said interpleader action and deposit) with said court and
Administrative Agent shall thereupon be relieved of responsibility to any party with respect to the
funds deposited. Borrower and each Delinquent Lender hereby jointly and severally agree to
reimburse Administrative Agent for all costs and expenses that Administrative Agent may incur in
connection with the foregoing interpleader action.



     Except as provided above in this Section and in Section 7.16, each Lender’s interest in the
Loan shall be of equal priority with the interest of each other Lender.



     Section 2.08. Interest. Borrower shall have the option, subject to the terms and
conditions set forth in this Agreement, of paying interest on the Principal Amount or portions
thereof at the Prime Based Rate or the LIBO Based Rate. If Borrower desires the application of the
LIBO Based Rate, it shall submit a LIBO Rate Request to Administrative Agent, which LIBO Rate
Request shall be irrevocable, subject to Borrower’s right to convert the rate of interest payable
under the Notes with respect to any LIBOR Amount from the LIBO Based Rate to the Prime Based Rate
as provided in Section 2.10. Administrative Agent shall, on the day of its receipt of the LIBO
Rate Request from Borrower, notify each Lender by facsimile of the specified LIBOR Amount and the
amount of the Lender’s portion thereof, the Interest Period and date of commencement thereof, and
the interest rate applicable to such LIBOR Amount. Each LIBO Rate Request shall be applicable to
the Notes in accordance with the Lenders’ respective Pro Rata Shares, so that, barring a conversion
or suspension of the LIBO Based Rate by one or more, but not all, Lenders, pursuant to Article III,
the outstanding principal amounts of each of the Notes shall contain segments bearing interest at
the



19









 







Prime Based Rate and/or LIBO Based Rate(s) under particular Interest Period(s), each of which
segments shall correspond to a proportional segment of the outstanding principal amount of every
other Note. In the event that Borrower fails to submit a LIBO Rate Request with respect to a LIBOR
Amount not later than 12 Noon (New York time) three (3) Business Days prior to the last day of the
relevant Interest Period, the LIBOR Amount in question shall bear interest, commencing at the end
of such Interest Period, at the Prime Based Rate for a one (1) month Interest Period.



     Interest shall be computed on an actual/360-day basis (i.e., interest for each
day during which any portion of the Principal Amount is bearing interest at a particular interest
rate per annum shall be computed at such rate divided by 360).



     Borrower shall pay interest on the Principal Amount to Administrative Agent for the account of
Lenders. Interest on the Principal Amount shall be payable, in arrears, monthly on the first day
of the first month following the Initial Advance and on the first day of each month thereafter
until the Notes are repaid in full.



     Section 2.09. Limitation on Number of Interest Periods. Borrower shall not have the
right to have more than five (5) Interest Periods, in the aggregate, in respect of the Loan in
effect at any one time, whether or not any portion of the Principal Amount is then bearing interest
at the Prime Based Rate.



     Section 2.10. Conversions of Interest Rate. Provided there exists no Event of
Default, Borrower shall have the right to convert, from time to time, the rate of interest payable
under the Notes with respect to any portion of the Principal Amount to the LIBO Based Rate or the
Prime Based Rate, subject to the terms of this Agreement (including, without limitation, the
payment of all amounts due in connection with any such conversion from the LIBO Based Rate on a
date other than the last day of an applicable Interest Period) and provided that, in the
case of a conversion from the LIBO Based Rate, the entire LIBOR Amount is the subject of the
conversion. Conversions shall be accomplished (i) in the case of a conversion from the Prime Based
Rate to the LIBO Based Rate, by Borrower’s submission of a LIBO Rate Request in accordance with
Section 2.08 or (ii) in the case of a conversion from the LIBO Based Rate to the Prime Based Rate,
by Borrower’s request to Administrative Agent by telephone (to be promptly confirmed in writing),
to be received by Administrative Agent at least three (3) Business Days prior to the date specified
for such conversion, specifying the LIBOR Amount with respect to which the interest rate is to be
converted and the date of the conversion. With respect to any portion of the Principal Amount
subject to the LIBO Based Rate, Borrower shall not have the right to convert from one Interest
Period to another other than the last day of an applicable Interest Period. On the date of its
receipt of such request, Administrative Agent shall notify each Lender thereof either by telephone
or by facsimile.



     Section 2.11. Inapplicability of LIBO Based Rate. Any portion of the Principal
Amount to which the LIBO Based Rate is not or cannot pursuant to the terms of this Agreement be
applicable shall bear interest at the Prime Based Rate. Upon the occurrence of an Event of
Default, the entire Principal Amount shall, at the option of the



20









 







Required Lenders, immediately and without notice to Borrower, bear interest at the Prime Based
Rate. In addition, following the occurrence of an Event of Default, Borrower shall have no right
to submit a LIBO Rate Request with respect to any LIBOR Amount for which the current Interest
Period is expiring. The foregoing provisions shall not be construed as a waiver by Lenders of
their right to pursue any other remedies available to them under the Mortgage or any other Loan
Document nor shall they be construed to limit in any way the application of the Default Rate as
provided in the Mortgage.



     Section 2.12. Late Payment Premium. Borrower shall pay to Administrative Agent for
the account of Lenders a late payment premium in the amount of 5% of any payments of principal or
interest under the Loan made more than ten (10) days after the due date thereof, which late payment
premium shall be due with any such late payment.



     Section 2.13. Voluntary Prepayments. Borrower may, upon at least five (5) Business
Days’ notice (which notice shall be irrevocable) to Administrative Agent, prepay the Principal
Amount, in whole or part, without premium or penalty; provided, however, that (i)
any partial prepayment under this Section shall be in a principal amount of not less than
$1,000,000 and an integral multiple of $100,000, (ii) prepayment of a LIBOR Amount other than on
the last day of the applicable Interest Period shall be subject to the provisions of Section 3.03
and (iii) each prepayment under this Section shall include all interest accrued on the amount of
principal prepaid (and all late charges and other sums that may be payable) through the date of
prepayment.



     Section 2.14. Annual Commitment Reduction/Required Amortization. Commencing on the
first day of December, 2007 and on the first day of each December thereafter until the Maturity
Date both the Loan Amount and the Total Loan Commitment shall reduce by the amount set forth on
Schedule A attached hereto and, to the extent the Loan Amount as so reduced would exceed
the Outstanding Credit Amount, Borrower shall, on the date of reduction make a mandatory principal
payment (or at Administrative Agent’s option deliver cash collateral for any Letter of Credit
outstanding) in the amount of such excess such that, at no time, shall the Outstanding Credit
Amount (excluding any portion of a Letter of Credit which is secured by cash collateral) exceed the
Loan Amount as reduced from time to time. After any release of a Property, in accordance with
Section 8.18 or otherwise, Administrative Agent shall recalculate the required annual amortization
payments due hereunder in accordance with a constant annual payment mortgage schedule based on the
Funding Cap at such time and an assumed interest rate of 8% per annum, which would fully amortize
over a term equal to (x) twenty-five (25) years less (y) the number of full twelve (12) month
periods elapsed since the date hereof. Administrative Agent shall provide Borrower with a schedule
of such recalculated amortization payment schedule upon request and such schedule shall be final
and binding upon Borrower absent manifest error.



     Section 2.15. Nature of Lenders’ Obligations; Borrower’s Rights and Obligations in Event a
Lender Fails to Make an Advance. The obligations of Lenders under this Agreement are several,
and no Lender shall be responsible for the failure of any other Lender to fund the portion required
to be funded by such other Lender of an advance of the Loan.



21









 





     Section 2.16. Extension of Maturity.




     (a) Borrower shall have the right to extend the Maturity Date for a period of one (1) year, to
December 1, 2011 (the “First Extension Term”), upon satisfaction of the following conditions: (i)
Borrower shall give notice to Administrative Agent of Borrower’s election to so extend the Maturity
Date no later than thirty (30) days prior to the original Maturity Date and no earlier than ninety
(90) days prior to the original Maturity Date, (ii) no Default or Event of Default exists at either
the time Borrowers gives notice of its exercise of such extension option or as of the original
Maturity Date, (iii) with Borrower’s notice exercising such extension option, Borrower shall pay to
BofA the extension fee required pursuant to the Supplemental Fee Letter, which fee shall be earned
by BofA upon receipt and (iv) without limiting the generality of the foregoing, Borrower shall be
in compliance with Section 6.06.




     (b) Provided that Borrower has extended the Maturity Date in accordance with the terms of
Section 2.16(a), Borrowers shall have the right to further extend the Maturity Date for an
additional period of one (1) year, to December 1, 2012 (the “Second Extension Term”), upon
satisfaction of the following conditions: (i) Borrower shall give notice to Administrative Agent
of Borrower’s election to so extend the Maturity Date no later than thirty (30) days prior to the
Maturity Date as extended by the First Extension Term and no earlier than ninety (90) days prior to
the Maturity Date as extended by the First Extension Term, (ii) no Default or Event of Default
exists at either the time Borrowers give notice of its exercise of such extension option or as of
the Maturity Date, as extended by the First Extension Term, (iii) with Borrower’s notice exercising
such extension option, Borrower shall pay to BofA the extension fee required pursuant to the
Supplemental Fee Letter, which fee shall be earned by BofA upon receipt and (iv) without limiting
the generality of the foregoing, Borrower shall be in compliance with Section 6.06.



ARTICLE III




YIELD MAINTENANCE ETC.




     Section 3.01. Additional Costs and Other Effects of Regulatory Changes; Taxes.
Borrower shall pay directly to a Lender, promptly upon demand, such amounts as are necessary to
compensate such Lender for Additional Costs resulting from any Regulatory Change which (i) subjects
such Lender to any tax, duty or other charge with respect to the Loan or its Note, or changes the
basis of taxation of any amounts payable to such Lender under the Loan or its Note (other than
taxes imposed on the overall net income of such Lender or of its Applicable Lending Office by the
jurisdiction in which such Lender’s principal office or such Applicable Lending Office is located),
(ii) imposes, modifies or deems applicable any reserve, special deposit or similar requirements
relating to any extensions of credit or other assets of, or any deposits with or other liabilities
of, such Lender, (iii) imposes on such Lender or, in the case of LIBOR Amounts, on the London
interbank market, any other condition affecting the Loan or its Note, or any of such extensions of
credit or liabilities or (iv) imposes any capital adequacy requirements on such Lender by virtue of
the Loan or the Notes. Such Lender will notify Borrower (with



22









 







a copy to Administrative Agent) of any event occurring after the date hereof which would
entitle it to compensation pursuant to this paragraph as promptly as practicable after it obtains
knowledge thereof and determines to request such compensation, and will designate a different
Applicable Lending Office for those portions of the Loan affected by such event if such designation
will avoid the need for, or reduce the amount of, such compensation and will not, in such Lender’s
sole opinion, be disadvantageous to it, provided that such Lender shall have no obligation to so
designate an Applicable Lending Office located in the United States.



     Without limiting the effect of the immediately preceding paragraph, in the event that, by
reason of any Regulatory Change, (i) a Lender incurs Additional Costs based on or measured by the
excess above a specified level of the amount of (1) a category of deposits or other liabilities of
such Lender which includes deposits by reference to which the LIBO Rate is determined as provided
in this Agreement and/or (2) a category of extensions of credit or other assets of such Lender
which includes loans the interest on which is determined on the basis of rates referred to in the
definition of “LIBO Rate” in Section 1.01, (ii) a Lender becomes subject to restrictions on the
amount of such a category of liabilities or assets which it may hold or (iii) it shall be unlawful
or impossible for a Lender to make or maintain its Pro Rata Share of the Loan (or any portion
thereof) at the LIBO Based Rate, then such Lender’s obligation to make or maintain its Pro Rata
Share of the Loan (or any portion thereof) at the LIBO Based Rate (and Borrower’s right to request
the same) shall be suspended and such Lender shall give notice thereof to Borrower (with a copy to
Administrative Agent) and, upon the giving of such notice, interest payable on the affected Note
shall be converted to the Prime Based Rate, unless such Lender may lawfully continue to maintain
its Pro Rata Share of the Loan (or any portion thereof) then bearing interest at the LIBO Based
Rate to the end of the current Interest Period(s), at which time the interest rate on the affected
Note shall convert to the Prime Based Rate. If subsequent to any conversion to the Prime Based
Rate as provided above such Lender determines that such Regulatory Change has ceased to be in
effect, such Lender will so notify Borrower (with a copy to Administrative Agent), and Borrower may
convert the rate of interest payable under the affected Note with respect to those portions of the
Principal Amount bearing interest at the Prime Based Rate to the LIBO Based Rate by submitting a
LIBO Rate Request in respect thereof and otherwise complying with the provisions of this Agreement
with respect thereto.



     Determinations by each Lender of the existence or effect of any Regulatory Change on its costs
of making or maintaining its Pro Rate Share of the Loan, or portions thereof, at the LIBO Based
Rate, or on amounts receivable by it in respect thereof, and of the additional amounts required to
compensate such Lender in respect of Additional Costs, shall be conclusive, so long as made on a
reasonable basis.



     Section 3.02. Limitations on Availability of LIBO Based Rate. Anything herein to the
contrary notwithstanding, if, at the time of or prior to the determination of the LIBO Based Rate
in respect of any LIBO Rate Request Amount as provided in this Agreement, (i) Administrative Agent
determines (which determination shall be conclusive, so long as made on a reasonable basis) that by
reason of circumstances affecting the London interbank market generally, adequate and fair means do
not or will



23









 







not exist for determining the LIBO Rate applicable to an Interest Period or (ii) a Lender
determines (which determination shall be conclusive, so long as made on a reasonable basis) that
the LIBO Rate will not accurately reflect the cost to such Lender of making or maintaining its Pro
Rata Share of the Loan (or any portion thereof) at the LIBO Based Rate, then Administrative Agent,
in the case of the circumstances described in clause (i) above, or such Lender, in the case of the
circumstances described in clause (ii) above, shall give Borrower prompt notice thereof (with a
copy to Administrative Agent in the case of the notice from such Lender), and the LIBO Rate Request
Amount in question, in the case of the circumstances described in clause (i) above, or such
Lender’s portion thereof, in the case of the circumstances described in clause (ii) above, shall
bear interest, or continue to bear interest, as the case may be, at the Prime Based Rate. If at
any time subsequent to Administrative Agent’s or such Lender’s giving of such notice,
Administrative Agent or such Lender, as the case may be, determines that because of a change in
circumstances the LIBO Based Rate is again available to Borrower, Administrative Agent or such
Lender, as the case may be, shall so notify Borrower (with a copy to Administrative Agent, in the
case of the notice from such Lender) and Borrower may convert the rate of interest payable under
the Notes or such Lender’s Note, as the case may be, from the Prime Based Rate to the LIBO Based
Rate by submitting a LIBO Rate Request in respect thereof and otherwise complying with the
provisions of this Agreement with respect thereto.



     Section 3.03. Certain Compensation. Borrower shall pay directly to a Lender,
immediately upon request and notwithstanding contrary provisions contained in the Mortgage or other
Loan Documents, such amounts as shall, in the judgment of such Lender (which shall be conclusive so
long as made on a reasonable basis), compensate it for any loss, cost or expense incurred by it as
a result of (i) any payment or prepayment (under any circumstances whatsoever, whether voluntary or
involuntary) of any portion of the Principal Amount bearing interest at the LIBO Based Rate on a
date other than the last day of an applicable Interest Period, (ii) the conversion (for any reason
whatsoever, whether voluntary or involuntary) of the rate of interest payable under such Lender’s
Note from the LIBO Based Rate to the Prime Based Rate with respect to any portion of the Principal
Amount then bearing interest at the LIBO Based Rate on a date other than the last day of an
applicable Interest Period, (iii) the failure of all or a portion of an advance of the Loan which
was to have borne interest at the LIBO Based Rate pursuant to a LIBO Rate Request to be made, (iv)
any failure by Borrower to prepay any portion of the Principal Amount bearing interest at the LIBO
Based Rate on the date specified in Borrower’s notice of prepayment or (v) the failure of Borrower
to borrow, continue or convert in accordance with a LIBO Rate Request submitted by it, which
amounts shall include, without limitation, an amount equal the Present Value (determined as
hereinafter provided) of the dollar amount which is obtained by multiplying the number of days from
the date of the occurrence to the last day of the applicable Interest Period by a number which is
calculated by (i) multiplying the amount prepaid, converted, not advanced, not prepaid or not
borrowed, as the case may be, by the excess of the LIBO Based Rate applicable thereto over the
current rate for United States Treasury securities (bills on a discounted basis shall be converted
to a bond equivalent) with a maturity date closest to the last day of the applicable Interest
Period and (ii) dividing the product thereof by 360. For purposes of this Section, Present Value
shall be determined by using the number of



24









 







days during the period from the date of occurrence to and including the last day of the
applicable Interest Period and using the above-referenced United States Treasury security rate. A
determination by a Lender as to the amounts payable to it pursuant to this Section shall be
conclusive absent manifest error.



     Section 3.04. “Lender” to Include Participants. For purposes of this Article III and
of the definition of “Additional Costs” in Section 1.01, the term “Lender” shall, at each Lender’s
option, be deemed to include such Lender’s present and future Participants in the Loan to the
extent of each such Participant’s actual Additional Costs or other losses, costs or expenses
payable pursuant to this Article III.



