Exhibit 10.15




 




FIRST AMENDED AND RESTATED TERM LOAN

AGREEMENT




 




BY AND AMONG




 




NEW PLAN EXCEL REALTY TRUST, INC.,




 




THE LENDERS PARTY HERETO,




 




FLEET NATIONAL BANK




 




AS ADMINISTRATIVE AGENT, AND




 




FLEET SECURITIES, INC. AS SOLE LEAD ARRANGER




 




AND SYNDICATION AGENT




 




DATED AS OF NOVEMBER 6, 2002




 





























 




FIRST AMENDED

AND RESTATED TERM LOAN AGREEMENT, dated as of November 6, 2002, by and

among NEW PLAN EXCEL REALTY TRUST, INC., a Maryland corporation (the

“Borrower”), each lender party hereto or which becomes a “Lender” pursuant to

the provisions of Section 11.7 (each a “Lender” and, collectively, the

“Lenders”), and FLEET NATIONAL BANK (“FNB”), as administrative agent (in such

capacity, the “Administrative Agent”).




 




RECITALS




 




WHEREAS,

Borrower, FNB, certain other lenders and Administrative Agent entered into that

certain Term Loan Agreement dated as of March 1, 2002 (the “Original Loan

Agreement”); and




 




WHEREAS,

Borrower has requested that the Lenders and Administrative Agent amend certain

provisions of the Original Loan Agreement; and




 




WHEREAS,

Administrative Agent, Borrower and the Lenders desire to amend and restate the

Original Loan Agreement in its entirety;




 




NOW,

THEREFORE, in consideration of the recitals herein and the mutual covenants

contained herein, the parties hereto hereby amend and restate the Original Loan

Agreement in its entirety as follows:




 




1.             DEFINITIONS.




 




1.1           Defined Terms.




 




As used in

this Agreement, terms defined in the preamble have the meanings therein

indicated, and the following terms have the following meanings:




 




“Accountants”:  any of PricewaterhouseCoopers LLP; Deloitte

& Touche LLP; Ernst & Young LLP; KPMG LLP; or any successor to any of

the foregoing; or such other firm of certified public accountants selected by

the Borrower and satisfactory to the Administrative Agent.




 




“Acquisitions”:  collectively, the CenterAmerica Acquisition

and the EIG Acquisition.




 




“Adjusted

Consolidated Total Assets”:  on a

consolidated basis for Borrower and its Subsidiaries, the sum (without

duplication) of the following:




 




(i)            the Operating Property Value; plus




 




(ii)           the book value of Land Assets,

Redevelopment Assets, New Construction Assets and Notes Receivable of Borrower

and its Subsidiaries (including, without limitation, all capitalized costs

incurred in connection therewith) on the last day of the fiscal quarter just

ended; plus




 





























 




(iii)          to the extent not included pursuant to

(ii) above, Borrower’s pro rata share of the book value of Land Assets, New

Construction Assets, Redevelopment Assets and Notes Receivable of Joint

Ventures (including, without limitation, all capitalized costs incurred in

connection therewith) on the last day of the fiscal quarter just ended; plus




 




(iv)          the aggregate amount of the unpledged

portion of (x) all unrestricted cash and marketable securities of Borrower and

its Subsidiaries (including, without limitation, Investments described in

Sections 8.3(a) through 8.3(f)) plus (y) all restricted cash held by any

Person serving as a “qualified intermediary” for purposes of an exchange pursuant

to Section 1031 of the Code on behalf of Borrower or any of its Subsidiaries.




 




Adjusted

Consolidated Total Assets shall be calculated on a pro forma basis as if assets

acquired during the relevant period were owned as of the beginning of the

relevant period, and all assets disposed of during the relevant period were not

owned during any portion of the relevant period.  For purposes of calculating the percentages set forth in Section

8.15, Adjusted Consolidated Total Assets shall include an amount equal to the

aggregate amount of the then undrawn face amount of the Fleet Letter of Credit

(as the same may be reduced from time to time), provided, however, that upon

the expiration, termination or return of the Fleet Letter of Credit, an amount

equal to the amount of the Fleet Letter of Credit shall no longer be included

within the calculation of Adjusted Consolidated Total Assets.




 




“Adjusted

Net Operating Income”:  for any

period, the aggregate amount of the Net Operating Income from each Unencumbered

Asset or Operating Property, as applicable, during such period, less the

Capital Expense Reserve for such Unencumbered Asset or Operating Property, as

applicable, during such period.