ARTICLE IV




CONDITIONS PRECEDENT




     Section 4.01. Conditions Precedent to Loan. Lenders shall not be obligated to make
the Initial Advance until the following conditions shall have been satisfied:




     (a) There shall exist no Default or Event of Default, and no Default or Event of
Default would result from the making of the Loan;




     (b) The representations and warranties made to Administrative Agent or Lenders herein,
in the other Loan Documents and in any other document, certificate or statement executed or
delivered to Administrative Agent or Lenders in connection with the Loan shall be true and
correct on and as of the date of the advance of the Loan with the same effect as if made on
such date;




     (c) The Improvements shall not have been materially injured or damaged by fire or
other casualty; and




     (d) Lenders shall have received and approved each of the following:




     (1) Loan Fees and Expenses. (i) Those fees required by the
Supplemental Fee Letter to be paid on or before the date hereof, to be retained by
Administrative Agent and/or BofA of its own account (without credit for any amounts
paid under existing credit facilities refinanced hereby) to be retained by BofA
whether or not any advances are made hereunder, (ii) the first payment of the
Administration Fee required by Section 6.03 to be paid to Administrative Agent for
its own account and (iii) all fees and expenses incurred by Administrative Agent
(including, without limitation, the reasonable fees and expenses of Administrative
Agent’s Counsel, Lenders’ environmental and insurance consultants, and the preparer
of the appraisal required by paragraph (4) below);




     (2) Loan Documents. This Agreement and each of the other Loan
Documents, duly executed by the parties thereto, and, where applicable, duly
acknowledged and in proper form for recording or filing,



25









 







as the case may be, and all necessary or desirable recordings and filings
shall have been duly made;




     (3) Financial Statements. Current Financial Statements and such other
financial data (including, without limitation, current financial statements of
tenants under leases in respect of the Mortgaged Property and of parties to any of
the Premises Documents, and of the guarantor(s), if any, of any such tenants or
parties) as Administrative Agent shall require;




     (4) Appraisal. An independent M.A.I. appraisal of the Property and
Improvements complying in all respects with the standards for real estate
appraisals established pursuant to the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989;




     (5) Insurance Policies. The policies of insurance required by the
Mortgage, together with evidence of the payment of the premiums therefor;




     (6) Hazardous Materials Report/Reliance Letter. A detailed report by
a properly qualified engineer, which shall include, inter alia, a
certification that such engineer has obtained and examined a list of prior owners,
tenants and other users of all or any portion of the Property or any improvements
thereon, and has made an on-site physical examination of the Property, and a visual
observation of the surrounding areas, and has found no evidence of past or present
Hazardous Materials activities or the presence of Hazardous Materials, together
with, if required by Administrative Agent, a “reliance letter” addressed to
Administrative Agent with respect to such report;




     (7) Title Policy. A paid title insurance policy, in the amount of the
Loan Allocation for each property in ALTA 10-17-92 or other form approved by
Administrative Agent’s Counsel with such endorsements as shall be reasonably
requested by Administrative Agent’s Counsel (including “tie-in” endorsements
aggregating liability under such policies to the extent permitted by Law), issued
by the Title Insurer which shall insure the Mortgage to be a valid lien on
Borrower’s interest in the premises free and clear of all defects and encumbrances
except those previously received and approved by Administrative Agent’s Counsel,
and shall contain (i) full coverage against mechanics’ liens (filed and inchoate),
(ii) a reference to the survey but no survey exceptions except those theretofore
approved by Administrative Agent’s Counsel, (iii) such affirmative insurance and
endorsements as Administrative Agent’s Counsel may require, and (iv) if any such
policy is dated earlier than the date of the disbursement of the Loan, an
endorsement to such policy, in form approved by Administrative Agent’s Counsel,
redating the policy and setting forth no additional exceptions except those
approved by



26









 







Administrative Agent’s Counsel; and shall be accompanied by such reinsurance
agreements between the Title Insurer and title companies approved by Lender, in
ALTA 1994 facultative form, as Lender may require;




     (8) Survey. A current ALTA/ACSM, as-built survey of the Property,
certified to Lender and the Title Insurer showing (i) the location of the perimeter
of the Property by courses and distances, (ii) all easements, rights-of-way, and
utility lines referred to in the title policy required by this Agreement or which
actually service or cross the Property (with instrument, book and page number
indicated), (iii) the lines of the streets abutting the Property and the width
thereof, and any established building lines (and that such roads have been
dedicated for public use and are completed and have been accepted by all required
Governmental Authorities), (iv) any encroachments and the extent thereof upon the
Property, (v) locations of all portions (with the acreage thereof also identified)
of the Property, if any, which are located in an area designated as a “flood prone
area” as defined by U.S. Department of Housing and Urban Development pursuant to
the Flood Disaster Protection Act of 1973 and (vi) the Improvements, and the
relationship thereof by distances to the perimeter of the Property, established
building, setback and street lines and (vi) if the Property is described as being
on a filed map, a legend relating the survey to said map;




     (9) Leases and Premises Documents. Certified copies of all leases in
respect of the Mortgaged Property, accompanied by, in the case of Anchors and any
other leases specified by Administrative Agent, estoppel certificates from the
tenants thereunder and executed notice-of-assignment letters in the form of EXHIBIT
B in respect thereof; executed subordination and attornment agreements, in
Administrative Agent’s usual form, in respect of such leases as Administrative
Agent may require; a certified copy of the standard form of lease or contract of
sale, as the case may be, Borrower will use in connection with the leasing of space
in the Improvements or the sale of portions of the Property; certified copies of
all Premises Documents, together with estoppel certificates from the parties
thereto and a certified current rent roll for the Improvements;




     (10) Requisition. A Requisition for the Initial Advance,




     (11) Counsel Opinions. Opinions of Borrower’s counsel and local
counsel (and, if required by Lender, of a local counsel selected by Lender
or Administrative Agent’s Counsel) to the effects set forth on EXHIBIT C; Borrower
hereby acknowledges that each of its counsel delivering opinion letters to
Administrative Agent on or about the date hereof has been requested and directed by
Borrower to do so;



27









 






     (12) Organizational Documents. If Borrower, the mortgagor or grantor
under any Mortgage (if different from Borrower), Guarantor or any general partner
or member of any of them is a corporation, current copies of the following
documents with respect to each (unless otherwise indicated):




     (i) a good-standing certificate from the jurisdiction of its
incorporation and, as to Borrower and the mortgagor or grantor under the
Mortgage only, from the jurisdiction in which the Property is located,




     (ii) a resolution, certified by the corporate secretary, of the
shareholders or directors of the corporation authorizing the consummation
of the transactions contemplated hereby and the execution, delivery and
performance of the Loan Documents and any other documents to be executed,
delivered or performed by said corporation (including any substitute or
replacement Notes to be executed and delivered pursuant to the terms
hereof), and




     (iii) a certificate of the corporate secretary as to the incumbency
of the officers executing any of the documents required hereby,




and, if Borrower, the mortgagor or grantor under the Mortgage (if different from
Borrower), Guarantor or any general partner or member of any of them is a
partnership, venture, limited liability company or trust:




     (iv) the entity’s organizational agreement and all amendments and
attachments thereto, certified by a general partner, venturer, member or
trustee to be true and complete,




     (v) any certificates filed or required to be filed by the entity in
the jurisdictions of its formation and where the Property is located in
order for it to do business in those jurisdictions, and




     (vi) evidence of the authorization of the consummation of the
transactions contemplated hereby and the execution, delivery and
performance of the Loan Documents and any other documents to be executed,
delivered or performed by said entity (including any substitute or
replacement notes to be executed and delivered pursuant to the terms
hereof), and including any required consents by partners, venturers,
members, trustees or beneficiaries;




     (13) Management and Leasing Contracts. Copies, certified to be true
and complete, of all existing contracts providing for the management, maintenance,
operation or leasing of the Property and Improvements, together with, in each case,
such collateral assignments or “will-serve” letters as Administrative Agent may
require;



28









 






     (14) Permits and Approvals. Copies of the certificate(s) of occupancy
for the Improvements and of any and all other authorizations (including plot plan
and subdivision approvals, zoning variances, water, sewer, building and other
permits) required by Governmental Authorities or otherwise necessary for the use,
occupancy and operation of the Property and/or Improvements for their intended
purposes in accordance with all applicable Laws;




     (15) Intentionally Omitted;




     (16) Chattel Searches. UCC searches against Borrower or other owner
of the Mortgaged Property and advice from the Title Insurer to the effect that
searches of proper public records disclose no leases of personalty or financing
statements filed or recorded against the Mortgaged Property, Borrower or other
owner of any Mortgaged Property;




     (17) Intentionally Omitted; and




     (18) Additional Documentation. Such other approvals, opinions or
documents as Lender may reasonably request including, but not limited to, (i) a
current certified rent roll for the Mortgaged Property and tenant estoppel letters
for all Anchors, (ii) ground lessor estoppel certificates from the ground lessor
with respect to any ground leases encumbered by the Mortgage and (iii) current
financial statements of Guarantor showing a minimum net worth of $100,000,000 (the
“Net Worth Requirement”) and a minimum Unrestricted Cash and Cash Equivalents of
$10,000,000 (the “Liquidity Requirement”).



     Section 4.02. Conditions to Advances After the Initial Advance. In addition to the
Initial Advance, an amount of Loan proceeds (each such advance, an “Additional Advance”) shall be
made available to Borrower subject to the satisfaction of the following conditions:




     (a) Subject to the limitations set forth in Section 2.04 and Section 4.02(h) with
respect to any Additional Advance), the amount of each Additional Advance subsequent to the
Initial Advance shall be in the minimum amount of $100,000 (unless less than said amount is
available for disbursement pursuant to the terms hereof at the time of such Additional
Advance, in which case the amount of such subsequent advance shall be equal to such
remaining availability).




     (b) All conditions of Section 4.01 shall have been and remain satisfied as of the date
of such advances;




     (c) There shall exist no Default or Event of Default;




     (d) The representations and warranties made to Administrative Agent and Lenders
herein, in the other Loan Documents and in any other document, certificate or statement
executed or delivered to Administrative Agent or Lenders




29









 






in connection with the Loan shall be true and correct on and as of the date of
the advance with the same effect as if made on such date (except for the updated rent
roll);




     (e) Lender shall have received a Requisition, and, if required, a title continuation
report;




     (f) There shall have occurred no material adverse change in the condition or value of
the “Mortgaged Property”, as defined in the Mortgage;




     (g) Mortgagor shall furnish Administrative Agent with a statement, duly acknowledged,
of the amount due whether for principal or interest, on the Loan and whether any offsets,
counterclaims or defenses exist against the indebtedness secured hereby; and




     (h) The aggregate outstanding proceeds of the Loan, including the amount of the
advance being requested, shall not exceed the amount necessary to satisfy the Loan to Value
Test and the DSC Test for Additional Advances.



ARTICLE V




REPRESENTATIONS AND WARRANTIES




     Borrower and Guarantor represent and warrant to Administrative Agent and Lenders that:



     Section 5.01. Due Formation, Power and Authority. If it, the mortgagor or grantor
under the Mortgage (if different from Borrower), Guarantor or any general partner or member of any
of them is a corporation, partnership, venture, limited liability company or trust, each such
entity is duly organized, validly existing and in good standing under the Laws of the jurisdiction
of its formation, is qualified to do business (if required) and is in good standing in the
jurisdiction in which the Property is located, and has full power and authority to consummate the
transactions contemplated hereby and to execute, deliver and perform this Agreement and any other
Loan Document to which it is a party.



     Section 5.02. Legally Enforceable Agreements. Each Loan Document to which Borrower
or Guarantor is a party is a legal, valid and binding obligation of such party, enforceable against
Borrower or Guarantor, as the case may be, in accordance with its terms, except to the extent that
such enforcement may be limited by applicable bankruptcy, insolvency and other similar Laws
affecting creditors’ rights generally.



     Section 5.03. Financial Statements. Financial Statements have been heretofore
delivered to Lenders which are true, correct and current in all respects and which fairly present
the respective financial conditions of the subjects thereof as of the respective dates thereof; no
material adverse change has occurred in the financial conditions reflected therein since the
respective dates thereof and no borrowings (other than the



30









 







Loan) which might give rise to a lien or claim against the Mortgaged Property or proceeds of
the Loan have been made by Borrower or others since the dates thereof.



     Section 5.04. Compliance With Laws; Payment of Taxes. Borrower and Guarantor are in
compliance with, and the transactions contemplated hereby and by the other Loan Documents do not
and will not violate any provision of, or require any filing, registration, consent or approval
under, any Law presently in effect having applicability to Borrower or Guarantor; Borrower has
filed all tax returns (federal, state and local) required to be filed and has paid all taxes,
assessments and governmental charges and levies due and payable (including those in respect of the
Mortgaged Property), including interest and penalties.



     Section 5.05. Litigation. There are no actions, suits or proceedings pending or
threatened against or affecting it, Guarantor, the Mortgaged Property, the validity or
enforceability of the Mortgage or the priority of the lien thereof at law, in equity or before or
by any Governmental Authorities except actions, suits or proceedings which have been disclosed to
Administrative Agent and Lenders in writing and which are fully covered by insurance or would, if
adversely determined, not substantially impair the ability of Borrower or Guarantor to pay when due
any amounts which may become payable under the Notes or Guaranty or to otherwise pay and perform
their respective obligations in connection with the Loan; to Borrower’s knowledge, neither it nor
Guarantor is in default with respect to any order, writ, injunction, decree or demand of any court
or Governmental Authorities.



     Section 5.06. No Conflicts or Defaults. The consummation of the transactions
contemplated hereby and the performance hereof and of the other Loan Documents have not resulted
and will not result in any breach of, or constitute a default under, any mortgage, deed of trust,
lease, bank loan or credit agreement, corporate charter, by-laws, partnership agreement or other
instrument to which Borrower or Guarantor is a party or by which either of them may be bound or
affected.



     Section 5.07. Solvency. Borrower and Guarantor are, and upon consummation of the
transactions contemplated by this Agreement, the other Loan Documents and any other related
documents, will be, Solvent.



     Section 5.08. Governmental Regulation. Borrower is not subject to regulation under
the Investment Company Act of 1940 or any Law limiting its ability to incur indebtedness for money
borrowed as contemplated hereby.



     Section 5.09. Insurance. Borrower has in force, and has paid the premiums in respect
of, all of the insurance required by the Mortgage.



     Section 5.10. ERISA. Neither Borrower nor Guarantor nor any other Person, including
any fiduciary, has engaged in any prohibited transaction (as defined in Section 4975 of the Code or
Section 406 of ERISA) which could subject Borrower or Guarantor or any Person whom they have an
obligation to indemnify to any tax or penalty imposed under Section 4975 of the Code or Section 502
of ERISA; neither Borrower nor



31









 







Guarantor nor any ERISA Affiliate maintains, contributes to or has any liability with respect
to a Multiemployer Plan or any other plan subject to Title IV of ERISA; each Employee Benefit Plan
is administered in accordance with its terms and in compliance with all applicable Laws, including
any reporting requirements; each Pension Plan intending to qualify under Section 401(a) or 401(k)
of the Code does so qualify; there is no lien outstanding or security interest given in connection
with a Pension Plan; neither Borrower nor Guarantor nor any ERISA Affiliate has any liability with
respect to an accumulated funding deficiency (whether or not waived) under Section 412 of the Code
or Section 302 of ERISA; neither Borrower nor Guarantor has any liability for retiree medical or
death benefits (contingent or otherwise) other than as required by Section 4980B of the Code; and
no part of the funds to be used by Borrower or Guarantor in satisfaction of their respective
obligations under this Agreement and the other Loan Documents constitute “plan assets” of any
“employee benefit plan” within the meaning of ERISA or of any “plan” within the meaning of Section
4975(e)(1) of the Code, as interpreted by the Internal Revenue Service and the United States
Department of Labor in rules, regulations, releases or bulletins or as interpreted under applicable
case law.



     Section 5.11. Other Documents. The Major Leases and Premises Documents are
unmodified and in full force and effect, there are no defaults (or events which with notice or the
passage of time, or both, would constitute such a default) under any thereof and all conditions to
the effectiveness and continuing effectiveness thereof required to be satisfied as of the date
hereof have been satisfied.



     Section 5.12. No Defaults. There exists no Default or Event of Default.



     Section 5.13. Accuracy of Information; Full Disclosure. Neither this Agreement nor
any documents, financial statements, reports, notices, schedules, certificates, statements or other
writings furnished by or on behalf of Borrower or Guarantor to Lender in connection with the
negotiation of this Agreement or the other Loan Documents or the consummation of the transactions
contemplated hereby, or required herein or by the other Loan Documents to be furnished by or on
behalf of Borrower or Guarantor, contains any untrue or misleading statement of a material fact or
omits a material fact necessary to make the statements herein or therein not misleading; there is
no fact which Borrower has not disclosed to Administrative Agent and Lenders in writing which
materially affects adversely nor, so far as Borrower can now foresee, will materially affect
adversely any of the Mortgaged Property or the business affairs or financial condition of Borrower
or Guarantor, or the ability of Borrower or Guarantor to perform this Agreement and the other Loan
Documents.



     Section 5.14. Separate Tax and Zoning Lot. Each Mortgaged Property constitutes a
distinct parcel for purposes of zoning and of taxes, assessments and impositions (public or
private) and are not otherwise considered as part of a larger single lot for purposes of zoning or
of taxes, assessments or impositions (public or private).



     Section 5.15. The Improvements. There are no structural defects in the Improvements
or violations of any requirement of any Governmental Authorities with respect thereto; the use,
occupancy and operation of the Improvements comply with all



32









 







applicable permits and restrictive covenants affecting the Mortgaged Property, as well as with
the Premises Documents and with all zoning, building, environmental, ecological, landmark,
subdivision and other Laws, and all requirements for such use, occupancy and operation have been
satisfied; there exist a sufficient number of parking spaces necessary to satisfy the requirements
of the Premises Documents and any leases and all zoning and other applicable legal requirements
with respect to the Mortgaged Property, and all required landscaping, sidewalks and other
amenities, and all off-site improvements, related to the Improvements have been completed.



     Section 5.16. Utility Services. All utility services necessary for the use and
operation of the Improvements for their intended purposes are available and servicing the Property,
including water supply, storm and sanitary sewer, gas, electric power and telephone facilities.



     Section 5.17. Creation of Liens. It has entered into no contract or arrangement of
any kind the performance of which by the other party thereto would give rise to a lien on the
Mortgaged Property or any part thereof.



     Section 5.18. Roads. All roads necessary for the full utilization of the
Improvements for their intended purposes have been completed and dedicated to public use and
accepted by all appropriate Governmental Authorities.



     Section 5.19. Requisition as Reaffirmation. Each Requisition submitted to
Administrative Agent, and the receipt of the funds requested thereby, shall constitute an
affirmation by Borrower that the representations and warranties contained herein and in the other
Loan Documents remain true and correct as of the respective dates of such Requisitions.



     Section 5.20. Patriot Act.



     (a) As of the date hereof, none of the funds or other assets of Borrower or of any of its
direct or indirect owners (including Guarantor) constitute property of, or are beneficially owned,
directly or indirectly, by, any Person subject to trade restrictions under United States Law,
including those who are covered by the International Emergency Economic Powers Act, 50 U.S.C.
§§1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et
seq., and any Executive Orders or regulations promulgated thereunder (an “Embargoed
Person”) with the result that the investment in Borrower (whether directly or indirectly) is
prohibited by such applicable Law or the Loan is in violation of such Law; (ii) no Embargoed Person
has any interest of any nature whatsoever (whether directly or indirectly) in Borrower with the
result that the investment in Borrower (whether directly or indirectly) is prohibited by such
applicable Law or the Loan is in violation of such Law; and (iii) none of the funds of Borrower
have been derived from any unlawful activity with the result that the investment in Borrower
(whether directly or indirectly) is prohibited by such applicable Law or the Loan is in violation
of such Law.



33









 





     (b) Neither Borrower nor any of its direct or indirect owners (including Guarantor) is in
violation of the U.S. Federal Bank Secrecy Act, as amended, and its implementing regulations (31
CFR part 103), the Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 and the regulations promulgated
thereunder, any order issued with respect to anti-money laundering by the U.S. Department of the
Treasury’s Office of Foreign Assets Control (“OFAC”), or any other anti-money laundering Law.



     (c) Neither Borrower nor any if its direct or indirect owners (including Guarantor) is a
Person with whom United States Persons are restricted from doing business with under (a)
regulations issued by OFAC (including those persons and entities named on OFAC’s Specially
Designated Nationals and Blocked Persons list) or under any United States Law (including the
September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions With Persons Who
Commit, Threaten to Commit, or Support Terrorism) or (b) any other Law. Without limiting the
foregoing, Borrower is not presently funding its obligations hereunder with funds from any of the
Persons referred to in this paragraph (c).



     (d) Guarantor has joined in this Agreement, for the purposes, among other things, of joining
in the representations to Administrative Agent and Lenders in this Section 5.20.



ARTICLE VI




COVENANTS OF BORROWER




     Borrower covenants and agrees with Administrative Agent and Lenders that it will promptly:



     Section 6.01. Compliance with Laws; Payment of Taxes. Comply with all Laws
applicable to it or the Mortgaged Property, or any part thereof, such compliance to include,
without limitation, paying before the same become delinquent all taxes, assessments and
governmental charges imposed on it or the Mortgaged Property, or any part thereof, and promptly
furnish Administrative Agent with reports of any official searches made by Governmental Authorities
and any claims of violations thereof.



     Section 6.02. Leases and Premises Documents. Not enter into any Major Lease without
the prior written consent of Administrative Agent, not to be unreasonably withheld or delayed; and
deliver to Administrative Agent certified copies of all leases in respect of the Mortgaged Property
and all Premises Documents and all amendments to any thereof (in any case, whether executed before
or after the date hereof) together with (i) if requested by Administrative Agent, current financial
statements of the tenants thereunder or parties thereto as the case may be, and of the
guarantor(s), if any, of such tenants or parties and (ii) in the case of all Major Leases, a
notice-of-assignment letter in the form of EXHIBIT B; and keep all Premises Documents and, except
as may be permitted by the Mortgage, all leases in full force and effect.