 




“Advance”:  a Prime Rate Loan or a LIBOR Loan, as the

case may be.




 




“Affected

Advance”:  as defined in Section

2.10.




 




“Affected

Principal Amount”:  in the event

that (i) the Borrower shall fail for any reason to borrow or convert after it

shall have notified the Administrative Agent of its intent to do so in any

instance in which it shall have requested a LIBOR Loan on the Effective Date or

pursuant to Section 2.8, an amount equal to the principal amount of such LIBOR

Loan; (ii) a LIBOR Loan shall terminate for any reason prior to the last day of

the Interest Period applicable thereto, an amount equal to the principal amount

of such LIBOR Loan; or (iii) the Borrower shall prepay or repay all or any part

of the principal amount of a LIBOR Loan prior to the last day of the Interest

Period applicable thereto (including, without limitation, any mandatory

prepayment or a prepayment resulting from acceleration or illegality), an

amount equal to the principal amount of such LIBOR Loan so prepaid or repaid.




 




“Affiliate”:  as to any Person, any other Person which,

directly or indirectly, is in control of, is controlled by, or is under common

control with, such Person.  For purposes

of this definition, control of a Person shall mean the power, direct or

indirect, (i) to vote 10% or more of the securities having ordinary voting

power for the election of directors of such Person or (ii) to direct or cause

the direction of the management and policies of such Person, whether by

contract or otherwise.




 




2





























 




“Agreement”:  this First Amended and Restated Term Loan

Agreement, as the same may be amended, supplemented or otherwise modified from

time to time.




 




“Agreement

Regarding Fees”:  that certain

Agreement Regarding Fees dated of even date herewith between FNB and the

Borrower.




 




“Ancillary

Assets”:  at any time (without

duplication), (a) all Real Property of the Borrower and its Subsidiaries which

is (i) a mortgage, (ii) a New Construction Asset, or (iii) any other Real

Property other than an open air shopping center (including single tenant retail

properties) or a residential apartment building or a residential apartment

community (and appurtenant amenities), and (b) all Investments of the Borrower

and its Subsidiaries of the type described in Section 8.3(h) and (q).




 




“Applicable

Lending Office”:  in respect of any

Lender, (A) in the case of such Lender’s Prime Rate Loans, its Domestic Lending

Office and (B) in the case of such Lender’s LIBOR Loans, its LIBOR Lending

Office.




 




“Applicable

Margin”:  with respect to the unpaid

principal balance of Prime Rate Loans or LIBOR Loans, at all times during which

the applicable Pricing Level set forth below is in effect, the respective

percentage set forth below next to such Pricing Level:




 




	

  Pricing Level


  	

   


  	

  LIBOR Loans


  	

   


  	

  Prime Rate Loans


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

  Pricing Level I


  	

   


  	

  0.80


  	

  %


  	

  0


  	

  %


  
	

  Pricing Level II


  	

   


  	

  0.90


  	

  %


  	

  0


  	

  %


  
	

  Pricing Level III


  	

   


  	

  1.15


  	

  %


  	

  0


  	

  %


  
	

  Pricing Level IV


  	

   


  	

  1.25


  	

  %


  	

  0


  	

  %


  
	

  Pricing Level V


  	

   


  	

  1.50


  	

  %


  	

  0.25


  	

  %


  





 




Changes in the

Applicable Margin resulting from a change in a Pricing Level shall become

effective as of the opening of business upon the date of any change in the

Senior Debt Rating of the Borrower, as determined by S&P or Moody’s, as the

case may be, which would affect the applicable Pricing Level.




 




“Assignment

and Assumption Agreement”:  an

assignment and assumption agreement executed by an assignor and an assignee

pursuant to which such assignor assigns to such assignee all or any portion of

such assignor’s Notes and Commitments, substantially in the form of Exhibit A,

with such changes thereto as shall be reasonably acceptable to the

Administrative Agent.




 




“Assignment

Fee”:  as defined in Section

11.7(b).




 




3





























 




“Authorized

Signatory”:  the chairman of the

board, the chief executive officer, the president, any executive vice president,

the Chief Financial Officer or any other duly authorized officer (acceptable to

the Administrative Agent) of the Borrower.




 




“Benefited

Lender”:  as defined in Section

11.10.




 




“Borrower’s

Interest”:  for any period, (i) with

respect to Unencumbered Assets or Operating Properties, as applicable, owned by

a DownREIT Partnership, a fraction, expressed as a percentage, the numerator of

which is the Net Operating Income of such Unencumbered Assets or Operating

Properties, as applicable, for such period, less any distributions required to

be made to partners or members of such DownREIT Partnership, other than the

Borrower and its Subsidiaries, and the denominator of which is the Net

Operating Income of such Unencumbered Assets or Operating Properties, as applicable,

for such period, and (ii) with respect to any Ancillary Asset or Redevelopment

Asset, the percentage of profits and losses with respect thereto which the

Borrower or its Subsidiaries, directly or indirectly, may be entitled to

receive for such period.




 




“Borrowing

Date”:  the date on which the

Borrower requests the Lenders to make Loans, which date shall be the Effective

Date.




 




“Business

Day”:  for all purposes other than

as set forth in clause (ii) below, (i) any day other than a Saturday, a Sunday

or a day on which commercial banks located in Boston, Massachusetts or New York

City, New York, are authorized or required by law or other governmental action

to close and (ii) with respect to all notices and determinations in connection

with, and payments of principal and interest on, LIBOR Loans, any day which is

also a LIBOR Business Day.




 




“Capital

Event”:  the consummation of asset

sales after the date hereof in a single transaction or series of transactions,

the total net proceeds of which are $190,000,000.00 or more.




 




“Capital

Expense Reserve”:  during any

period, (i) with respect to each Unencumbered Asset or Operating Property, as

applicable, other than a residential apartment building or residential

apartment community, an amount equal to (A) a per annum rate of $.20 times (B)

the total Net Rentable Area of such Unencumbered Asset or Operating Property,

as applicable, and (ii) with respect to each Unencumbered Asset or Operating

Property, as applicable, that is a residential apartment building or residential

apartment community, an amount equal to (A) $150 times (B) the number of

apartment units in such residential apartment building or community (in each

case whether or not such reserves are actually established by the Borrower).




 




“Capital

Leases”:  leases which have been, or

under GAAP are required to be, capitalized.




 




“CenterAmerica

Acquisition”:  the acquisition by

Borrower or any one or more of its Subsidiaries, in one or more transactions,

for approximately $660,000,000 (but not less than $450,000,000) of a

significant portion of the CenterAmerica Property Trust, L.P. portfolio.




 




“Change of

Control”:  the occurrence of any one

of the following events:




 




4





























 




(a)           any Person or Persons acting as a

group shall acquire direct or indirect ownership of 30% or more of the

Borrower’s common Stock; or




 




(b)           during any twelve month period on or

after the Effective Date, individuals who at the beginning of such period

constituted the Board of Directors of the Borrower (together with any new

directors whose election by the Board of Directors or whose nomination for

election by the shareholders of the Borrower was approved by a vote of at least

a majority of the members of the Board of Directors then in office who either

were members of the Board of Directors at the beginning of such period or whose

election or nomination for election was previously so approved) cease for any

reason to constitute a majority of the members of the Board of Directors then

in office; or




 




(c)           there occurs a change of control of

the Borrower of a nature that would be required to be reported in response to

Item 1a of Form 8-K filed pursuant to Section 13 or 15 under the Securities

Exchange Act of 1934, or in any other filing by the Borrower with the

Securities and Exchange Commission; or




 




(d)           the Borrower consolidates with, is

acquired by, or merges into or with any Person (other than a merger permitted

by Section 8.2).




 




“Chief

Financial Officer”:  at any time,

the chief financial officer of the Borrower, or if the Borrower does not have a

chief financial officer at such time, the officer designated by the Borrower as

its principal financial officer or such other officer of the Borrower that is

acceptable to the Administrative Agent.




 




“Code”:

 the Internal Revenue Code of 1986, as

the same may be amended from time to time, or any successor thereto, and the

rules and regulations issued thereunder, as from time to time in effect.




 




“Commitment”:  in respect of any Lender, such Lender’s

undertaking to make Loans, subject to the terms and conditions hereof, in an

aggregate outstanding principal amount not exceeding such Lender’s Commitment

Amount.




 




“Commitment

Amount”:  the amount set forth next

to the name of such Lender in Exhibit B under the heading

“Commitments” as such Lender’s Commitment Amount.




 




“Commitment

Percentage”:  on any day, and as to

any Lender, the quotient of (i) such Lender’s Commitment Amount on such day,

divided by (ii) the Commitments of all Lenders on such day.




 




“Compliance

Certificate”:  a certificate

substantially in the form of Exhibit D.