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     Section 6.03. Administration Fee/Inspection Fee. During the term of the Loan,
Borrowers shall pay to Administrative Agent for its own account (and not for the pro rata benefit
of Lenders) an administration fee (the “Administration Fee”) in the amount set forth in the
Supplemental Fee Letter, payable in advance on the date hereof and on each anniversary of the date
hereof. Each payment of the Administration Fee shall be deemed earned in full upon payment.
Commencing on the first anniversary of the date hereof and on each anniversary thereafter during
the term of the Loan, deliver to Administrative Agent, for its own account, a non-refundable
administrative inspection fee (the “Inspection Fee”) in the amount set forth in the Supplemental
Fee Letter with respect to the costs associated with Lender’s annual inspection of the Property.



     Section 6.04. Continuing Accuracy of Representations and Warranties. Cause all of
the representations and warranties made to Administrative Agent or Lenders herein and in the other
Loan Documents to be continuously true and correct.



     Section 6.05. Covenants, Restrictions and Easements. Comply with all restrictions,
covenants and easements affecting the Mortgaged Property or the Improvements and cause the
satisfaction of all conditions hereof.



     Section 6.06. Financial Covenants. In no event shall Borrower permit (i) the Funding
Cap to exceed 65% of the appraised value of the Mortgaged Property (the “Loan to Value Test”) as
determined by an independent appraisal conducted at Borrower’s expense by an appraiser selected by
Administrative Agent, which appraisal shall be conclusive as to value absent manifest error,
provided, however, that, except for appraisals performed in connection with a re-calculation of the
Funding Cap under Section 2.04, Borrower shall not be obligated to pay for more than one (1)
appraisal per any twelve (12) consecutive month period so long as no Event of Default exists or
(ii) Net Operating Income to be less than 130% of debt service on the Outstanding Credit Amount
equal to the Funding Cap (the “DSC Test”). For purposes of determining compliance with the DSC
Test, Net Operating Income shall be calculated on a semi-annual basis using six months’ actual
figures and the projected figures for the next succeeding six months and debt service shall be
calculated based upon a loan in the Outstanding Credit Amount using an interest rate equal to the
greatest of (a) the highest actual interest rate then applicable hereunder; (b) the Treasury Rate
plus 225 basis points or (c) an interest rate equal to 8.0% and a (25) year equal payment self
liquidating amortization schedule, provided, however, that such non-compliance shall not constitute
an Event of Default under the Mortgage and hereunder if, within forty-five (45) days of the date
upon which Mortgagor receives written notice from Administrative Agent of Borrower’s non-compliance
thereof (the “Notice Date”), Mortgagor complies with the provisions of this Section 6.06, by either
(i) agreeing in writing to reduce the Funding Cap by an amount which would bring Borrower into
compliance with the DSC Test and the Loan to Value Test and, to the extent the Funding Cap as so
reduced would exceed the Outstanding Credit Amount, making a mandatory principal payment (or at
Administrative Agent’s option deliver cash collateral for any Letter of Credit outstanding) in the
amount of such excess such that, at no time, shall the Outstanding Credit Amount (excluding any
portion of a Letter of Credit which is secured by cash collateral) exceed the Funding Cap as
reduced from time to time, with Borrower paying all applicable



35









 







prepayment or other charges, if any, provided for herein or in the Note with respect to such
mandatory principal payment or (ii) delivering to Administrative Agent cash, a letter of credit
from a financial institution acceptable to Administrative Agent, or such other collateral as may be
acceptable to Lender in its sole discretion in an amount equal to the amount that would have been
required to have been prepaid pursuant to (i) above in order to cure such default. In the case of
Guarantor, Guarantor shall comply at all times with the Liquidity Requirement and the Net Worth
Requirement.



     Section 6.07. Payment of Costs. Pay all costs and expenses required for the
satisfaction of the conditions hereof, including, without limitation (i) all document and stamp
taxes, recording and filing expenses and fees and commissions lawfully due to brokers in connection
with the transactions contemplated hereby, (ii) any taxes, insurance premiums, liens, security
interests or other claims or charges against the Property or Improvements and (iii) all costs of
completion of the work to be performed by Borrower in space to be occupied in the Improvements
(including public space) to permit the lawful occupancy thereof for the purposes contemplated by
actual or prospective lessees or owners of such space as set forth in the individual leases,
subleases or purchase contracts thereof or in detailed work letters or other agreements or letters
of intent with respect thereto, or, in cases where there are no such leases, subleases, contracts,
work letters or other documents as aforesaid, as set forth in Borrower’s standard work letter or
the standard form of lease or contract, if any, required by paragraph (10) of Section 4.01(d), or,
in cases where none of the foregoing exists, to the level of building standard in accordance with
industry practices, as conclusively determined by the Engineering Consultant.



     Section 6.08. Brokers. Indemnify Administrative Agent and Lenders against claims of
brokers arising by reason of the execution hereof or the consummation of the transactions
contemplated hereby.



     Section 6.09. Correction of Defects. Upon demand of Administrative Agent or the
Engineering Consultant, correct any defects (including structural) in the Improvements.



     Section 6.10. Unused Fee. Borrower shall, during the term of the Loan, pay to
Administrative Agent for the account of each Lender a fee (the “Unused Fee”), computed on the daily
unused Individual Loan Commitment (i.e., that portion of the Individual Loan
Commitment, without reduction for the Special Holdback, which (x) is not outstanding hereunder and
(y) is not allocated to an outstanding Letter of Credit) of such Lender based on the Loan Amount
for each day at a rate per annum equal to the Unused Fee Rate, calculated on the basis of a year of
three hundred sixty (360) days for the actual number of days elapsed. The accrued Unused Fee shall
be due and payable quarterly in arrears on the first day of July, October, January and April of
each year commencing on January 1, 2007, and upon the Maturity Date (as stated, by acceleration or
otherwise) or earlier termination of the Loan.



     Section 6.11. Reporting and Miscellaneous Document Requirements. Furnish directly to
each Lender:



36









 






     (1) Semi-Annual Financial Statements of Borrower. On a semi-annual basis, as
soon as available and in any event within ninety (90) days after the end of each applicable
semi-annual period, Financial Statements of Borrower, in reasonable detail (including
detailed balance sheet, income statement, cash flow statement and one-year projections) and
stating in comparative form the respective figures for the corresponding date and period in
the prior semi-annual period;




     (2) Annual Financial Statements of Borrower. On a annual basis, as soon as
available and in any event within ninety (90) days after the end of each applicable annual
period, Financial Statements of Borrower, in reasonable detail (including detailed balance
sheet, income statement, cash flow statement and one-year projections) and stating in
comparative form the respective figures for the corresponding date and period in the prior
annual period;




     (3) Quarterly and Annual Financial Statements of Acadia Realty Trust. As soon
as available and in any event within one hundred twenty (120) days after the end of each
calendar quarter and Fiscal Year, Financial Statements of Acadia Realty Trust, a Maryland
real estate investment trust (“Sponsor”), which is the parent of Guarantor, as of the end
of and for such calendar quarter and Fiscal Year, in reasonable detail (including detailed
balance sheet, income statement, cash flow statement, and contingent liability schedule)
and stating in comparative form the respective figures for the corresponding date and
period in the prior Fiscal Year, audited (with respect to the annual financial statements
only) by BDO Seidman or one of the so-called “Big Four” accounting firms or another firm of
certified public accountants reasonably acceptable to Administrative Agent , provided that,
notwithstanding the foregoing, so long as Sponsor timely files 10Q and 10K reports with the
Securities and Exchange Commission, Sponsor shall have complied with this clause (3);




     (4) Covenant Compliance Certificates. Within sixty (60) days after the end of
each fiscal quarter, Guarantor shall submit to Lender a Covenant Compliance Certificate
certified by a principal financial or accounting officer or general partner, as the case
may be, in the Form of EXHIBIT E-1 hereto certifying, on the basis of Guarantor’s unaudited
financial statements, that Guarantor has met the Liquidity Requirement for the applicable
period. As soon as available and in any event within one hundred twenty (120) days after
the end of each Fiscal Year, Guarantor shall submit to Lender a Covenant Compliance
Certificate certified by a principal financial or accounting officer or general partner, as
the case may be, in the Form of EXHIBIT E-2 hereto certifying, on the basis of Guarantor’s
audited Financial Statements as of the end of and for such Fiscal Year, that Guarantor has
met the Net Worth Requirement and the Liquidity Requirement;




     (5) Notice of Litigation. Promptly after the commencement and knowledge
thereof, notice of all actions, suits, and proceedings before any court or arbitrator or
any Governmental Authority, affecting (i) Borrower which, if



37









 







determined adversely to Borrower are likely to result in a Material Adverse Change or
(ii) all or any portion of the Mortgaged Property under any Mortgage;




     (6) Notices of Defaults and Events of Default. As soon as possible and in any
event within ten (10) days after Borrower becomes aware of the occurrence of a Default or
any Event of Default, a written notice setting forth the details of such Default or Event
of Default and the action which is proposed to be taken with respect thereto;




     (7) Material Adverse Change. As soon as is practicable and in any event
within five (5) days after knowledge of the occurrence of any event or circumstance which
is likely to result in or has resulted in a Material Adverse Change, written notice
thereof;




     (8) Offices. Thirty (30) days’ prior written notice of any change in the
chief executive office or principal place of business of Borrower;




     (9) Environmental and Other Notices. As soon as possible and in any event
within ten (10) days after receipt, copies of (i) all Environmental Notices received by
Borrower which are not received in the ordinary course of business and which relate to any
Property or a situation which is likely to result in a Material Adverse Change and (ii) all
reports of any official searches made by any Governmental Authority having jurisdiction
over any Property or the Improvements thereon, and of any claims of violations thereof and,
on an annual basis, delivered with Borrower’s annual Financial Statements, a report from
Borrower regarding the status of the environmental matters discussed in Section 6.12;




     (10) Insurance Coverage. Promptly, such information concerning Borrower’s
insurance coverage as Administrative Agent may reasonably request;




     (11) Bankruptcy of Tenants. Promptly after becoming aware of the same,
written notice of the bankruptcy, insolvency or cessation of operations of any tenant in
the Improvements on any Property to which 5% or more of the aggregate minimum rent from
such Improvements is attributable;




     (12) Leasing Reports and Property Information. (i) Upon request by
Administrative Agent, but no more often than quarterly, an updated rent roll, leasing
report, and operating and cash statements for each Property and (ii) (ii) as soon as
available and in any event within ninety (90) days after the end of each Fiscal Year,
tenant sales report for each Property, to the extent Borrower is entitled to receive same
pursuant to the terms of the respective leases; and




     (13) General Information. Promptly, such other information respecting the
condition or operations, financial or otherwise, of Borrower, Guarantor or any Properties
of Borrower as Administrative Agent may from time to time reasonably request.



38









 





ARTICLE VII




ADMINISTRATIVE AGENT; RELATIONS AMONG LENDERS




     Section 7.01. Appointment, Powers and Immunities of Administrative Agent. Each
Lender hereby irrevocably appoints and authorizes Administrative Agent to act as its agent
hereunder and under any other Loan Document with such powers as are specifically delegated to
Administrative Agent by the terms of this Agreement and any other Loan Document, together with such
other powers as are reasonably incidental thereto. Administrative Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement and any other Loan Document or
required by Law, and shall not by reason of this Agreement be a fiduciary or trustee for any Lender
except to the extent that Administrative Agent acts as an agent with respect to the receipt or
payment of funds, nor shall Administrative Agent have any fiduciary duty to Borrower nor shall any
Lender have any fiduciary duty to Borrower or any other Lender. No implied covenants,
responsibilities, duties, obligations or liabilities shall be read into this Agreement or otherwise
exist against Administrative Agent. Neither Administrative Agent nor any of its directors,
officers, employees, agents, attorneys-in-fact or Affiliates shall be responsible to Lenders for
any recitals, statements, representations or warranties made by Borrower or any officer, partner or
official of Borrower or any other Person contained in this Agreement or any other Loan Document, or
in any certificate or other document or instrument referred to or provided for in, or received by
any of them under, this Agreement or any other Loan Document, or for the value, legality, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or any other document or instrument referred to or provided for herein or therein, for the
perfection or priority of any lien securing the obligations hereunder or thereunder or for any
failure by Borrower or any Guarantor to perform any of its obligations hereunder or thereunder.
Administrative Agent may employ agents and attorneys-in-fact and shall not be responsible, except
as to money or securities received by it or its authorized agents, for the negligence or misconduct
of any such agents or attorneys-in-fact selected by it with reasonable care. Neither
Administrative Agent nor any of its directors, officers, employees, agents, attorneys-in-fact or
Affiliates shall be liable or responsible for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or therewith, except for its
or their own gross negligence or willful misconduct.



     Section 7.02. Reliance by Administrative Agent. Administrative Agent shall be
entitled to rely upon any certification, notice or other communication (including any thereof by
telephone, telex, telegram or cable) believed by it to be genuine and correct and to have been
signed or sent by or on behalf of the proper Person or Persons, and upon advice and statements of
legal counsel, independent accountants and other experts selected by Administrative Agent.
Administrative Agent may deem and treat each Lender as the holder of its Note and interest in the
Loan for all purposes hereof and shall not be required to deal with any Person who has acquired a
Participation in the Loan from a Lender. As to any matters not expressly provided for by this
Agreement or any other Loan Document, Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, in accordance with instructions signed by the Required
Lenders,



39









 







and such instructions of the Required Lenders and any action taken or failure to act pursuant
thereto shall be binding on all of Lenders and any other holder of all or any portion of the Loan
or Participation therein.



     Section 7.03. Defaults. Administrative Agent shall not be deemed to have knowledge
of the occurrence of a Default or of an Event of Default unless Administrative Agent has actual
knowledge thereof or has received notice from a Lender or Borrower specifying such Default or Event
of Default and stating that such notice is a “Notice of Default.” In the event that Administrative
Agent has such actual knowledge or receives such a notice of the occurrence of a Default or Event
of Default, Administrative Agent shall give prompt notice thereof to Lenders. Administrative Agent
shall promptly send to each Lender a copy of any notice of a Default or Event of Default that
Administrative Agent sends to Borrower or Guarantor. Administrative Agent, following consultation
with Lenders, shall (subject to Section 7.07) take such action with respect to such Default or
Event of Default which is continuing, including with respect to the exercise of remedies or the
realization on, or operation or disposition of, any or all of the Mortgaged Property or any other
collateral for the Loan, as shall be directed by the Required Lenders; provided,
however, that, unless and until Administrative Agent shall have received such directions,
Administrative Agent may 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 interest of Lenders. In no event
shall Administrative Agent be required to take any such action which it determines would be
contrary to the Loan Documents or to Law. Each of Lenders acknowledges and agrees that no
individual Lender may separately enforce or exercise any of the provisions of any of the Loan
Documents (including, without limitation, the Notes) other than through Administrative Agent.



     Section 7.04. Rights of Administrative Agent as Lender. With respect to its Note and
interest in the Loan, Administrative Agent in its capacity as a Lender hereunder shall have the
same rights and powers hereunder as any other Lender and may exercise the same as though it were
not acting as Administrative Agent, and the terms “Lender” and “Lenders” shall include
Administrative Agent in its capacity as a Lender. Administrative Agent and its affiliates may
(without having to account therefor to any Lender) accept deposits from, lend money to (on a
secured or unsecured basis), and generally engage in any kind of banking, trust or other business
with, Borrower or Guarantor (and any affiliates of them) as if it were not acting as Administrative
Agent.



     Section 7.05. Sharing of Costs by Lenders; Indemnification of Administrative Agent.
Each Lender shall pay its ratable share, based on the respective outstanding principal balances
under its Note and the other Notes, of any expenses incurred (and not paid or reimbursed by
Borrower after demand for payment is made by Administrative Agent) by or on behalf of Lenders in
connection with any Default or Event of Default, including, without limitation, costs of
enforcement of the Loan Documents and any advances to pay taxes or insurance premiums, to complete
the Improvements or otherwise to preserve the lien of the Mortgage or to preserve or protect the
Mortgaged Property. In the event a Lender fails to pay its share of expenses as aforesaid, and all
or a portion of such unpaid amount is paid by Administrative Agent and/or one or more of the other
Lenders, then the defaulting Lender shall reimburse Administrative Agent and/or



40









 







the other Lender(s) for the portion of such unpaid amount paid by it or them, as the case may
be, together with interest thereon at the Prime Based Rate from the date of payment by
Administrative Agent and/or the other Lender(s). In addition, each Lender agrees to reimburse and
indemnify Administrative Agent (to the extent it is not paid by on or behalf of Borrower, after
demand for payment is made by Administrative Agent, under Section 8.13 or under the applicable
provisions of any other Loan Document, but without limiting the obligation of Borrower under said
Section 8.13 or such provisions), for such Lender’s ratable share, based upon the respective
outstanding principal balances under its Note and the other Notes, of any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted
against Administrative Agent in any way relating to or arising out of this Agreement, any other
Loan Document or any other documents contemplated by or referred to herein or the transactions
contemplated hereby or thereby (including, without limitation, the costs and expenses which
Borrower is obligated to pay under Section 8.13 or under the applicable provisions of any other
Loan Document) or the enforcement of any of the terms hereof or thereof or of any such other
documents or instruments; provided, however, that no Lender shall be liable for (i)
any of the foregoing to the extent they arise from the gross negligence or willful misconduct of
the party to be indemnified or (ii) any loss of principal or interest with respect to
Administrative Agent’s Note or interest in the Loan.



     Section 7.06. Non-Reliance on Administrative Agent and Other Lenders. Each Lender
acknowledges that it has, independently and without reliance on Administrative Agent or any other
Lender, and based on such documents and information as it has deemed appropriate, made its own
analysis of the collateral for the Loan and of the credit of Borrower and Guarantor, and its own
decision to enter into this Agreement, and that it will, independently and without reliance upon
Administrative Agent or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own analysis and decisions in taking or not
taking action under this Agreement or any other Loan Document. Administrative Agent shall not be
required to keep itself informed as to the performance or observance by Borrower of this Agreement
or any other Loan Document or any other document referred to or provided for herein or therein or
to inspect the properties (including, without limitation, the Properties) or books of Borrower.
Except for notices, reports and other documents and information expressly required to be furnished
to Lenders by Administrative Agent hereunder, Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information concerning the affairs,
financial condition or business of Borrower or Guarantor (or any Affiliate of them) which may come
into the possession of Administrative Agent or any of its Affiliates. Administrative Agent shall
not be required to file this Agreement, any other Loan Document or any document or instrument
referred to herein or therein, for record or give notice of this Agreement, any other Loan Document
or any document or instrument referred to herein or therein, to anyone.



     Section 7.07. Failure of Administrative Agent to Act. Except for action expressly
required of Administrative Agent hereunder, Administrative Agent shall in all cases be fully
justified in failing or refusing to act hereunder unless it shall have received further assurances
(which may include cash collateral) of the indemnification obligations



41









 







of Lenders under Section 7.05 in respect of any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such action. If any indemnity
furnished to Administrative Agent for any purpose shall, in the opinion of Administrative Agent, be
insufficient or become impaired, Administrative Agent may call for additional indemnity and cease,
or not commence, the action indemnified against until such additional indemnity is furnished.