 




“Consolidated”:  the Borrower and its Subsidiaries which are

consolidated for financial reporting purposes.




 




“Consolidated

EBITDA”:  with respect to any period

an amount equal to the EBITDA of Borrower and its Subsidiaries for such period,

Consolidated in accordance with GAAP.




 




5





























 




“Consolidated

Fixed Charges”:  during any period,

the sum of each of the following with respect to the Borrower and its

Subsidiaries (without duplication), determined on a Consolidated basis in

accordance with GAAP:  (i) the aggregate

amount of all interest expense, both expensed and capitalized (including

Consolidated Interest Expense) for such period, (ii) the aggregate of all

scheduled principal amounts that become payable during such period in respect

of any Indebtedness of the Borrower or its Subsidiaries (excluding balloon

payments at maturity) and (iii) the aggregate amount of all cash dividends paid

during such period in respect of preferred stock of the Borrower or its

Subsidiaries.




 




“Consolidated

Interest Expense”:  for any period,

interest and fees accrued, accreted or paid by the Borrower and its

Subsidiaries during such period in respect of Consolidated Total Indebtedness,

determined in accordance with GAAP, including (a) the amortization of debt

discounts to the extent included in interest expense in accordance with GAAP,

(b) the amortization of all fees (including fees with respect to Hedging

Agreements entered into by the Borrower or any of its Subsidiaries) payable in

connection with the incurrence of any Indebtedness to the extent included in

interest expense in accordance with GAAP and (c) the portion of any rents

payable under capital leases allocable to interest expense in accordance with

GAAP.




 




“Consolidated

Total Indebtedness”:  as of any

date, the aggregate principal amount of all Indebtedness of the Borrower and

its Subsidiaries determined on a Consolidated basis in accordance with GAAP,

plus, if not otherwise required to be reflected in the Borrower’s Consolidated

balance sheet (and without duplication) (i) Contingent Obligations of the

Borrower and its Subsidiaries on such date which are required in accordance

with GAAP to be disclosed in a footnote to any such balance sheet, and (ii) any

guarantee by the Borrower of any Indebtedness of an unconsolidated Subsidiary

or Joint Venture in which the Borrower is a direct or indirect investor (to the

full extent of the amount of such guaranteed Indebtedness on such date);

provided, however, that with respect to Joint Ventures in which Borrower is a

direct or indirect investor that are not consolidated in the Borrower’s

Consolidated balance sheet, Consolidated Total Indebtedness shall also include

(x) the aggregate principal amount of all Indebtedness of such Joint Ventures

if such Indebtedness is recourse to the Borrower or one of its Subsidiaries,

and (y) Borrower’s pro rata share of the aggregate principal amount of all

Indebtedness of such Joint Ventures if such Indebtedness is Non-Recourse

Indebtedness.  Notwithstanding the

foregoing, unfunded portions of any Indebtedness (and any Contingent

Obligations relating solely to such unfunded amounts) shall not be included in

Consolidated Total Indebtedness.




 




“Contingent

Obligation”:  as to any Person, any

obligation of such Person guaranteeing or in effect guaranteeing any

Indebtedness, leases, dividends or other obligations (“Primary Obligations”) of

any other Person (the “Primary Obligor”) in any manner, whether directly or

indirectly, and whether arising from partnership or keep-well agreements,

including, without limitation, any obligation of such Person, whether

contingent or not contingent (a) to purchase any such Primary Obligation or any

Property constituting direct or indirect security therefor, (b) to advance or

supply funds (i) for the purchase or payment of any such Primary Obligation or

(ii) to maintain working capital or equity capital of the Primary Obligor or

otherwise to maintain net worth, solvency or other financial statement

condition of the Primary Obligor, (c) to purchase Property, securities or

services primarily for the purpose of assuring the beneficiary of any such

Primary Obligation of the ability of the Primary Obligor to make payment of

such Primary 




 




6





























 




Obligation or (d) otherwise to

assure, protect from loss or hold harmless the beneficiary of such Primary

Obligation against loss in respect thereof; provided, however, that the term

Contingent Obligation shall not include (a) the endorsement of instruments

for deposit or collection in the ordinary course of business, or

(b) guarantees or carve-outs with respect to claims of the types

referenced in (i)-(iv) of the definition of Non-Recourse Exclusions until a

claim is made with respect thereto, and then shall be included only to the

extent of the amount of such claim.  The

term Contingent Obligation shall also include the liability of a general partner

in respect of the liabilities of the partnership in which it is a general

partner, but shall not include the liability of a member (managing or

otherwise) of a limited liability company in respect of the liabilities of such

limited liability company to the extent not imposed by agreement or by law.  The amount of any Contingent Obligation of a

Person shall be deemed to be an amount equal to the stated or determinable

amount of the Primary Obligation in respect of which such Contingent Obligation

is made or, if not stated or determinable, the maximum reasonably anticipated

liability in respect thereof as determined by such Person in good faith.




 




“Conversion

Date”:  the date on which a LIBOR

Loan is converted to a Prime Rate Loan, or the date on which a Prime Rate Loan

is converted to a LIBOR Loan, or the date on which a LIBOR Loan is converted to

a new LIBOR Loan, all in accordance with Section 2.8.




 




“Credit

Party”:  the Administrative Agent,

the Lead Arranger, each Lender and their successors and assigns.




 




“Default”:  any event or condition which constitutes an

Event of Default or which, with the giving of notice, the lapse of time, or any

other condition, would, unless cured or waived, become an Event of Default.




 




“Defaulting

Lender”:  at any time, any Lender

that, at such time, (i) has failed to comply with any of its obligations to

make a Loan as required pursuant to Section 2.3 of this Agreement, (ii) has

failed to pay to the Administrative Agent or any Lender an amount owed by such

Lender pursuant to the terms of this Agreement or any of the other Loan

Documents, or (iii) has advised the Administrative Agent that it does not

intend to comply with its obligations under Section  2.3 by reason of having been deemed insolvent or having become

subject to a bankruptcy or insolvency proceeding.




 




“Dollars”

and “$”:  lawful currency of the

United States of America.




 




“Domestic

Lending Office”:  in respect of any

Lender, initially, the office or offices of such Lender designated as such on Exhibit

B; thereafter, such other office of such Lender through which it shall be

making or maintaining Prime Rate Loans, as reported by such Lender to the

Administrative Agent and the Borrower.




 




“Domestic

Reference Lender”:  FNB or such

other Lender as may become the Administrative Agent hereunder.




 




“DownREIT

Partnership”:  Excel Realty

Partners, L.P. and any other partnership or limited liability company hereafter

created by the Borrower for the purpose of acquiring assets qualifying as “real

estate assets” under Section 856(c) of the Code through the issuance of

partnership or limited liability company units in such partnership or limited

liability company to




 




7





























 




third parties, provided that,

in the case of each such entity (including Excel Realty Partners, L.P.)

(i) the Borrower or a wholly owned Subsidiary of the Borrower is the sole

general partner or managing member of such partnership or limited liability

company, as the case may be, and (ii) the Borrower or its wholly owned

Subsidiary shall be entitled to receive not less than 99% of the net income and

gains before depreciation, if any, from such partnership or limited liability

company after the limited partners or non-managing members of such partnership

or limited liability company receive a stipulated distribution. Any partnership

or limited liability company created after the Effective Date must be approved

by the Administrative Agent as a “DownREIT Partnership” for purposes of being

included in this definition.




 




“EBITDA”:  with respect to a Person or a Subsidiary of

a Person (or any asset of a Person or a Subsidiary of such Person) for any

period, an amount equal to the sum of (a) the net income (or loss) of such

Person (or attributable to such asset) for such period plus (b)

depreciation and amortization, interest, and any extraordinary or non-recurring

losses or charges for impairment of real estate deducted in calculating such

net income minus (c) any extraordinary or non-recurring gains included

in calculating such net income, all as determined in accordance with GAAP.  EBITDA shall be calculated on a

pro forma basis as if assets acquired during the relevant period were

owned as of the beginning of the relevant period, and all assets disposed of

during the relevant period were not owned during any portion of the relevant

period.  Adjustments for unconsolidated

partnerships and Joint Ventures will be calculated to reflect EBITDA on the

same basis.




 




“Effective

Date”:  the date on which the

conditions specified in Section 5 are satisfied.




 




“EIG

Acquisition”:  the acquisition by

the Borrower or one or more of its Subsidiaries, in one or more transactions,

for not less than $375,000,000 (of which up to $30,000,000 may be in the form

of units in a DownREIT Partnership) of a portfolio of neighborhood and

community shopping centers from EIG Realty, Inc. and its Affiliates.