     Section 7.08. Resignation or Removal of Administrative Agent. Administrative Agent
may resign on at least thirty (30) days’ written notice to Lenders and Borrower or upon the
occurrence of an Event of Default. Administrative Agent may be removed at any time with cause by
the Required Lenders, provided that Borrower and the other Lenders shall be promptly notified
thereof. Upon such resignation or removal of Administrative Agent, the Required Lenders shall have
the right to appoint a successor Administrative Agent, which successor Administrative Agent shall
(provided there exists no Event of Default) be subject to Borrower’s approval, such approval not to
be unreasonably withheld or delayed. If no successor Administrative Agent shall have been so
appointed by the Required Lenders, and shall have accepted such appointment, within twenty (20)
days after the resignation or the Required Lenders’ removal of the retiring Administrative Agent,
then the retiring Administrative Agent may, on behalf of Lenders, appoint a successor
Administrative Agent, which shall be one of Lenders, within ten (10) days. The Required Lenders or
the retiring Administrative Agent, as the case may be, shall upon the appointment of a successor
Administrative Agent promptly so notify Borrower and the other Lenders. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder. After any retiring Administrative
Agent’s resignation or removal hereunder as Administrative Agent, the provisions of this Article
VII shall continue in effect for its benefit in respect of any actions taken or omitted to be taken
by it while it was acting as Administrative Agent. The annual Administration Fee paid to the
retiring Administrative Agent shall be deemed earned by such retiring Administrative Agent only to
the extent of the actual days elapsed in the year to which such Administration Fee relates, and
upon appointment of a successor Administrative Agent, the retiring Administrative Agent shall pay
to such successor a pro-rata portion of such yearly Administration Fee based upon the number of
days remaining in such year.



     Section 7.09. Amendments Concerning Agency Function. Notwithstanding anything to the
contrary contained in this Agreement, Administrative Agent shall not be bound by any waiver,
amendment, supplement or modification of this Agreement or any other Loan Document which affects
its duties, rights, and/or function hereunder or thereunder unless it shall have given its prior
written consent thereto.



     Section 7.10. Liability of Administrative Agent. Administrative Agent shall not have
any liabilities or responsibilities to Borrower on account of the failure of any Lender to perform
its obligations hereunder or to any Lender on account of the failure of Borrower to perform its
obligations hereunder or under any other Loan Document.



42









 





     Section 7.11. Transfer of Agency Function. Without the consent of Borrower or any
Lender, Administrative Agent may at any time or from time to time transfer its functions as
Administrative Agent hereunder to any of its offices wherever located in the United States,
provided that Administrative Agent shall promptly notify Borrower and Lenders thereof.



     Section 7.12. Non-Receipt of Funds by Administrative Agent; Adjustments.



     (a) Unless Administrative Agent shall have received notice from a Lender or Borrower (either
one as appropriate being the “Payor”) prior to the date on which such Lender is to make payment
hereunder to Administrative Agent of Loan proceeds or Borrower is to make payment to Administrative
Agent, as the case may be (either such payment being a “Required Payment”), which notice shall be
effective upon receipt, that the Payor will not make the Required Payment in full to Administrative
Agent, Administrative Agent may assume that the Required Payment has been made in full to
Administrative Agent on such date, and Administrative Agent in its sole discretion may, but shall
not be obligated to, in reliance upon such assumption, make the amount thereof available to the
intended recipient on such date. If and to the extent the Payor shall not have in fact so made the
Required Payment in full to Administrative Agent, the recipient of such payment shall repay to
Administrative Agent forthwith on demand such amount made available to it together with interest
thereon, for each day from the date such amount was so made available by Administrative Agent until
the date Administrative Agent recovers such amount, at the Federal Funds Rate.



     (b) If, after Administrative Agent has paid each Lender’s share of any payment received or
applied by Administrative Agent in respect of the Loan, that payment is rescinded or must otherwise
be returned or paid over by Administrative Agent, whether pursuant to any bankruptcy or insolvency
Law, sharing of payments clause of any loan agreement or otherwise, such Lender shall, at
Administrative Agent’s request, promptly return its share of such payment or application to
Administrative Agent, together with such Lender’s proportionate share of any interest or other
amount required to be paid by Administrative Agent with respect to such payment or application. In
addition, if a court of competent jurisdiction shall adjudge that any amount received and
distributed by Administrative Agent is to be repaid, each Person to whom any such distribution
shall have been made shall either repay to Administrative Agent its share of the amount so adjudged
to be repaid or shall pay over the same in such manner and to such Persons as shall be determined
by such court.



     Section 7.13. Withholding Taxes. Each Lender represents that it is entitled to
receive any payments to be made to it hereunder without the withholding of any tax and will furnish
to Administrative Agent such forms, certifications, statements and other documents as
Administrative Agent may reasonably request from time to time to evidence such Lender’s exemption
from the withholding of any tax imposed by any jurisdiction or to enable Administrative Agent to
comply with any applicable Laws relating thereto. Without limiting the effect of the foregoing, if
any Lender is not created or organized under the Laws of the United States or any state thereof,
such Lender will furnish to Administrative Agent Form W-8ECI or Form W-8BEN of the U.S. Internal



43









 







Revenue Service, or such other forms, certifications, statements or documents, duly executed
and completed by such Lender, as evidence of such Lender’s complete exemption from the withholding
of United States tax with respect thereto. Administrative Agent shall not be obligated to make any
payments hereunder to such Lender in respect of the Loan until such Lender shall have furnished to
Administrative Agent the requested form, certification, statement or document.



     Section 7.14. Sharing of Payments among Lenders. If a Lender shall obtain payment of
any principal of its Note or of interest thereon through the exercise of any right of setoff,
banker’s lien or counterclaim, or by any other means (including direct payment), and such payment
results in such Lender receiving a greater payment than it would have been entitled to had such
payment been paid directly to Administrative Agent for disbursement to Lenders, then such Lender
shall promptly purchase for cash from the other Lenders Participations in the Loan in such amounts,
and make such other adjustments from time to time as shall be equitable, to the end that all
Lenders shall share ratably the benefit of such payment. To such end Lenders shall make
appropriate adjustments among themselves (by the resale of Participations sold or otherwise) if
such payment is rescinded or must otherwise be restored.



     Section 7.15. Possession of Documents. Each Lender shall maintain possession of its
own Note. Administrative Agent shall hold all other Loan Documents and related documents in its
possession and maintain separate records and accounts with respect to the Loan, reflecting the
interests of Lenders in the Loan, and shall permit Lenders and their representatives access at all
reasonable times to inspect such Loan Documents, related documents, records and accounts.



     Section 7.16. Effect of a Lender’s Failure to Make an Advance. In the event any
Lender fails for any reason to fund the portion it is required to fund of any advance of Loan
proceeds by 3:00 p.m. on the second Business Day after the date established by Administrative Agent
as the date such advance is to be made, such Lender shall be a “Delinquent Lender” for all purposes
hereunder until and unless such delinquency is cured in accordance with the terms of and by the
time permitted under Section 7.17, and the following provisions shall apply:




     (a) Administrative Agent shall notify (such notice being referred to as the
“Delinquency Notice”) each Lender and Borrower of any Lender’s failure to fund. Each
Non-Delinquent Lender shall have the right, but in no event or under any circumstance the
obligation, to fund such Delinquent Lender’s portion of such advance, provided that, within
twenty (20) days of the date of the Delinquency Notice (the “Election Period”), such
Non-Delinquent Lender or Lenders (each such Lender, an “Electing Lender”) irrevocably
commit(s) by notice in writing (an “Election Notice”) to Administrative Agent, the other
Lenders and Borrower to fund the Delinquent Lender’s portion of the advance that is the
subject of the delinquency and to assume the Delinquent Lender’s obligations with respect
to the advancing of the entire undisbursed portion of the Delinquent Lender’s Individual
Loan Commitment (such entire undisbursed portion of the Delinquent Lender’s Individual Loan
Commitment, including its portion of the advance that is the




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subject of the delinquency, the “Delinquency Amount”). If Administrative Agent
receives more than one Election Notice within the Election Period, then the Electing
Lenders sending such notices shall be deemed to have committed to fund ratable shares of
the Delinquency Amount based upon the amounts of their respective Individual Loan
Commitments. If there are one or more Electing Lenders and the Delinquent Lender fails to
cure during the Election Period as provided in Section 7.17, then upon the expiration of
the Election Period, each Electing Lender’s Individual Loan Commitment shall be
automatically increased by the Delinquency Amount (if there is only one Electing Lender) or
such Electing Lender’s ratable share, determined as aforesaid, of the Delinquency Amount
(if there are two or more Electing Lenders), and the Delinquent Lender’s Individual Loan
Commitment shall automatically be reduced by the Delinquency Amount. Administrative Agent
shall thereupon notify Borrower and each Lender of (i) the adjusted amounts of the
Individual Loan Commitments and (ii) if the advance that was the subject of the delinquency
was not made pursuant to Section 7.12 or was refunded by Borrower pursuant to paragraph (e)
of this Section, the rescheduled date of such advance (which shall be no sooner than three
(3) Business Days after such notice). In the event Administrative Agent shall have funded,
pursuant to Section 7.12, the entire advance that was the subject of the delinquency
(including the Delinquent Lender’s portion), and Borrower shall not have refunded such
advance pursuant to paragraph (e) of this Section, the Electing Lender(s) shall remit to
Administrative Agent the Delinquent Lender’s portion of the advance, or their ratable shares thereof, as the case may be, within three (3) Business Days of the notice provided
for in the immediately preceding sentence, and Administrative Agent shall reimburse itself
from such funds for making the Delinquent Lender’s portion of the advance. Notwithstanding
anything to the contrary contained herein, if Administrative Agent advances its own funds
in respect of a Delinquent Lender’s portion of an advance, Administrative Agent shall be
entitled to the interest on the portion of the Principal Amount represented thereby, from
the date Administrative Agent makes such advance until the date it is reimbursed therefor.




     (b) In connection with the adjustment of the amounts of the Individual Loan
Commitments of the Delinquent Lender and Electing Lender(s) upon the expiration of the
Election Period as aforesaid, Borrower covenants that it shall, promptly following the
request of the Electing Lender(s), execute and deliver to each Electing Lender and the
Delinquent Lender substitute notes substantially in the form of EXHIBIT D and stating:
“This Note is a substitute note as contemplated by Section 7.16 of the Loan Agreement; it
replaces and is in lieu of that certain note made by Maker dated [date of Note] to the
order of [Lender] in the principal sum of [Lender’s original Individual Loan Commitment].”
Such substitute notes shall be in amounts equal to such Lenders’ respective Individual Loan
Commitments, as adjusted. All such substitute notes shall constitute “Notes” and the
obligations evidenced by such substitute notes shall be secured by the Mortgage. In
connection with Borrower’s execution of substitute notes as aforesaid, Borrower shall
deliver to Administrative Agent evidence, satisfactory to Administrative Agent, of all
requisite partnership, corporate or other action to



45









 







authorize Borrower’s execution and delivery of the substitute notes and any related
documents. The execution and delivery of substitute notes as required above shall be a
condition precedent to any further advances of Loan proceeds. Upon receipt of its
substitute note, the Electing Lender and the Delinquent Lender will return to Borrower
their notes that were replaced, provided that the delivery of a substitute note to
the Delinquent Lender pursuant to this Section 7.16 shall operate to void and replace the
note previously held by the Delinquent Lender regardless of whether the Delinquent Lender
returns same as required hereby. Borrower, Administrative Agent and Lenders shall execute
such modifications to the Loan Documents as shall, in the reasonable judgment of
Administrative Agent, be necessary or desirable in connection with the adjustment of the
amounts of Individual Loan Commitments in accordance with the foregoing provisions of this
Section.




     (c) In the event that no Lender elects to commit to fund the Delinquency Amount within
the Election Period as provided in paragraph (a) of this Section, Administrative Agent
shall, upon the expiration of the Election Period, so notify Borrower and each Lender and
the provisions of Section 2.15 shall apply.




     (d) Subject to a Delinquent Lender’s right to cure as provided in Section 7.17, but
notwithstanding anything else to the contrary contained in this Agreement, the Delinquent
Lender’s interest in, and any and all amounts due to a Delinquent Lender under, the Loan
Documents (including, without limitation, all principal, interest, fees and expenses) shall
be subordinate in lien priority and to the repayment of all amounts (including, without
limitation, interest) then or thereafter due or to become due to the Non-Delinquent Lenders
under the Loan Documents (including future advances), and the Delinquent Lender thereafter
shall have no right to participate in any discussions among and/or decisions by Lenders
hereunder and/or under the other Loan Documents. Further, any Delinquent Lender shall be
bound by any amendment to, or waiver of, any provision of, or any action taken or omitted
to be taken by Administrative Agent and/or the Non-Delinquent Lenders under, any Loan
Document which is made subsequent to the Delinquent Lender’s becoming a Delinquent Lender.




     (e) If, pursuant to the operation of Section 7.12, an advance of Loan proceeds is made
without Administrative Agent’s receipt of a Delinquent Lender’s portion thereof, Borrower
shall, upon demand of Administrative Agent, refund the entire such advance to
Administrative Agent. Borrower’s failure to do so within ten (10) days of such demand
shall, notwithstanding anything to the contrary contained herein or in the Mortgage,
constitute an Event of Default under the Mortgage. Upon its receipt of such funds from
Borrower, Administrative Agent shall promptly remit to each Non-Delinquent Lender its
appropriate share thereof.



     Section 7.17. Cure by Delinquent Lender. A Delinquent Lender may cure a delinquency
arising out of its failure to fund its required portion of any advance if, within the Election
Period, it remits to Administrative Agent its required portion of such



46









 







advance (together with interest thereon at the Default Rate from the date such advance was to
have been made if such advance was made by Administrative Agent and not refunded by Borrower
pursuant to paragraph (e) of Section 7.16), in which event Administrative Agent shall so notify
Borrower and the Non-Delinquent Lenders (i) of its receipt of such funds and (ii)(A) if the advance
that was the subject of the delinquency shall not have been made (or shall have been refunded by
Borrower pursuant to paragraph (e) of Section 7.16), of the rescheduled date of the advance (which
shall be no sooner then three (3) Business Days after such notice) or (B) if Administrative Agent
shall have funded the entire advance that was the subject of the delinquency (including the
Delinquent Lender’s portion) and Borrower shall not have refunded such advance pursuant to
paragraph (e) of Section 7.16, of its intention to reimburse itself from funds received from the
Delinquent Lender (which reimbursement is hereby authorized) for funding the Delinquent Lender’s
required portion of the advance. In the event any Delinquent Lender cures a delinquency prior to
the expiration of the Election Period (or thereafter with the consent of all of the Non-Delinquent
Lenders), such Delinquent Lender nonetheless shall be bound by any amendment to or waiver of any
provision of, or any action taken or omitted to be taken by Administrative Agent and/or the
Non-Delinquent Lenders under, any Loan Document which is made subsequent to that Lender’s becoming
a Delinquent Lender and prior to its curing the delinquency as provided in this Section, provided
that such amendment or waiver of action was taken in accordance with the provisions of this
Agreement. A Delinquent Lender shall have absolutely no right to cure any delinquency after the
expiration of the Election Period unless all Non-Delinquent Lenders in their sole discretion elect
to permit such cure.



     Section 7.18. Delinquent Lender Not Excused. Nothing contained in Sections 7.16 or
7.17 shall release or in any way limit a Delinquent Lender’s obligations as a Lender hereunder
and/or under any other of the Loan Documents. Further, a Delinquent Lender shall indemnify and
hold harmless Administrative Agent, each of the Non-Delinquent Lenders and Borrower from any claim,
loss, or costs incurred by any of them as a result of a Delinquent Lender’s failure to comply with
the requirements of this Agreement, including, without limitation, any and all additional losses,
damages, costs and expenses (including, without limitation, attorneys’ fees) incurred by
Administrative Agent and any Lender as a result of and/or in connection with (i) a Non-Delinquent
Lender’s acting as an Electing Lender, (ii) any enforcement action brought by Administrative Agent
against a Delinquent Lender, and (iii) any action brought against Administrative Agent and/or
Lenders. The indemnification provided above shall survive any termination of this Agreement.



     Section 7.19. Notices Regarding Delinquent Lender. Notices by Administrative Agent
or Lenders pursuant to Sections 7.16 or 7.17 may be by telephone (to be promptly confirmed in
writing).



     Section 7.20. Replacement Lender. In the event any Lender becomes a Delinquent
Lender and none of the other Lenders elects to be an Electing Lender pursuant to Section 7.16,
Borrower shall have the right, provided there exists no Default or Event of Default, to cause
another financial institution, reasonably acceptable to (x) the Required Lenders if such
institution is not an Eligible Assignee or (y) Administrative



47









 







Agent if such institution is an Eligible Assignee, to assume the Delinquent Lender’s
obligations with respect to the Delinquency Amount on the then-existing terms and conditions of the
Loan Documents (such replacement institution, a “Replacement Lender”). Such assumption shall be
pursuant to a written instrument reasonably satisfactory to Administrative Agent. Upon such
assumption, the Replacement Lender shall become a “Lender” for all purposes hereunder, with an
Individual Loan Commitment in an amount equal to the Delinquency Amount, and the Delinquent
Lender’s Individual Loan Commitment shall automatically be reduced by the Delinquency Amount. In
connection with the foregoing, Borrower shall execute and deliver to the Replacement Lender and the
Delinquent Lender substitute notes substantially in the form of EXHIBIT D and stating: “This Note
is a substitute note as contemplated by Section 7.20 of the Loan Agreement; it replaces and is in
lieu of that certain note made by Maker dated [date of Note] to the order of [Delinquent Lender] in
the principal sum of [Delinquent Lender’s original Individual Loan Commitment].” Such substitute
notes shall be in amounts equal to, in the case of the Replacement Lender’s note, the Delinquency
Amount and, in the case of the Delinquent Lender’s note, its Individual Loan Commitment, as reduced
as aforesaid. Such substitute notes shall constitute “Notes” and the obligations evidenced by such
substitute notes shall be secured by the Mortgage. In connection with Borrower’s execution of
substitute notes as aforesaid, Borrower shall deliver to Administrative Agent evidence,
satisfactory to Administrative Agent, of all requisite partnership/corporate action to authorize
Borrower’s execution and delivery of the substitute notes and any related documents. Upon delivery
of the foregoing substitute note(s), each Delinquent Lender shall return to Borrower its note which
was replaced, provided that the delivery of a substitute note to the Delinquent Lender
pursuant to this Section 7.20 shall operate to void and replace the note previously held by the
Delinquent Lender regardless of whether Delinquent Lender returns same as required hereby.



     Borrower, Administrative Agent and Lenders shall execute such modifications to the Loan
Documents as shall, in the reasonable judgment of Administrative Agent, be necessary or desirable
in connection with the substitution of Lenders in accordance with the foregoing provisions of this
Section.



     Lenders shall reasonably cooperate with Borrower’s attempts to obtain a Replacement Lender,
but they shall not be obligated to modify the Loan Documents in connection therewith, other than
modifications pursuant to the immediately preceding paragraph or modifications which are favorable
to Lenders.



ARTICLE VIII




GENERAL CONDITIONS AND PROVISIONS




     Section 8.01. Disbursement Not Waiver. The disbursement by Lenders of the Loan made
prior to or without the fulfillment by Borrower of all of the conditions precedent thereto, whether
or not known to Lenders, shall not constitute a waiver by Lenders of the requirement that all
conditions, including the non-performed conditions, shall be satisfied.



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     Section 8.02. No Third-Party Beneficiaries. This Agreement is solely for the benefit
of Administrative Agent, Lenders and Borrower. All conditions of the obligations of Lenders
hereunder are imposed solely and exclusively for the benefit of Lenders and may be freely waived or
modified in whole or in part by Lenders at any time if in their sole discretion it deems it
advisable to do so, and no person other than Borrower (provided, however, that all
conditions have been satisfied) shall have standing to require Lenders to disburse the Loan or to
be a beneficiary of this Agreement.



     Section 8.03. Documentation Etc. Satisfactory. All documentation and proceedings
deemed by Administrative Agent or Administrative Agent’s Counsel to be necessary or required in
connection herewith and the documents relating hereto shall be subject to the prior approval of,
and satisfactory to, both of them as to form and substance. In addition, the Persons responsible
for the execution and delivery of, and signatories to, all of such documentation, shall be
acceptable to, and subject to the approval of, Administrative Agent and Administrative Agent’s
Counsel. Administrative Agent or Administrative Agent’s Counsel shall receive copies, certified if
requested by either of them, of all documents which they may require in connection with the
transactions contemplated hereby.



     Section 8.04. Lender’s Determination Conclusive. Administrative Agent shall, at all
times, be free to independently establish to its satisfaction and in its absolute discretion the
existence or nonexistence of any fact or facts the existence or nonexistence of which is a
condition hereof.



     Section 8.05. Notices. Except as expressly provided otherwise, all notices, demands,
consents, approvals and statements required or permitted hereunder shall be in writing and shall be
deemed to have been sufficiently given or served for all purposes when presented personally, three
(3) days after mailing by registered or certified mail, postage prepaid, or one (1) day after
delivery to a nationally recognized overnight courier service providing evidence of the date of
delivery, addressed to a party at its address on the signature page hereof or of the applicable
Assignment and Assumption Agreement, or at such other address of which a party shall have notified
the party giving such notice in writing in accordance with the foregoing requirements. Notices
validly given to any Borrower shall be deemed validly given to all Borrowers and notices from any
Borrower shall be deemed given by all Borrowers. Notwithstanding anything to the contrary
contained herein, in the event of separate notices received from less than all Borrowers which are
inconsistent, Administrative Agent may, in its discretion, (i) elect to treat any or all
inconsistent provisions of such notices as null and void and/or (ii) determine which of such
inconsistent provisions shall be considered valid hereunder.



     Section 8.06. Amendments and Waivers. No amendment or material waiver of any
provision of this Agreement or any other Loan Document, nor consent to any material departure by
Borrower or any Guarantor therefrom, shall in any event be effective unless the same shall be in
writing and signed by the party against whom such amendment, waiver or consent is sought to be
enforced (it being understood, however, that the signatures of the Required Lenders and, solely for
purposes of its acknowledgement thereof, Administrative Agent, shall be sufficient to bind Lenders
to



49









 







any such amendment, waiver or consent), and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in writing and signed by all
Lenders, do any of the following: (i) reduce the principal of, or interest on, the Notes or any
fees due hereunder or any other amount due hereunder or under any other Loan Document; (ii)
postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees due
hereunder or under any other Loan Document; (iii) change the definition of Required Lenders; (iv)
release any material portion of the Mortgaged Property or other collateral for the Loan other than
in accordance with the Loan Documents; (v) amend this Section or any other provision requiring the
consent of all Lenders; (vi) release, in whole or in part, any Guarantor other than in accordance
with the Loan Documents; or (vii) increase the Loan Amount. Without limiting the foregoing,
acceptance by Administrative Agent or Lenders of any sum required to be paid pursuant hereto or any
other Loan Document, after its due date, or in an amount less than the sum then due, shall not
constitute a waiver by Administrative Agent or Lenders of their right to require prompt payment
when due of all other such sums or to declare a default or to exercise such other rights provided
herein or in the other Loan Documents for such late or reduced payment.



     All communications from Administrative Agent to Lenders requesting Lenders’ determination,
consent, approval or disapproval (i) shall be given in the form of a written notice to each Lender,
(ii) shall be accompanied by or include a description or copy of the matter or thing as to which
such determination, approval, consent or disapproval is requested and (iii) shall include
Administrative Agent’s recommended course of action or determination in respect thereof. Each
Lender shall reply promptly, but in any event within ten (10) Business Days (or five (5) Business
Days with respect to any decision to accelerate or stop acceleration of the Loan) after receipt of
the request therefor by Administrative Agent (the “Lender Reply Period”). Unless a Lender shall
give written notice to Administrative Agent that it objects to the recommendation or determination
of Administrative Agent (together with a written explanation of the reasons behind such objection)
within the Lender Reply Period, such Lender shall be deemed to have approved or consented to such
recommendation or determination.



     Section 8.07. Assignment; Participation. Any Non-Delinquent Lender may at any time
grant to one or more banks or other institutions not affiliated with Borrower or Guarantor (each a
“Participant”) participating interests in its Pro Rata Share of the Loan (the “Participations”).
In the event of any such grant by a Lender of a Participation to a Participant, such Lender shall
remain responsible for the performance of its obligations hereunder, and Borrower and
Administrative Agent shall continue to deal solely and directly with such Lender in connection with
such Lender’s rights and obligations hereunder. Any agreement pursuant to which any Lender may
grant a Participation shall provide that such Lender shall retain the sole right and responsibility
to enforce the obligations of Borrower hereunder and under any other Loan Document, including,
without limitation, the right to approve any amendment, modification or waiver of any provision of
this Agreement or any other Loan Document; provided that such participation agreement may
provide that such Lender will not agree to any modification,



50









 







amendment or waiver described in clauses (i) through (vii) of Section 8.06 without the consent
of the Participant.



     Upon request by Borrower, each Lender agrees to provide Borrower with notice of all
Participations sold by such Lender. Borrower agrees to provide all assistance reasonably requested
by a Lender to enable such Lender to sell Participations as aforesaid, or make assignments of its
interest in the Loan as hereinafter provided in this Section.



     A Lender may at any time assign to any Eligible Assignee not affiliated with Borrower or
Guarantor with the consent of Administrative Agent, which consents shall not be unreasonably
withheld or delayed (such assignee, a “Consented Assignee”), or to one or more banks or other
institutions which are majority owned subsidiaries of a Lender or of the parent of a Lender (each
Consented Assignee or subsidiary bank or institution, an “Assignee”) all or a proportionate part of
all of its rights and obligations under this Agreement and its Note, and such Assignee shall assume
rights and obligations, pursuant to an Assignment and Assumption Agreement executed by such
Assignee and the assigning Lender, provided that, after giving effect to such assignment, in each
case, the Assignee’s portion of the Loan and, in the case of a partial assignment of a Lender’s
interest, the assigning Lender’s portion of the Loan will each be equal to or greater than
$5,000,000. Upon (i) execution and delivery of such instrument, (ii) payment by such Assignee to
the assigning Lender of an amount equal to the purchase price agreed between such Lender and such
Assignee and (iii) payment by such Assignee to Administrative Agent of a fee, for Administrative
Agent’s own account, in the amount of $3,500, such Assignee shall be a party to this Agreement and
shall have all the rights and obligations of a Lender as set forth in such Assignment and
Assumption Agreement, and the assigning Lender shall be released from its obligations hereunder to
a corresponding extent, and no further consent or action by any party shall be required. Upon the
consummation of any assignment pursuant to this paragraph, substitute notes, in the form of EXHIBIT
D, shall be issued to the assigning Lender (in the case of a partial assignment) and Assignee by
Borrower, in exchange for the return of the assigning Lender’s original Note. All such substitute
notes shall constitute “Notes” and the obligations evidenced by such substitute notes shall
constitute obligations secured by the Mortgage. In connection with Borrower’s execution of
substitute notes as aforesaid, Borrower shall deliver to Administrative Agent such evidence of the
due authorization, execution and delivery of the substitute notes and any related documents as
Administrative Agent may reasonably request. If the Assignee is not incorporated under the Laws of
the United States or a state thereof, it shall, prior to the first date on which interest or fees
are payable hereunder for its account, deliver to Borrower and Administrative Agent certification
as to exemption from deduction or withholding of any United States federal income taxes in
accordance with Section 7.13.



     Borrower, Administrative Agent and Lenders shall execute such modifications to the Loan
Documents as shall, in the reasonable judgment of Administrative Agent, be necessary or desirable
in connection with assignments in accordance with the foregoing provisions of this Section.



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     Any Lender may at any time assign all or any portion of its rights under this Agreement and
its Note to a Federal Reserve Bank. No such assignment shall release the transferor Lender from
its obligations hereunder.



     Borrower recognizes that in connection with a Lender’s selling of Participations or making of
assignments, any or all documentation, financial statements, appraisals and other data, or copies
thereof, relevant to Borrower, Guarantor or the Loan may be exhibited to and retained by any such
Participant or Assignee or prospective Participant or Assignee.



     Section 8.08. Setoff. In addition to (and without limitation of) any right of
setoff, bankers’ lien or counterclaim Administrative Agent or any Lender may otherwise have,
Administrative Agent and each Lender shall be entitled, but only with the prior consent of
Administrative Agent, to offset balances (general or special, time or demand, provisional or final)
held by it for the account of Borrower at any of Administrative Agent’s or such Lender’s offices
against any amount payable by Borrower to Administrative Agent or such Lender hereunder or under
any other Loan Document which is not paid when due (regardless of whether such balances are then
due to Borrower), in which case it shall promptly notify Borrower and (in the case of a Lender)
Administrative Agent thereof; provided, however, that Administrative Agent’s or
such Lender’s failure to give such notice shall not affect the validity thereof. Payments by
Borrower hereunder or under the other Loan Documents shall be made without setoff or counterclaim.



     Section 8.09. Successors and Assigns. Except as herein provided, this Agreement
shall be binding upon and inure to the benefit of Borrower, Administrative Agent and Lenders and
their respective heirs, personal representatives, successors and assigns. Notwithstanding the
foregoing, Borrower, without the prior written consent of Lender in each instance, may not assign,
transfer or set over to another, in whole or in part, all or any part of its benefits, rights,
duties and obligations hereunder, including, but not limited to, performance of and compliance with
conditions hereof and the right to receive the proceeds of the Loan.



     Section 8.10. Severability. The provisions hereof are intended to be severable. Any
provisions hereof, or the application thereof to any Person or circumstance, which, for any reason,
in whole or in part, is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof (or the remaining portions of such provision) or the
application thereof to any other Person or circumstance, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision
(or portion thereof) or the application thereof to any Person or circumstance in any other
jurisdiction.



     Section 8.11. Non-Waiver; Remedies Cumulative. No failure or delay on Lender’s part
in exercising any right, remedy, power or privilege (hereinafter in this Section, each a “Remedy”)
hereunder or under any of the other Loan Documents shall operate as a waiver of any such Remedy or
shall be deemed to constitute Administrative



52









 







Agent’s or any Lender’s acquiescence in any default by Borrower or Guarantor under any of said
documents. A waiver by Administrative Agent or any Lender of any Remedy hereunder or under any of
the other Loan Documents on any one occasion shall not be construed as a bar to any other or future
exercise thereof or of any other Remedy. The Remedies provided in said documents are cumulative,
may be exercised singly or concurrently and are not exclusive of any Remedies provided therein or
by Law.



     Section 8.12. Certain Waivers. Borrower hereby irrevocably and unconditionally
waives (i) promptness and diligence, (ii) notice of any actions taken by Administrative Agent or
any Lender hereunder or under any other Loan Document or any other agreement or instrument relating
hereto or thereto except to the extent otherwise provided herein, (iii) all other notices, demands
and protests, and all other formalities of every kind in connection with the enforcement of
Borrower’s obligations hereunder and under the other Loan Documents, the omission of or delay in
which, but for the provisions of this Section, might constitute grounds for relieving Borrower of
any of its obligations hereunder or under the other Loan Documents, (iv) any requirement that
Administrative Agent or any Lender protect, secure, perfect or insure any lien on any collateral
for the Loan or exhaust any right or take any action against Borrower, Guarantor or any other
Person or against any collateral for the Loan, (v) any right or claim of right to cause a
marshalling of Borrower’s assets and (vi) all rights of subrogation or contribution, whether
arising by contract or operation of law or otherwise by reason of payment by Borrower pursuant
hereto or to any other Loan Document. BORROWER FURTHER HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES, IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING BROUGHT BY OR ON BEHALF OF ADMINISTRATIVE
AGENT OR LENDERS WITH RESPECT TO THIS AGREEMENT, THE NOTES OR OTHERWISE IN RESPECT OF THE LOAN, ANY
AND EVERY RIGHT BORROWER MAY HAVE TO (W) INJUNCTIVE RELIEF, (X) A TRIAL BY JURY, (Y) INTERPOSE ANY
COUNTERCLAIM THEREIN, OTHER THAN A COMPULSORY COUNTERCLAIM, AND (Z) HAVE THE SAME CONSOLIDATED WITH
ANY OTHER OR SEPARATE SUIT, ACTION OR PROCEEDING. NOTHING CONTAINED IN THE IMMEDIATELY PRECEDING
SENTENCE SHALL PREVENT OR PROHIBIT BORROWER FROM INSTITUTING OR MAINTAINING A SEPARATE ACTION
AGAINST ADMINISTRATIVE AGENT OR LENDERS WITH RESPECT TO ANY ASSERTED CLAIM.



     Section 8.13. Expenses; Indemnification. The Loan shall be made without cost to
Lender. Borrower covenants and agrees to pay all costs, expenses and charges (including, without
limitation, all fees and charges of engineers, appraisers, the Engineering Consultant and
Administrative Agent’s Counsel) incurred by Administrative Agent or any Lender in connection with
(i) the preparation for and consummation of the transactions contemplated hereby or for the
performance hereof and of the other Loan Documents, and for any services which may be required in
addition to those normally and reasonably contemplated hereby and (ii) the enforcement hereof or of
any or all of the other Loan Documents; provided, however, that Borrower shall not
be responsible for (1) the fees and expenses of legal counsel for Lenders other than BofA incurred
in connection with said counsel’s review of this Agreement and the other Loan Documents



53









 







prior to execution and (2) costs, expenses and charges incurred by Administrative Agent and
Lenders in connection with the administration of the Loan (other than the fees payable pursuant to
Section 6.03). If Borrower fails to pay promptly any costs, charges or expense required to be paid
by it as aforesaid, and Administrative Agent or any Lender pays such costs, charges or expenses,
Borrower shall reimburse Administrative Agent or such Lender, as appropriate, on demand for the
amounts so paid, together with interest thereon at the Default Rate. Borrower further agrees to
indemnify Administrative Agent and each Lender and their respective directors, officers, employees
and agents from, and hold each of them harmless against, (x) any and all losses arising out of or
by reason of any investigation or litigation or other proceedings (including any threatened
investigation or litigation or other proceedings) relating to any actual or proposed use by
Borrower of the proceeds of the Loan, including, without limitation, the fees and disbursements of
counsel incurred in connection with any such investigation, litigation or other proceedings and (y)
any and all claims, actions, suits, proceedings, costs, expenses, losses, damages and liabilities
of any kind, including in tort, penalties and interest, arising out or by reason of any matter
relating, directly or indirectly, to the Mortgage or the ownership, condition, development,
construction, sale, rental or financing of the Property or Improvements or any part thereof (but
excluding any such losses, liabilities, claims, damages or expenses incurred solely by reason of
the gross negligence or willful misconduct of the party to be indemnified). The obligations of
Borrower under this Section and under Sections 3.01, 3.03 and 6.08 shall survive the repayment of
all amounts due under or in connection with any of the Loan Documents and the termination of the
Loan.



     Section 8.14. Gross-Up For Taxes. All payments made by Borrower under the Note and
other Loan Documents shall be made free and clear of, and without deduction or withholding for or
on account of, any present or future stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by
any Governmental Authority, excluding income taxes and franchise or other taxes (imposed in lieu of
income taxes) imposed on Lender as a result of a present or former connection between Lender and
the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or
taxing authority thereof or therein (other than any such connection arising solely from Lender’s
having executed, delivered or performed its obligations or received a payment under, or enforced,
this Agreement or the Note). If any such non-excluded taxes, levies, imposts, duties, charges,
fees, deductions or withholdings (“Non-Excluded Taxes”) is required to be withheld from any amounts
payable to Lender under the Note or other Loan Documents, the amounts so payable to Lender shall be
increased to the extent necessary to yield to Lender (after payment of all Non-Excluded Taxes)
interest or any such other amounts payable with respect to the Loan at the rates or in the amounts
specified in the Note or other Loan Documents. Whenever any Non-Excluded Taxes are payable by
Borrower, as promptly as possible thereafter Borrower shall send to Lender a certified copy of an
original official receipt received by Borrower showing payment thereof. If Borrower fails to pay
any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to Lender the
required receipts or other required documentary evidence, Borrower shall indemnify Lender for any
incremental taxes, interest or penalties that may become payable by Lender as a result of any such
failure. The



54









 







agreements in this Section shall survive the termination of this Agreement and the payment of
the Note and all other amounts payable in respect of the Loan.



     Section 8.15. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same instrument, and any
party hereto may execute this Agreement by signing any such counterpart.



     Section 8.16. Governing Law; Jurisdiction. This Agreement and the rights and
obligations of the parties hereunder shall in all respects be governed by, and construed and
enforced in accordance with, the Laws of the State of New York (without giving effect to New York’s
principles of conflicts of law). Borrower, Administrative Agent and each Lender hereby irrevocably
submit to the non-exclusive jurisdiction of any New York State or Federal court sitting in The City
of New York (or any county in New York State where any portion of the Property is located) over any
suit, action or proceeding arising out of or relating to this Agreement, and Borrower hereby agrees
and consents that, in addition to any methods of service of process provided for under applicable
Law, all service of process in any such suit, action or proceeding in any New York State or Federal
court sitting in The City of New York (or such other county in New York State) may be made by
certified or registered mail, return receipt requested, directed to Borrower at the address
indicated on the cover page hereof, and service so made shall be complete five (5) days after the
same shall have been so mailed.



     Section 8.17. Integration. The Loan Documents constitute the entire agreement among
Administrative Agent, Borrower and Lenders relating to the transactions contemplated thereby
(except with respect to agreements among Lenders or with Administrative Agent relating solely to
compensation, consideration and the syndication of the Loan) and supersede any prior oral or
written statements or agreements with respect to such transactions.



     Section 8.18. Releases. Provided no Default or Event of Default exists, Borrower
shall have the right to obtain the release of any of the Properties from the Mortgage encumbering
the same, at Borrower’s expense, so long as (i) Borrower pays to Administrative Agent for the
account of Lenders an amount equal to the lesser of (x) the greater of (A) the Release Price for
the Property that is the subject of such release and (B) the amount necessary to reduce the Funding
Cap and the Outstanding Credit Amount to an amount which satisfies the DSC Test on the basis of Net
Operating Income from the parcels not being released or (y) the Maximum Release Price, which amount
shall be applied to the reduction of outstanding principal under the Loan, (ii) Administrative
Agent receives such reasonable documentation as Administrative Agent shall request confirming that
the amount of any Additional Interest secured by the Mortgage encumbering the Property which is
being released shall be secured by the credit of Guarantor, and (iii) Administrative Agent receives
such other documents, opinions and assurances as Administrative Agent may reasonably request. Upon
any such release of a Property, such Property shall no longer constitute a “Property” hereunder and
the Total Loan Commitment shall be reduced by the amount of the Loan Allocation for such Property.
As used herein, the term “Maximum Release Price” shall mean the amount



55









 







(which shall in no event be less than zero) by which (x) the Outstanding Credit Amount exceeds
(y) the Funding Cap determined as if such Property were released.



     Section 8.19. Substitution of Collateral.




     (a) Not more than twice in any twelve (12) month period Borrower may obtain the release of a
Property as specified in a request to Lender by Borrower (the Property, the “Release Property”),
provided that Borrower grants to Administrative Agent a Mortgage encumbering substitute property
(“Substitute Collateral”) owned by a Borrower, and provided, further, that, as to each such release
and substitution, all of the following requirements are satisfied in full:




     (i) Required Lenders have given prior approval of the release and substitution;




     (ii) the Substitute Collateral is not located in the State of New York or in any other
jurisdiction in which Administrative Agent determines it is impractical or disadvantageous
to secure a revolving credit facility such as the Loan with real property;




     (iii) Administrative Agent receives at least ninety (90) days’ prior notice of the
proposed release and substitution, which notice will contain sufficient documentation to
enable Administrative Agent to determine whether the criteria set forth herein have been
satisfied including, without limitation, operating statements and rent rolls for the
Substitute Collateral for the six (6) most recent month period;




     (iv) no default or Event of Default exists at the time of Borrower’s request for
release and no default or Event of Default exists at the time of release and substitution
under the Loan Documents;




     (v) the Substitute Collateral will be encumbered by a Mortgage in an amount equal to
the Loan Amount, except that if the Substitute Collateral is located in a jurisdiction with
a material mortgage recording tax based on the principal amount secured by the Mortgage,
the amount of the Mortgage encumbering such Property shall be an amount equal to the
product of (x) the as-is appraised value (the “Substitute Collateral Value”) of the
Substitute Collateral based on an appraisal thereof acceptable to Administrative Agent,
which appraisal shall be at Borrower’s cost and (y) 1.25;




     (vi) Borrower will have complied with each and every covenant and condition to the
Initial Advance set forth in Section 4.01 that would have been applicable if such
Substitute Collateral had been included as a Property;




     (vii) each property constituting Substitute Collateral will have satisfied Lenders’
underwriting criteria including leasing criteria, tenant credit risk, tenant quality and
lease expiration risk;



56









 






     (viii) Guarantor indemnifies Administrative Agent and Lenders against losses related
to environmental matters related to the Substitute Collateral pursuant to an indemnity
agreement in substantially the same form executed with respect to the Release Property;




     (ix) Borrower will have caused the Title Insurer to deliver, in form and substance
satisfactory to Administrative Agent, a mortgagee’s title policy in at least the amount of
the Loan Allocation for the Substitute Collateral, together with tie-in endorsements to
such new policy and each of the mortgagee title insurance policies insuring the other
Mortgages, provided, however, that if the Substitute Collateral is located in a state in
which a title policy tie-in or aggregation endorsement is not permitted, the policy
insuring the Mortgage encumbering such Property shall be in an amount equal to the product
of (x) the Substitute Collateral Value and (y) 1.25;




     (x) Borrower will have paid for all of Lenders’ costs and expenses associated with the
substitution of collateral including attorneys’ fees incurred by Administrative Agent and
Lenders, title, survey, and engineering and environmental costs and charges; and




     (xi) the Substitute Collateral will conform in all respects to such other underwriting
standards and criteria as well as such other appraisal, legal, business, environmental,
engineering, diversification, leasing and title requirements, all as Lender may determine
in its sole discretion, and, in connection therewith, Lenders will have the right to
conduct with respect to the Substitute Collateral, at Borrower’s cost and expense,
engineering audits and/or reports, reports, or audits as to the compliance by the
Substitute Collateral with Law regarding access for persons with disabilities and
environmental audits and/or reports.




     (b) If Administrative Agent determines that the criteria set forth in this Section 8.19 have
been satisfied and so notifies Borrower, then, (x) Borrower will grant a new Mortgage in favor of
Administrative Agent in substantially the form of the other Mortgages and which will encumber the
Substitute Collateral as a first priority lien, (y) as determined by Administrative Agent,
Administrative Agent, Lenders, Borrower and Guarantor will otherwise modify or amend the Loan
Documents to add the Substitute Collateral to the security encumbered by the Loan Documents and
Borrower will execute and deliver to Administrative Agent such documents or instruments, as
Administrative Agent requires to effect such modification or amendment, including, without
limitation, modifications to (A) reflect the Allocated Amount for the Substitute Collateral (which
Administrative Agent shall determine to be at an amount at which the Substitute Collateral would,
if it were the only Property, satisfy the Loan to Value Test and the DSC Test) and the Funding
Amount, provided that in no event shall (1) the Loan Amount be increased or (2) the Funding Amount
exceed the Loan Amount and (B) reflect the deletion therefrom of references to the Release Property
and the addition thereto of the Substitute Collateral, and (z) subject to the satisfaction in full
of all of the requirements of clauses (x) and (y) above, Administrative Agent will release from the
lien of this Mortgage such Release Property as Lender has theretofore agreed to reconvey.



57









 





     Notwithstanding any of the above requirements, Administrative Agent reserves the right to
reject the proposed Substitute Collateral if Administrative Agent concludes, in its sole judgment,
that the proposed Substitute Collateral does not satisfy any of the conditions set forth above.



     Section 8.20. Exculpation. Neither Borrower nor any Guarantor shall be personally
liable for payment of the principal of the Note or interest thereon, and in the event of any
failure by Borrower to pay any portion of such principal or interest, Lenders will look, with
respect to the then outstanding balance of such principal and interest, solely to the Mortgaged
Property and such other collateral as has been, or hereafter shall be, given to secure payment of
the Note. The foregoing limitation on liability shall not impair or otherwise affect the validity
or enforceability of (a) the debt evidenced by the Note or the Loan Agreement or of any other
obligations evidenced by the Note, the Loan Agreement, the Mortgage or any of the Loan Documents or
(b) Lenders’ liens, security interests, rights and remedies (including, without limitation, the
remedies of foreclosure and/or sale) with respect to the Mortgaged Property or any other property,
security, collateral and/or assets (including the proceeds thereof) encumbered, pledged or assigned
by the Mortgages or any other security for the Loan. In addition, the foregoing limitation on
liability shall not limit anyone’s obligations or be applicable with respect to: (i) liability
under any guaranty(ies) or indemnity(ies) delivered or afforded to Lenders; (ii) any fraud or
material misrepresentation; (iii) taxes of any kind (whether characterized as transfer, gains or
other taxes) payable in connection with the foreclosure sale of the Mortgaged Property,
irrespective of who pays such taxes; (iv) application of any proceeds of the Loan to any purpose
other than as provided in the Loan Documents; (v) the application of any insurance or condemnation
proceeds or other funds or payments other than strictly in accordance with the Loan Documents; (vi)
the misapplication of any security deposits; (vii) rents, sales proceeds, or other sums received
after default under the Loan Documents which are not applied to expenses of operating the Mortgaged
Property or paid to Lenders or a duly appointed receiver of the Mortgaged Property; (viii) any
failure to deliver to Lenders, after demand therefor, any agreements relating to the operation,
management, leasing, use, occupancy or construction of the Mortgaged Property; (ix) any intentional
physical waste in respect of the Mortgaged Property; (x) any failure to pay or discharge any real
estate tax, other tax, assessment, fine, penalty or lien against the Mortgaged Property to the
extent revenue from leases of the Mortgaged Property was available to pay same; (xi) liability as
landlord under any lease(s) relating to the Mortgaged Property which liability accrued prior to
Lenders’ succeeding to such interest of Borrower, which Lenders are or become obligated for by
virtue of Lenders succeeding to the interests of Borrower, provided, however, that
such liability shall only apply with respect to any liability of Borrower under such leases which
Lenders assumes pursuant to subordination, non-disturbance and attornment agreements required
pursuant to the terms of such leases; (xii) liability under any agreement relating to the operation
or maintenance of the Mortgaged Property which liability accrued prior to Lenders’ succeeding to
such interest of Borrower which Lenders are or become obligated for by virtue of Lenders succeeding
to the interests of Borrower, provided, however, that such liability shall only apply with respect
to agreements which are not terminable by their terms upon thirty (30) days’ written notice; (xiii)
liability to pay for the premiums on and keep in full force and effect insurance in respect of the
Mortgaged Property in accordance




58










 




with the Loan Documents to the extent revenue from leases of the Mortgaged Property was
available to pay same; or (xiv) liability for Hazardous Substances that may exist upon or be
discharged from the Mortgaged Property. Borrower and any Guarantor shall in any event be and shall
remain personally liable for each of the matters to which reference is made in the preceding
sentence and Lenders may seek, obtain and enforce one or more money judgments in any appropriate
proceeding(s) with respect thereto. The limitation on personal liability contained in this
paragraph shall become automatically null and void and shall be of no further force or effect, and
Borrower and each Guarantor shall be and remain personally liable for payment of the principal of
the Note and interest thereon, in accordance with the terms and provisions of this Loan Agreement,
in the event that Borrower, or anyone acting on behalf of Borrower, shall (A) file a petition or
answer seeking any relief of any kind under the bankruptcy laws of the United States (or if an
Insolvency Event shall otherwise occur), (B) assert in writing or in any legal proceedings of any
kind that any provisions of any of the Loan Documents are in whole or in part unenforceable,
invalid or not legally binding, or (C) fail fully to cooperate with Lenders or a receiver in
Lenders’ or such receiver’s efforts to collect Rents directly from tenants after a default under
the Loan Documents.




     Section 8.21. Letters of Credit.



     (a) Borrower, with the consent of Administrative Agent, may request, in lieu of advances of
proceeds of the Loan, that Administrative Agent issue unconditional, irrevocable standby letters of
credit (each, a “Letter of Credit”) for the account of Borrower. Promptly upon Borrower’s request
for, and then upon issuance of, a Letter of Credit, Administrative Agent shall notify each Lender.
As of the date hereof, the parties acknowledge that the Existing Letters of Credit constitute
Letters of Credit issued hereunder. Each Borrower hereby assumes the reimbursement obligations
agreed to by the Borrowers which executed the applications or agreements related to the issuance of
the Existing Letters of Credit and all Borrowers shall hereafter be jointly and severally liable
therefor. Notwithstanding anything to the contrary contained herein, in no event shall Borrower be
permitted to have Letters of Credit with an aggregate face amount of more than $15,000,000
outstanding at any one time.



     (b) The amount of any Letter of Credit shall be limited to the amount of proceeds of the Loan
available to be advanced hereunder, it being understood that the amount of each Letter of Credit
issued and outstanding shall effect a reduction, by an equal amount, of proceeds available to
Borrower under the Loan. Administrative Agent’s issuance of each Letter of Credit shall be subject
to Borrower having satisfied all conditions precedent to its entitlement to an advance of Loan
proceeds. Each Letter of Credit shall expire no later than one (1) month prior to the Maturity
Date. If the Letter of Credit is returned undrawn upon or expires without being drawn upon, then
the amount of Loan proceeds allocated to the Letter of Credit shall again become available to be
advanced with the terms hereof.



     (c) In connection with, and as a further condition to the issuance of, each Letter of Credit,
Borrower shall execute and deliver to Administrative Agent an application for the Letter of Credit
on Administrative Agent’s standard form therefor,



59









 







together with such other documents, opinions and assurances as Administrative Agent shall
reasonably require, and shall pay such fees as Administrative Agent shall require.



     (d) The parties hereto acknowledge and agree that, immediately upon notice from Administrative
Agent of any drawing under a Letter of Credit, each Lender shall, notwithstanding the existence of
a Default or Event of Default or the non-satisfaction of any conditions precedent to the making of
an advance of the Loan, advance proceeds of the Loan, in an amount equal to its ratable share
(based upon the undisbursed amounts of the Lenders’ respective Individual Loan Commitments) of such
drawing, which advance shall be made to Administrative Agent to reimburse Administrative Agent, for
its own account, for such drawing. Borrower hereby irrevocably authorizes Lenders to make such
advances. Each Lender further acknowledges that its obligation to fund its share of drawings under
Letters of Credit as aforesaid shall survive the Lenders’ termination of this Agreement or
enforcement of remedies hereunder or under the other Loan Documents. In the event that any advance
cannot for any reason be made on the date otherwise required above (including, without limitation,
as a result of the commencement of a proceeding under any applicable bankruptcy or insolvency Law
with respect to Borrower), then each Lender shall purchase (on or as of the date such advance would
otherwise have been made) from Administrative Agent a participation interest in any unreimbursed
drawing in an amount equal to its Pro Rata Share of such unreimbursed drawing.



     (e) Borrower agrees, upon the occurrence of an Event of Default and at the written request of
Administrative Agent, (i) to deposit with Administrative Agent cash collateral in the amount of all
the outstanding Letters of Credit, which cash collateral shall be held by Administrative Agent as
security for Borrower’s obligations in connection with the Letters of Credit and (ii) to execute
and deliver to Administrative Agent such documents as Administrative Agent reasonably requests to
confirm and perfect the assignment of such cash collateral to Administrative Agent.



     (f) In connection with each Letter of Credit, Borrower hereby covenants to pay to
Administrative Agent the following fees, payable annually in advance upon the issuance of the
Letter of Credit and on each anniversary date thereof): (1) a fee (the “Lenders L/C Fee”) for the
account of Lenders, computed daily on the amount of the Letter of Credit issued and outstanding at
a per annum rate equal to 0.75% and (2) a fee (the “Fronting Fee”) for Administrative Agent’s own
account, computed daily on the amount of the Letter of Credit issued and outstanding at a rate per
annum equal to 0.15%. It is understood and agreed that the last installment of the foregoing fees
provided for in this paragraph (f) with respect to any particular Letter of Credit shall be due and
payable on the first day of the calendar quarter following the return, undrawn, or cancellation, of
such Letter of Credit. In addition, Borrower shall pay to Administrative Agent, Administrative
Agent’s customary Administration Fees in connection with the issuance, extension, amendment and
drawing of all Letters of Credit.



     Section 8.22. Concerning Irrevocable Authorizations. Any and all advances made at
any time by Lenders pursuant to the irrevocable authorizations granted by Section 8.20 shall
require no further direction, authorization or request for disbursement



60









 







from Borrower and may be made whether or not there exists a Default or Event of Default. Any
and all such disbursements shall be added to the outstanding principal balance evidenced by the
Notes and shall be secured by the Mortgage.



     Section 8.23. Usury. Anything herein to the contrary notwithstanding, the
obligations of Borrower under this Agreement and the Notes shall be subject to the limitation that
payments of interest shall not be required to the extent that receipt thereof would be contrary to
provisions of Law applicable to a Lender limiting rates of interest which may be charged or
collected by such Lender.



     Section 8.24. Documentation Satisfactory. All documentation required from or to be
submitted on behalf of Borrower in connection with this Agreement and the documents relating hereto
shall be subject to the prior approval of, and be satisfactory in form and substance to,
Administrative Agent, its counsel and, where specifically provided herein, Lenders. In addition,
the persons or parties responsible for the execution and delivery of, and signatories to, all of
such documentation, shall be acceptable to, and subject to the approval of, Administrative Agent
and its counsel.



[Remainder of page intentionally left blank]




61









 








     IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the day and
year first above written, the execution hereof by Borrower constituting a certification by the
party or parties executing on its behalf that the representations and warranties made in Article IV
are true and correct as of the date hereof and that each of them duly holds and is incumbent in the
position indicated under his or her name.



	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A. (as Lender and Administrative Agent)	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 

Denise M. Smyth
	 	 
	 

	 	 	 	Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Address for notices and Applicable Lending Office:	 	 
	 
	 	 	 	 	 	 
	 	 	Bank of America, N.A.	 	 
	 	 	1185 Avenue of the Americas, 16th Floor	 	 
	 	 	New York, New York 10036	 	 
	 	 	Attention: Ms. Denise M. Smyth	 	 
	 	 	Telephone: 212/819-6144	 	 
	 	 	Telefax: 212/819-6294	 	 
	 
	 	 	 	 	 	 
	 	 	RD ABSECON ASSOCIATES, L.P., a Delaware limited partnership	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	RD Absecon, Inc., a Delaware corporation, its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






 









 






	 	 	 	 	 	 	 
	 	 	RD BLOOMFIELD ASSOCIATES, LIMITED PARTNERSHIP, a Delaware limited partnership
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Acadia Property Holdings, LLC, its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Acadia Realty Limited Partnership, its sole member	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Acadia Realty Trust, its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 

Robert Masters
	 	 
	 

	 	 	 	Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	RD HOBSON ASSOCIATES, L.P., a Delaware limited partnership
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Acadia Property Holdings, LLC, its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Acadia Realty Limited Partnership, its sole member	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Acadia Realty Trust, its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 

Robert Masters
	 	 
	 

	 	 	 	Senior Vice President	 	 






 









 






	 	 	 	 	 	 	 
	 	 	RD VILLAGE ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Acadia Property Holdings, LLC, its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Acadia Realty Limited Partnership, its sole member	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Acadia Realty Trust, its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 

Robert Masters
	 	 
	 

	 	 	 	Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	RD ABINGTON ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Acadia Property Holdings, LLC, its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Acadia Realty Limited Partnership, its sole member	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Acadia Realty Trust, its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 

Robert Masters
	 	 
	 

	 	 	 	Senior Vice President	 	 






 









 






	 	 	 	 	 	 	 
	 	 	ACADIA TOWN LINE, LLC, a Connecticut limited liability company
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Acadia Realty Limited Partnership, a Delaware limited partnership,

its sole member	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Acadia Realty Trust, a Maryland real estate

investment trust, its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 

Robert Masters
	 	 
	 

	 	 	 	Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	RD METHUEN ASSOCIATES LIMITED PARTNERSHIP, a Massachusetts limited partnership
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Acadia Property Holdings, LLC, its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Acadia Realty Limited Partnership, its sole member	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Acadia Realty Trust, its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 

Robert Masters
	 	 
	 

	 	 	 	Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	Address for notices for all Borrowers:
	 
	 	 	 	 	 	 
	 	 	c/o Acadia Realty Trust

1311 Mamaroneck Avenue, Suite 260

White Plains, New York 10605

Attention: Mr. Robert Masters






 









 






EXHIBIT A




Assignment and Assumption Agreement




     ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of                     , 200___, among [NAME OF ASSIGNING
BANK] (“Assignor”) and [NAME OF ASSIGNEE] (“Assignee”).



Preliminary Statement




     1. This Assignment and Assumption Agreement (this “Agreement”) relates to the Amended and
Restated Revolving Loan Agreement (as the same may be amended from time to time, the “Loan
Agreement”) dated December 19, 2006 among                      (“Borrower”), the lender(s)
party thereto (each a “Lender” and, collectively, “Lenders”) and                     , as
administrative agent (“Administrative Agent”). All capitalized terms not otherwise defined herein
shall have the respective meanings set forth in the Loan Agreement.



     2. Subject to the terms and conditions set forth in the Loan Agreement, Assignor has made an
Individual Loan Commitment to Borrower in an aggregate principal amount of $                    
(“Assignor’s Loan Commitment”).



     3. The aggregate outstanding principal amount under Assignor’s Loan Commitment at the
commencement of business on the date hereof is $                    .



     4. Assignor desires to assign to Assignee all of the rights of Assignor under the Loan
Agreement in respect of a portion of Assignor’s Loan Commitment and the loan made pursuant thereto,
such portion being in an amount equal to $                     (the “Assigned Loan and Commitment”), of
which $                     is currently outstanding and $                     is still to be disbursed to Borrower
pursuant to the Loan Agreement; and Assignee desires to accept assignment of such rights and assume
the corresponding obligations from Assignor on such terms.



     NOW, THEREFORE, in consideration of the foregoing and the mutual agreements contained herein,
the parties hereto agree as follows:



     SECTION 1. Assignment. Assignor hereby assigns and sells to Assignee all of the
rights of Assignor under the Loan Agreement in and to the Assigned Loan and Commitment, and
Assignee hereby accepts such assignment from Assignor and assumes all of the obligations of
Assignor under the Loan Agreement with respect to the Assigned Loan and Commitment, including,
without limitation, Assignor’s obligations with respect to the undisbursed `ortion, if any,
thereof. Upon the execution and delivery hereof by Assignor, Assignee, Administrative Agent and
the payment of the amount specified in Section 2 hereof required to be paid on the date hereof, (1)
Assignee shall, as of the commencement of business on the date hereof, succeed to the rights and
obligations of a Lender under the Loan Agreement with an Individual Loan Commitment in an amount



 









 







equal to the Assigned Loan and Commitment, and (2) the Individual Loan Commitment of Assignor
shall, as of the commencement of business on the date hereof, be reduced correspondingly and
Assignor released from its obligations under the Loan Agreement to the extent such obligations have
been assumed by Assignee. Assignor represents and warrants that it (x) owns the Assigned Loan and
Commitment free and clear of all liens and other encumbrances and (y) is legally authorized to
enter into and perform this Agreement. Except as provided in the immediately preceding sentence,
the assignment provided for herein shall be without representation or warranty by, or recourse to,
Assignor.



     SECTION 2. Payments. As consideration for the assignment and sale contemplated in
Section 1 hereof, Assignee shall pay to Assignor on the date hereof, in immediately available
funds, an amount equal to the outstanding principal amount under the Assigned Loan and Commitment
recited in paragraph 4 of the Preliminary Statement above. Each of Assignor and Assignee hereby
agrees that if it receives any amount under the Loan Agreement which is for the account of the
other party hereto, it shall receive the same for the account of such other party to the extent of
such other party’s interest therein and shall promptly pay the same to such other party.



     SECTION 3. Consent; Execution and Delivery of Note. This Agreement is conditioned
upon the consent of Administrative Agent. The execution of this Agreement and Administrative Agent
is evidence of this consent; [Consents not required for certain assignments to entities related to
a Lender.] Pursuant to Section 8.07 of the Loan Agreement, Borrower has agreed to execute and
deliver Notes payable to the respective orders of Assignee and Assignor to evidence the assignment
and assumption provided for herein. Assignee has designated as its Applicable Lending Office, and
as its address for notices, the office identified as such below.



     SECTION 4. Non-Reliance on Assignor. Assignor makes no representation or warranty in
connection with, and shall have no responsibility with respect to, the solvency, financial
condition, or statements of Borrower or any other party to any Loan Document, or the validity and
enforceability of the obligations of Borrower or any other party to a Loan Document in respect of
the Loan Agreement or any other Loan Document. Assignee acknowledges that it has, independently
and without reliance on Assignor, and based on such documents and information as it has deemed
appropriate, made its own analysis of the collateral for the Loan, credit analysis of Borrower and
Guarantor and decision to enter into this Agreement and will continue to be responsible for making
its own independent appraisal of the collateral for the Loan and of the business, affairs and
financial condition of Borrower and the other parties to the Loan Documents.



     SECTION 5. Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the Laws of the State of New York (without giving effect to New York’s
principles of conflicts of law).



2









 





     SECTION 6. Counterparts. This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures thereto and hereto
were upon the same instrument.



     SECTION 7. Certain Representations and Agreements by Assignee. Assignee represents
that it is legally authorized to enter into and perform this Agreement. In addition, Assignee
hereby represents that it is entitled to receive any payments to be made to it under the Loan
Agreement or hereunder without the withholding of any tax and agrees to furnish the evidence of
such exemption as specified therein and otherwise to comply with the provisions of Section 7.13 of
the Loan Agreement.



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



	 	 	 	 	 	 	 
	 	 	[NAME OF ASSIGNOR]
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	[NAME OF ASSIGNEE]
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	Assignee’s Applicable Lending Office and Address for Notices:
	 
	 	 	[Assignee]
	 	 	[Address]
	 	 	Attention: ________________________________
	 	 	Telephone: (___) ________________________
	 
	 	 	 	 	 	 
	 	 	[NAME OF ADMINISTRATIVE AGENT]
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






3









 






	 	 	 	 	 	 	 
	 	 	[NAME OF BORROWER]
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






4









 






EXHIBIT B




Notice-of-Assignment of Lease

(On Letterhead of Borrower)




                    , 200_




[Name and Address of Tenant]



Re: Lease Dated:

       Lender:

       Address of Lender:

       Mortgage Dated:



Dear Sir/Madam:




     The undersigned has assigned by a mortgage or deed of trust (the “Mortgage”) dated as shown
above to the Lender identified above (hereinafter “Lender”) all its estate, right, title and
interest in, to and under the Lease between you and the undersigned dated as set forth above, as
said Lease may have been heretofore modified or amended (the “Lease”), together with all right,
title and interest of the undersigned as lessor thereunder, including, without limitation, the
right upon the occurrence of an Event of Default (as defined in the Mortgage) to collect and
receive all earnings, revenues, rents, issues, profits and income of the property subject to the
Mortgage.



     [Certain provisions of the Mortgage, the text of which are attached hereto, restrict
some of the undersigned’s rights under the Lease. However, s][S]aid assignment does not impair or
diminish any of our obligations to you under the provisions of the Lease, nor are any such
obligations imposed upon Lender, its successors or assigns.



     Pursuant to said assignment you are hereby notified that in the event of a demand on you by
Lender or its successors and assigns for the payment to it of the rents due under the Lease, you
may, and are hereby authorized and directed to, pay said rent to Lender and we hereby agree that
the receipt by you of such a demand shall be conclusive evidence of Lender’s right to the receipt
thereof and that the payment of the rents by you to Lender pursuant to such demand shall constitute
performance in full of your obligation under the Lease for the payment of rent to the undersigned.





 




			
	NOTE:	 	To be sent in accordance with notice requirements of the Lease.
	 
	*	 	To be used if property located in New York




 









 











	 	 	Kindly indicate your receipt of this letter and your agreement to the effect set forth below
by signing the enclosed copy thereof and mailing it to Lender at its address identified above to
the attention of its Real Estate Finance Office.





	 	 	 	 	 	 	 
	 	 	[BORROWER]
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






     The undersigned acknowledges receipt of the original of this letter and agrees for the benefit
of Lender that it shall notify Lender of any default on the part of the landlord under the Lease
which would entitle the undersigned to cancel the Lease or to abate the rent payable thereunder,
and further agrees that, notwithstanding any provision of the Lease, no notice of cancellation
thereof, nor of any abatement, shall be effective unless Lender has received the notice aforesaid
and has failed within 30 days of the date thereof to cure, or if the default cannot be cured within
30 days has failed to commence and to diligently prosecute the cure, of landlord’s default which
gave rise to the right to cancel or abate.



	 	 	 	 	 	 	 
	 	 	[NAME OF TENANT]
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 

	, 	 
	 

	 	 	 	 
its authorized officer	 	 





2









 






EXHIBIT C




Required Contents of Borrower’s Counsel Opinion




     (1) If Borrower, the mortgagor or grantor under the Mortgage (if different from Borrower),
Guarantor or any general partner or member of any of them is a corporation, partnership, venture,
limited liability company or trust, each such entity is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its formation, is qualified to do business
(or such opinion shall specifically state that such qualification is not required) and is
in good standing in the jurisdiction in which the Property is located, and has full power and
authority to consummate the transactions contemplated by the Loan Documents and to execute, deliver
and perform all Loan Documents to which it is a party.



     (2) There are no actions, suits or proceedings pending or threatened against or affecting
Borrower, Guarantor, the Mortgaged Property, the validity or enforceability of the Mortgage or the
priority of the lien thereof at law, in equity or before or by any Governmental Authorities except
actions, suits or proceedings which have been disclosed to Lender in writing and which are fully
covered by insurance or would, if adversely determined, not substantially impair the ability of
Borrower or Guarantor to pay when due any amounts which may become payable under the Note or
Guaranty or to otherwise pay and perform their respective obligations in connection with the Loan;
neither Borrower nor Guarantor is in default with respect to any order, writ, injunction, decree or
demand of any court or Governmental Authorities.



     (3) The consummation of the transactions contemplated by and the performance of the Loan
Documents have not resulted and will not result in any breach of, or constitute a default under,
any mortgage, deed of trust, lease, bank loan or credit agreement, corporate charter, by-laws,
partnership agreement or other instrument to which Borrower or Guarantor is a party or by which
either of them may be bound or affected.



     (4) There exist no violations of any laws, statutes, ordinances, rules, orders, regulations or
requirements of any Governmental Authorities with respect to the Improvements and that the use
thereof complies with all applicable zoning and other laws, etc. and with all restrictions,
covenants, leases and easements affecting the Mortgaged Property.



     (5) The Property is not part of a larger tract of land owned by Borrower, its affiliates or
Guarantor, or otherwise considered as part of one zoning or tax lot, or, if they are, that any
authorization or variance required for the subdivision of such larger tract which a sale of the
Property would entail has been obtained from all appropriate Governmental Authorities so that the
Property and Improvements constitute one zoning or tax lot (including parking and utility
facilities and street access, if relevant) capable of being conveyed as such.



 









 




Required Contents of Borrower’s Local Counsel Opinion (and, if required by Lender,
of a local counsel selected by Lender or its counsel)




     (1) The Loan Documents have each been duly authorized, executed and delivered by the parties
thereto (other than Lender) and, under the laws of the jurisdiction in which the Property is
located (were such laws to apply), are valid and binding instruments enforceable against such
parties in accordance with their respective terms, subject, however, to the qualifications that (a)
some of the rights and remedies set forth in the Note and Mortgage may be limited by bankruptcy,
insolvency, reorganization and other laws of general application to the enforcement of creditors’
rights and (b) certain remedies and waivers contained in the Mortgage may be limited by applicable
laws of said jurisdiction, none of which qualifications will materially interfere with the
practical realization of the benefits and security provided by said documents except for the
economic consequences of any procedural delay which may result therefrom.



     (2) Considering the significant relationship that the State of New York has to the Loan, the
courts of the jurisdiction in which the Property is located will, in all likelihood, honor any
designations by the parties of New York as the governing law contained in the Loan Documents.



     (3) The Mortgage will create the lien it purports to create on the property covered by the
Mortgage and will effectively assign the leases purported to be assigned thereby if the Mortgage
and any necessary UCC-1 financing statements are recorded or filed, as the case may be, and
specifying local law requirements as to (1) the manner in which, and offices where, such recording
and filing must be made and (2) the re-recording of the Mortgage and refiling of the financing
statements, all in order to establish, preserve and protect such lien and assignment and Lender’s
interest in the property covered by the Mortgage.



     (4) In the event of a foreclosure or other method of enforcement of the remedies provided for
in the Mortgage, any leases of the Mortgaged Property will, at the option of the holder of the
Mortgage, remain in full force and effect between the lessees thereunder and such holder or any
purchaser of the Mortgaged Property pursuant to such remedial action. The opinion shall state
whether the foregoing results as a matter of law or by reason of compliance with Section 1.14(c)
of the Mortgage.



     (5) All rights of redemption in respect of the Mortgage will be extinguished upon the
consummation of a sale of the Mortgaged Property pursuant to any remedial provisions provided for
in the Mortgage, [or if the foregoing is not the case, the opinion shall specify the period of time
which must expire following such consummation in order for said rights of redemption to be
extinguished under local law, and shall state whether the applicable result obtains as a matter of
law or pursuant to any waiver provided for in the Mortgage].



     (6) There are no changes or additions to the Mortgage and other Loan Documents which are
required by local law, and none which are customary in local



2









 







practice and which would not unsubstantially enhance the rights and benefits of Lender
thereunder.



     (7) To such other effects as Lender or its counsel may reasonably require.




3









 





EXHIBIT D




Note




			
	$                    
	 	New York, New York

___, 200___






     For value received, RD ABSECON ASSOCIATES, L.P., a Delaware limited partnership (“RD
Absecon”), RD BLOOMFIELD ASSOCIATES, LIMITED PARTNERSHIP, a Delaware limited partnership (“RD
Bloomfield”), RD HOBSON ASSOCIATES, L.P., a Delaware limited partnership (“RD Hobson”), RD VILLAGE
ASSOCIATES LIMITED PARTNERSHIP (“RD Village”), a Delaware limited partnership, RD ABINGTON
ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership (“RD Abington”), ACADIA TOWN LINE,
LLC, a Connecticut limited liability company (“Acadia Town Line”) and RD METHUEN ASSOCIATES LIMITED
PARTNERSHIP, a Massachusetts limited partnership (“RD Methuen”; RD Absecon, RD Bloomfield, RD
Hobson, RD Village, RD Abington, Acadia Town Line and RD Methuen, collectively and individually, as
the context requires, “Maker”) hereby covenant and promise to pay to the order of [NAME OF LENDER],
or its successors or assigns (collectively, “Lender”), at the principal office of BANK OF AMERICA,
N.A., located at 1185 Avenue of the Americas, New York, New York 10036 (“Administrative Agent”) for
the account of the Applicable Lending Office of Lender, the principal sum of
                                         Dollars ($                    ) or, if less, the amount loaned by the Lender
under its Loan to Borrower pursuant to the Loan Agreement (as defined below) and actually
outstanding, in lawful money of the United States and in immediately available funds, in accordance
with the terms set forth in the Loan Agreement. Maker also covenants and promises to pay interest
on the unpaid principal balance hereof, for the period such balance is outstanding, in like money,
at said office for the account of said Applicable Lending Office, at the time and at a rate per
annum as provided in the Loan Agreement (as defined below). Any amount or principal hereof which
is not paid when due, whether at stated maturity, by acceleration, or otherwise, shall bear
interest from the date when due until said principal amount is paid in full, payable on demand, at
the Default Rate. The entities comprising Maker are jointly and severally liable under this Note.



     The date and amount of each advance of the Loan made by Lender to Borrower under the Loan
Agreement referred to below, and each payment of said Loan, shall be recorded by Lender on its
books and, prior to any transfer of this Note (or, at the discretion of Lender, at any other time),
may be endorsed by Lender on the schedule attached hereto and any continuance thereof.



     This Note is one of the Notes referred to in the Amended and Restated Revolving Loan Agreement
dated as of the date hereof (as the same may be amended or supplemented from time to time, the
“Loan Agreement”) among Maker, as Borrower, the lenders named therein (including Lender), as
Lenders, and Administrative Agent, as



 









 







Administrative Agent for Lenders. All of the terms, conditions and provisions of the Loan
Agreement are hereby incorporated by reference. All capitalized terms used herein and not defined
herein shall have the meanings given to them in the Loan Agreement.



     This Note is secured by the various Mortgages which contain, among other things, provisions
for the prepayment of and acceleration of this Note upon the happening of certain stated events.
Reference to such of the Mortgages is hereby made for a description of the “Mortgaged Property”
encumbered thereby and the rights of Maker and Lenders (including Lender) with respect to such
Mortgaged Property.



     Maker agrees that it shall be bound by any agreement extending the time or modifying the terms
of payment set forth above and in the Loan Agreement, made by or on behalf of Lenders and the owner
or owners of the Mortgaged Property, whether with or without notice to Maker, and Maker shall
continue liable to pay the amount due hereunder in accordance with the terms set forth herein and
in the Loan Agreement, but with interest at a rate no greater than the rate of interest provided
therein, according to the terms of any such agreement of extension or modification.



     Should the indebtedness represented by this Note or any part thereof be collected at law or in
equity, or in bankruptcy, receivership or any other court proceeding (whether at the trial or
appellate level), or should this Note be placed in the hands of attorneys for collection upon
default, Maker agrees to pay, in addition to the principal, interest and other sums due and payable
hereon, all costs of collecting or attempting to collect this Note, including reasonable attorneys’
fees and expenses.



     All parties to this Note, whether principal, surety, guarantor or endorser, hereby waive
presentment for payment, demand, protest, notice of protest and notice of dishonor.



     This Note shall be governed by the Laws of the State of New York (without giving effect to New
York’s principles of conflicts of law), provided that, as to the maximum lawful rate of interest
which may be charged or collected, if the Laws applicable to Lender permit it to charge or collect
a higher rate than the Laws of the State of New York, then such Law applicable to Lender shall
apply to Lender under this Note.



     IN WITNESS WHEREOF, Maker has executed and delivered this Note as of the date first above
written.



	 	 	 	 	 	 	 
	 	 	[NAME OF BORROWER]


	 

	 	By
	 	 
	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






2









 






	 	 	 	 	 	 	 	 	 
	Date

	 	Amount
of Advance
	 	Amount
of Payment
	 	Balance

Outstanding
	 	Notation By
	 

	 	 
	 	 
	 	 
	 	 





3









 






EXHIBIT E-1




FINANCIAL COVENANT COMPLIANCE CERTIFICATE




     This Certificate is furnished pursuant to Section 6.11(3) of that certain Amended and Restated
Revolving Loan Agreement dated December 19, 2006 (the “Loan Agreement”) by and among RD ABSECON
ASSOCIATES, L.P., RD BLOOMFIELD ASSOCIATES, LIMITED PARTNERSHIP, RD HOBSON ASSOCIATES, L.P., RD
VILLAGE ASSOCIATES LIMITED PARTNERSHIP, RD ABINGTON ASSOCIATES LIMITED PARTNERSHIP, ACADIA TOWN
LINE, LLC and RD METHUEN ASSOCIATES LIMITED PARTNERSHIP (collectively and individually, as the
context requires, “Borrower”) and BANK OF AMERICA, N.A. (in its individual capacity and not as
Administrative Agent, “BofA”) and BofA, in its capacity as Administrative Agent, Section 6.11(3) of
which Loan Agreement was agreed to and acknowledged by ACADIA REALTY LIMITED PARTNERSHIP
(“Guarantor”). Capitalized terms used in this Certificate and Schedule 1 attached hereto, unless
otherwise defined herein or in said Schedule 1, have the meanings given to them in the Loan
Agreement.



     The undersigned, the ___of Guarantor, hereby certifies to Lender that
Schedule 1 attached hereto sets forth the financial data and computations relating to Guarantor’s
compliance with the Liquidity Requirement, which data and computations, to the best knowledge and
belief of the undersigned, are true, complete and correct.



     The undersigned certifies that he/she is authorized to execute and deliver this Certificate on
behalf of Guarantor.



     WITNESS my hand this ___day of ___, ___.



	 	 	 	 	 
	 
	 	 	 	 
	 

	 	 

Name:
	 	 






 









 






EXHIBIT E-2




FINANCIAL COVENANT COMPLIANCE CERTIFICATE




     This Certificate is furnished pursuant to Section 6.11(3) of that certain Amended and Restated
Revolving Loan Agreement dated December 19, 2006 (“Loan Agreement”) by and among RD ABSECON
ASSOCIATES, L.P., RD BLOOMFIELD ASSOCIATES, LIMITED PARTNERSHIP, RD HOBSON ASSOCIATES, L.P., RD
VILLAGE ASSOCIATES LIMITED PARTNERSHIP, RD ABINGTON ASSOCIATES LIMITED PARTNERSHIP, ACADIA TOWN
LINE, LLC and RD METHUEN ASSOCIATES LIMITED PARTNERSHIP (collectively and individually, as the
context requires, “Borrower”) and BANK OF AMERICA, N.A. (in its individual capacity and not as
Administrative Agent, “BofA”) and BofA, in its capacity as Administrative Agent, Section 6.11(3) of
which Loan Agreement was agreed to and acknowledged by ACADIA REALTY LIMITED PARTNERSHIP
(“Guarantor”). Capitalized terms used in this Certificate and Schedule 1 attached hereto, unless
otherwise defined herein or in said Schedule 1, have the meanings given to them in the Loan
Agreement.



     The undersigned, the ___of Guarantor, hereby certifies to Lender that
Schedule 1 attached hereto sets forth the audited financial data and computations relating to
Guarantor’s compliance with the Net Worth Requirement and the Liquidity Requirement, which data and
computations, to the best knowledge and belief of the undersigned, are true, complete and correct.



     The undersigned certifies that he/she is authorized to execute and deliver this Certificate on
behalf of Guarantor.



     WITNESS my hand this ___day of _____________, ___.



	 	 	 	 	 
	 
	 	 	 	 
	 

	 	 

Name:
	 	 






 









 






EXHIBIT F




AUTHORIZATION LETTER




                         , 2006




[Name and address of Administrative Agent]





	 	Re:  	 	Amended and Restated Revolving Loan Agreement dated as of
December 19, 2006 (the “Loan Agreement”; capitalized terms not otherwise
defined herein shall have the meanings ascribed to such terms in the Loan
Agreement) among us, as Borrower, the Lenders named therein, and you, as
Administrative Agent for said Lenders




Dear Sir/Madam:




     In connection with the captioned Loan Agreement, we hereby designate any of the following
persons to give to you instructions, including notices required pursuant to the Loan Agreement,
orally, by telephone or teleprocess, or in writing:


Michael Nelsen

Robert Masters

Richard Hartmann

Jon Grisham




     Instructions may be honored on the oral, telephonic, teleprocess or written instructions of
anyone purporting to be any one of the above designated persons even if the instructions are for
the benefit of the person delivering them. We will furnish you with written confirmation of each
such instruction signed by any person designated above (including any telecopy which appears to
bear the signature of any person designated above) on the same day that the instruction is provided
to you, but your responsibility with respect to any instruction shall not be affected by your
failure to receive such confirmation or by its contents.



     You and Lenders shall be fully protected in, and shall incur no liability to us for, acting
upon any instructions which you in good faith believe to have been given by any person designated
above, and in no event shall you or Lenders be liable for special, consequential or punitive
damages. In addition, we agree to hold you and Lenders and your and their respective agents
harmless from any and all liability, loss and expense arising directly or indirectly out of
instructions that we provide to you in connection with the Loan Agreement except for liability,
loss or expense occasioned by your gross negligence or willful misconduct.



 









 





     Upon notice to us, you may, at your option, refuse to execute any instruction, or part
thereof, without incurring any responsibility for any loss, liability or expense arising out of
such refusal if you in good faith believe that the person delivering the instruction is not one of
the persons designated above or if the instruction is not accompanied by an authentication method
that we have agreed to in writing.



     We will promptly notify you in writing of any change in the persons designated above and,
until you have actually received such written notice and have had a reasonable opportunity to act
upon it, you are authorized to act upon instructions, even though the person delivering them may no
longer be authorized.



	 	 	 	 	 	 	 
	 	 	Very truly yours,


	 	 	[BORROWERS]


	 

	 	By
	 	 
	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






2









 






EXHIBIT G




SOLVENCY CERTIFICATE




     The person executing this certificate is the Senior Vice President and/or Chief Financial
Officer of Acadia Realty Trust, the General Partner of Acadia Realty Limited Partnership, sole
member of Acadia Property Holdings, LLC, the General Partner of ___, a ___
(“Borrower”), and is familiar with its properties, assets and businesses, and is duly authorized to
execute this certificate on behalf of Borrower pursuant to Section 4.01(2) of the Amended and
Restated Revolving Loan Agreement dated the date hereof (the “Loan Agreement”) among Borrower along
with certain affiliated co-borrowers, the lenders party thereto (each a “Lender” and collectively,
“Lenders”) and Bank of America, N.A., as administrative agent for Lenders (in such capacity,
together with its successors in such capacity, “Administrative Agent”). In executing this
Certificate, such person is acting solely in his or her capacity as the Senior Vice President
and/or Chief Financial Officer of Borrower, and not in his or her individual capacity. Unless
otherwise defined herein, terms defined in the Loan Agreement are used herein as therein defined.



     The undersigned further certifies that he has carefully reviewed the Loan Agreement and the
other Loan Documents and the contents of this Certificate and, in connection herewith, has made
such investigation and inquiries as he deems reasonably necessary and prudent therefor. The
undersigned further certifies that the financial information and assumptions which underlie and
form the basis for the representations made in this Certificate were reasonable when made and were
made in good faith and continue to be reasonable as of the date hereof.



     The undersigned understands that Administrative Agent and Lenders are relying on the truth and
accuracy of this Certificate in connection with the transactions contemplated by the Loan
Agreement.



     The undersigned certifies that Borrower is Solvent.



     IN WITNESS WHEREOF, the undersigned has executed this Certificate on __________, 2006.



	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 
	 	 
	 

	 	By
	 	 
	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






 









 






SCHEDULE A




	 	 	 	 	 
	 	 	Annual Loan Amount Reduction/
	Payment Date	 	Amortization Payment
	October 1, 2007

	 	$	981,828	 
	October 1, 2008

	 	$	1,063,319	 
	October 1, 2009

	 	$	1,151,574	 
	October 1, 2010

	 	$	1,247,154	 
	October 1, 2011

	 	$	1,350,668	 
	October 1, 2012

	 	$	1,462,772	 
	October 1, 2013

	 	$	1,584,182	 




 








 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	ARTICLE I
	 	DEFINITIONS AND RULES OF CONSTRUCTION	 	 	2	 
	Section 1.01.
	 	Definitions	 	 	2	 
	Section 1.02.
	 	Accounting Terms	 	 	15	 
	Section 1.03.
	 	Computation of Time Periods	 	 	15	 
	Section 1.04.
	 	Rules of Construction	 	 	15	 
	 
	 	 	 	 	 	 
	ARTICLE II
	 	THE LOAN	 	 	15	 
	Section 2.01.
	 	Generally	 	 	15	 
	Section 2.02.
	 	Nature of Lenders’ Obligations	 	 	16	 
	Section 2.03.
	 	Purpose	 	 	16	 
	Section 2.04.
	 	Advances	 	 	16	 
	Section 2.05.
	 	Procedure for Advance	 	 	17	 
	Section 2.06.
	 	Notes/Joint and Several Liability	 	 	17	 
	Section 2.07.
	 	Payments and Distributions; Certain Consequences of Delinquent Lender Status	 	 	18	 
	Section 2.08.
	 	Interest	 	 	19	 
	Section 2.09.
	 	Limitation on Number of Interest Periods	 	 	20	 
	Section 2.10.
	 	Conversions of Interest Rate	 	 	20	 
	Section 2.11.
	 	Inapplicability of LIBO Based Rate	 	 	20	 
	Section 2.12.
	 	Late Payment Premium	 	 	21	 
	Section 2.13.
	 	Voluntary Prepayments	 	 	21	 
	Section 2.14.
	 	Annual Commitment Reduction/Required Amortization	 	 	21	 
	Section 2.15.
	 	Nature of Lenders’ Obligations; Borrower’s Rights and Obligations in Event a Lender Fails to Make an Advance	 	 	21	 
	Section 2.16.
	 	Extension of Maturity	 	 	22	 
	 
	 	 	 	 	 	 
	ARTICLE III
	 	YIELD MAINTENANCE ETC	 	 	22	 
	Section 3.01.
	 	Additional Costs and Other Effects of Regulatory Changes; Taxes	 	 	22	 
	Section 3.02.
	 	Limitations on Availability of LIBO Based Rate	 	 	23	 
	Section 3.03.
	 	Certain Compensation	 	 	24	 
	Section 3.04.
	 	“Lender” to Include Participants	 	 	25	 
	 
	 	 	 	 	 	 
	ARTICLE IV
	 	CONDITIONS PRECEDENT	 	 	25	 
	Section 4.01.
	 	Conditions Precedent to Loan	 	 	25	 
	Section 4.02.
	 	Conditions to Advances After the Initial Advance	 	 	29	 
	 
	 	 	 	 	 	 
	ARTICLE V
	 	REPRESENTATIONS AND WARRANTIES	 	 	30	 
	Section 5.01.
	 	Due Formation, Power and Authority	 	 	30	 
	Section 5.02.
	 	Legally Enforceable Agreements	 	 	30	 
	Section 5.03.
	 	Financial Statements	 	 	30	 






 









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	Section 5.04.
	 	Compliance With Laws; Payment of Taxes	 	 	31	 
	Section 5.05.
	 	Litigation	 	 	31	 
	Section 5.06.
	 	No Conflicts or Defaults	 	 	31	 
	Section 5.07.
	 	Solvency	 	 	31	 
	Section 5.08.
	 	Governmental Regulation	 	 	31	 
	Section 5.09.
	 	Insurance	 	 	31	 
	Section 5.10.
	 	ERISA	 	 	31	 
	Section 5.11.
	 	Other Documents	 	 	32	 
	Section 5.12.
	 	No Defaults	 	 	32	 
	Section 5.13.
	 	Accuracy of Information; Full Disclosure	 	 	32	 
	Section 5.14.
	 	Separate Tax and Zoning Lot	 	 	32	 
	Section 5.15.
	 	The Improvements	 	 	32	 
	Section 5.16.
	 	Utility Services	 	 	33	 
	Section 5.17.
	 	Creation of Liens	 	 	33	 
	Section 5.18.
	 	Roads	 	 	33	 
	Section 5.19.
	 	Requisition as Reaffirmation	 	 	33	 
	Section 5.20.
	 	Patriot Act	 	 	33	 
	 
	 	 	 	 	 	 
	ARTICLE VI
	 	COVENANTS OF BORROWER	 	 	34	 
	Section 6.01.
	 	Compliance with Laws; Payment of Taxes	 	 	34	 
	Section 6.02.
	 	Leases and Premises Documents	 	 	34	 
	Section 6.03.
	 	Administration Fee/Inspection Fee	 	 	35	 
	Section 6.04.
	 	Continuing Accuracy of Representations and Warranties	 	 	35	 
	Section 6.05.
	 	Covenants, Restrictions and Easements	 	 	35	 
	Section 6.06.
	 	Financial Covenants	 	 	35	 
	Section 6.07.
	 	Payment of Costs	 	 	36	 
	Section 6.08.
	 	Brokers	 	 	36	 
	Section 6.09.
	 	Correction of Defects	 	 	36	 
	Section 6.10.
	 	Unused Fee	 	 	36	 
	Section 6.11.
	 	Reporting and Miscellaneous Document Requirements	 	 	36	 
	 
	 	 	 	 	 	 
	ARTICLE VII
	 	ADMINISTRATIVE AGENT; RELATIONS AMONG LENDERS	 	 	39	 
	Section 7.01.
	 	Appointment, Powers and Immunities
of Administrative Agent	 	 	39	 
	Section 7.02.
	 	Reliance by Administrative Agent	 	 	39	 
	Section 7.03.
	 	Defaults	 	 	40	 
	Section 7.04.
	 	Rights of Administrative Agent as Lender	 	 	40	 
	Section 7.05.
	 	Sharing of Costs by Lenders; Indemnification of Administrative Agent	 	 	40	 
	Section 7.06.
	 	Non-Reliance on Administrative Agent and Other Lenders	 	 	41	 
	Section 7.07.
	 	Failure of Administrative Agent to Act	 	 	41	 
	Section 7.08.
	 	Resignation or Removal of Administrative Agent	 	 	42	 
	Section 7.09.
	 	Amendments Concerning Agency Function	 	 	42	 
	Section 7.10.
	 	Liability of Administrative Agent	 	 	42	 






2









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	Section 7.11.
	 	Transfer of Agency Function	 	 	43	 
	Section 7.12.
	 	Non-Receipt of Funds by Administrative Agent; Adjustments	 	 	43	 
	Section 7.13.
	 	Withholding Taxes	 	 	43	 
	Section 7.14.
	 	Sharing of Payments among Lenders	 	 	44	 
	Section 7.15.
	 	Possession of Documents	 	 	44	 
	Section 7.16.
	 	Effect of a Lender’s Failure to Make an Advance	 	 	44	 
	Section 7.17.
	 	Cure by Delinquent Lender	 	 	46	 
	Section 7.18.
	 	Delinquent Lender Not Excused	 	 	47	 
	Section 7.19.
	 	Notices Regarding Delinquent Lender	 	 	47	 
	Section 7.20.
	 	Replacement Lender	 	 	47	 
	 
	 	 	 	 	 	 
	ARTICLE VIII
	 	GENERAL CONDITIONS AND PROVISIONS	 	 	48	 
	Section 8.01.
	 	Disbursement Not Waiver	 	 	48	 
	Section 8.02.
	 	No Third-Party Beneficiaries	 	 	49	 
	Section 8.03.
	 	Documentation Etc. Satisfactory	 	 	49	 
	Section 8.04.
	 	Lender’s Determination Conclusive	 	 	49	 
	Section 8.05.
	 	Notices	 	 	49	 
	Section 8.06.
	 	Amendments and Waivers	 	 	49	 
	Section 8.07.
	 	Assignment; Participation	 	 	50	 
	Section 8.08.
	 	Setoff	 	 	52	 
	Section 8.09.
	 	Successors and Assigns	 	 	52	 
	Section 8.10.
	 	Severability	 	 	52	 
	Section 8.11.
	 	Non-Waiver; Remedies Cumulative	 	 	52	 
	Section 8.12.
	 	Certain Waivers	 	 	53	 
	Section 8.13.
	 	Expenses; Indemnification	 	 	53	 
	Section 8.14.
	 	Gross-Up For Taxes	 	 	54	 
	Section 8.15.
	 	Counterparts	 	 	55	 
	Section 8.16.
	 	Governing Law; Jurisdiction	 	 	55	 
	Section 8.17.
	 	Integration	 	 	55	 
	Section 8.18.
	 	Releases	 	 	55	 
	Section 8.19.
	 	Substitution of Collateral	 	 	56	 
	Section 8.20.
	 	Exculpation	 	 	58	 
	Section 8.21.
	 	Letters of Credit	 	 	59	 
	Section 8.22.
	 	Concerning Irrevocable Authorizations	 	 	60	 
	Section 8.23.
	 	Usury	 	 	61	 
	Section 8.24.
	 	Documentation Satisfactory	 	 	61	 







3









 





 

 









FIRST AMENDMENT TO

AMENDED AND RESTATED REVOLVING LOAN AGREEMENT


dated as of February ___, 2007


between


BANK OF AMERICA, N.A.,

as a Lender and Arranger

(“Lender”),


BANK OF AMERICA, N.A.,

as Administrative Agent

(“Administrative Agent”)


and


RD ABINGTON ASSOCIATES LIMITED PARTNERSHIP (“RD Abington”),

ACADIA TOWN LINE, LLC (“Acadia Town Line”),

RD METHUEN ASSOCIATES LIMITED PARTNERSHIP (“RD Methuen”),

RD ABSECON ASSOCIATES, L.P. (“RD Absecon”),

RD BLOOMFIELD ASSOCIATES, LIMITED PARTNERSHIP (“RD Bloomfield”),

RD HOBSON ASSOCIATES, L.P. (“RD Hobson”),

and

RD VILLAGE ASSOCIATES LIMITED PARTNERSHIP (“RD Village”),

as Borrowers


(RD Abington, Acadia Town Line, RD Methuen, RD Absecon, RD Bloomfield,

RD Hobson and RD Village, individually and collectively, as the context requires, “Borrower”)



 

 






 









 


















FIRST AMENDMENT TO

AMENDED AND RESTATED REVOLVING LOAN AGREEMENT




     FIRST AMENDMENT TO AMENDED AND RESTATED REVOLVING LOAN AGREEMENT (this “Amendment”) dated as
of February ___, 2007 by and among RD ABINGTON ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited
partnership (“RD Abington”), ACADIA TOWN LINE, LLC, a Connecticut limited liability company
(“Acadia Town Line”), RD METHUEN ASSOCIATES LIMITED PARTNERSHIP, a Massachusetts limited
partnership (“RD Methuen”), RD ABSECON ASSOCIATES, L.P., a Delaware limited partnership (“RD
Absecon”), RD BLOOMFIELD ASSOCIATES, LIMITED PARTNERSHIP, a Delaware limited partnership (“RD
Bloomfield”), RD HOBSON ASSOCIATES, L.P., a Delaware limited partnership (“RD Hobson”) and RD
VILLAGE ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership (“RD Village”; RD Abington,
Acadia Town Line, RD Methuen, RD Absecon, RD Bloomfield, RD Hobson and RD Village, collectively and
individually, as the context requires, “Borrower”) and BANK OF AMERICA, N.A. (in its individual
capacity and not as Administrative Agent, “BofA”; BofA and each other lender who may become a
Lender pursuant to Section 8.07, each, a “Lender” and collectively, “Lenders”) and BANK OF AMERICA,
N.A., as Administrative Agent for Lenders (together with its successors in such capacity,
“Administrative Agent”).



WITNESSETH:




     WHEREAS, Lender, Administrative Agent and Borrower are all of the parties to that certain
Amended and Restated Revolving Loan Agreement dated as of December 19, 2006 (the “Loan Agreement”;
capitalized terms used herein and not otherwise defined shall have the meanings attached to them in
the Loan Agreement); and



     WHEREAS, Lenders, Administrative Agent and Borrower have agreed to modify the Loan Agreement
in the manner hereinafter set forth.



     NOW, THEREFORE, in consideration of the mutual promises and agreements herein contained,
Borrower, Administrative Agent and Lenders hereby agree as follows:



          ARTICLE IX The definition of “Special Holdback” in Section 1.01 of the Loan Agreement is
hereby deleted in its entirety and replaced with the following new definition:





          “
‘Special Holdback’ — $1,330,000, provided, however, that the Special
Holdback shall be $0 (zero) if, as and when RD Bloomfield delivers to Administrative Agent
an estoppel from Circuit City Stores, Inc. (‘CC’) certifying that, pursuant to the lease
between RD Bloomfield and CC, RD Bloomfield has completed ‘Landlord’s Work’ under such
lease, CC has accepted occupancy of the demised premises, has opened for business to the
public therein and has received



 









 






all required ‘Landlord Reimbursements’ thereunder and that there is no default under
such lease.”



          ARTICLE X Except as modified hereby, the Loan Agreement remains unmodified and in full force
and effect. Borrower hereby acknowledges that it is justly indebted to Lender under the Loan
Agreement, and reaffirms its representations, warranties, agreements and covenants set forth in the
Loan Agreement and the other Loan Documents, as modified hereby.




          ARTICLE XI Borrower represents and warrants that there exist no defenses, offsets or
counterclaims with respect to its obligations under any of the Loan Documents.




          ARTICLE XII Borrower agrees to pay Lender’s costs and expenses, including, without limitation,
reasonable attorneys’ fees and expenses in connection with the preparation, execution and delivery
of this Amendment.




          ARTICLE XIII The terms and provisions hereof shall be binding upon and inure to the benefit of
the parties hereto and their heirs, representatives, successors and assigns.




          ARTICLE XIV This Amendment and the rights and obligations of the parties hereto shall in all
respects be governed by, and construed and enforced in accordance with, the laws of the State of
New York (without giving effect to New York’s choice of law principles).




          ARTICLE XV This Amendment may be executed in multiple counterparts, each of which shall
constitute an original and together which shall constitute but one and the same instrument.




[Remainder of page intentionally left blank]





2









 








     IN WITNESS WHEREOF, the parties have executed and delivered this Amendment as of the day and
year first above written, intending the same to take effect as a sealed instrument. The execution
hereof by Borrower, Administrative Agent and Lenders constitutes a certification by the party or
parties executing on its behalf that each of them duly holds and is incumbent in the position
indicated under his or her name.



	 	 	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A. (as Lender and Administrative Agent)	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	By	 	 	 	 	 	 
	 
	 	 	 	Denise M. Smyth	 	 	 	 
	 
	 	 	 	Senior Vice President	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	RD BLOOMFIELD ASSOCIATES, LIMITED PARTNERSHIP, a Delaware limited partnership
	 	 	 	 
	 	 	RD HOBSON ASSOCIATES, L.P., a Delaware limited partnership
	 	 	 	 
	 	 	RD VILLAGE ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership
	 	 	 	 
	 	 	RD ABINGTON ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership
	 	 	 	 
	 	 	RD METHUEN ASSOCIATES LIMITED PARTNERSHIP, a Massachusetts limited partnership
	 	 	 	 
	 
	 	 	By:   Acadia
Property Holdings, LLC, its general
         partner	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:   Acadia
Realty Limited Partnership, its sole
         member	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:   Acadia Realty Trust, its general partner	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	By	 	 	 	 	 	 
	 
	 	 	 	Robert Masters	 	 	 	 
	 
	 	 	 	Senior Vice President	 	 	 	 






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	 	 	RD ABSECON ASSOCIATES, L.P., a Delaware limited
partnership	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By: 	 	RD Absecon, Inc., a Delaware corporation, its general partner	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	By	 	 	 	 	 	 
	 
	 	 	 	Robert Masters	 	 	 	 
	 
	 	 	 	Senior Vice President	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	ACADIA TOWN LINE, LLC, a Connecticut limited liability company	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	By:	 	Acadia Realty Limited Partnership,
a Delaware limited partnership, its sole member	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	By:	 	Acadia Realty Trust, a Maryland real estate	 	 	 	 
	 
	 	 	 	investment trust, its general partner	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	By	 	 	 	 	 	 
	 
	 	 	 	Robert Masters	 	 	 	 
	 
	 	 	 	Senior Vice President	 	 	 	 







ii