 




“EIG

Acquisition Date”:  the date by

which each of the following shall have occurred: (i) the payment (other

than a good faith deposit or down payment) by the Borrower or any one or more

of its Subsidiaries of the purchase price for the assets which are the subject

of the EIG Acquisition, and (ii) the transfer to the Borrower or any one or

more of its Subsidiaries (or to an Exchange Accommodation Titleholder to the

extent permitted in the definition of “Unencumbered Assets”) of the assets

which are the subject of the EIG Acquisition.




 




“Environmental

Laws”:  any and all federal, state

and local laws relating to the environment, the use, storage, transporting,

manufacturing, handling, discharge, disposal or recycling of hazardous

substances, materials or pollutants or industrial hygiene and including,

without limitation, (i) the Comprehensive Environmental Response, Compensation

and Liability Act, as amended, 42 USCA §9601 et seq.; (ii) the Resource

Conservation and Recovery Act of 1976, as amended, 42 USCA §6901 et seq.; (iii)

the Toxic Substance Control Act, as amended, 15 USCA §2601 et seq.; (iv) the

Water Pollution Control Act, as amended, 33 USCA §1251 et seq.; (v) the Clean

Air Act, as amended, 42 USCA §7401 et seq.; (vi) the Hazardous Material

Transportation Act, as amended, 49 USCA §1801 et seq. and (viii) all rules,

regulations, judgments, decrees, injunctions and restrictions thereunder and

any analogous state law.




 




8





























 




“Environmental

Risk Property”:  any Real Property

of the Borrower, a Subsidiary or a DownREIT Partnership in respect of which, at

any time:




 




(i)            Hazardous Substances are (A)

generated or manufactured on, transported to or from, treated at, stored at or

discharged from such Real Property in violation of any Environmental Laws; (B)

discharged into subsurface waters under such Real Property in violation of any

Environmental Laws; or (C) discharged from such Real Property on or into

property or waters (including subsurface waters) adjacent to such Real Property

in violation of any Environmental Laws, and any of the foregoing events in (A),

(B) or (C) has an Adverse Environmental Impact; or




 




(ii)           there exists with respect to such

Real Property (A) a claim, demand, suit, action, proceeding, condition, report,

directive, lien, violation, or non-compliance concerning any liability

(including, without limitation, potential liability for enforcement,

investigatory costs, cleanup costs, government response costs, removal costs,

remedial costs, natural resources damages, property damages, personal injuries

or penalties) arising in connection with: 

(x) any non-compliance with or violation of the requirements of any applicable

Environmental Laws, or (y) the presence of any Hazardous Substance on such Real

Property or the release of any Hazardous Substance into the environment from

such Real Property, or (B) any actual liability in connection with the presence

of any Hazardous Substance on such Real Property or the release of any

Hazardous Substance into the environment from such Real Property, and any of

the foregoing events in (A) or (B) has an Adverse Environmental Impact.




 




For purposes

of this definition, the term “Adverse Environmental Impact” shall mean any

event described in clauses (A), (B) or (C) of paragraph (i) above or clauses

(A) or (B) of paragraph (ii) above which could reasonably be expected to have a

material adverse effect on (1) the value of such Real Property, (2) the

marketability of such Real Property, or (3) the ability to finance or refinance

such Real Property.




 




“ERISA”:  the Employee Retirement Income Security Act

of 1974, as amended from time to time, and the rules and regulations issued

thereunder, as from time to time in effect.




 




“ERISA

Affiliate”:  any Person which is a

member of any group of organizations (i) described in Section 414(b) or (c) of

the Code of which the Borrower is a member, or (ii) solely for purposes of

potential liability under Section 302(c)(11) of ERISA and Section 412(c)(11) of

the Code and the Lien created under Section 302(f) of ERISA and Section 412(n)

of the Code, described in Section 414(m) or (o) of the Code of which the

Borrower is a member.




 




“ERISA

Liabilities”:  without duplication,

the aggregate of all unfunded vested benefits under all Plans and all potential

withdrawal liabilities under all Multiemployer Plans.




 




“Event of

Default”:  any of the events

specified in Section 9, provided that any requirement for the giving of notice,

the lapse of time or any other condition specified in Section 9 has

occurred or been satisfied.




 




“Exchange

Accommodation Titleholder”:  An

entity approved by Administrative Agent to act as an exchange accommodation

titleholder under Rev. Proc. 2000-37.




 




9





























 




“Excluded

Subsidiary”:  (i) Excel Realty

Partners, L.P., a Delaware limited partnership, CA New Plan Floating Rate

Partnership, L.P., a Delaware limited partnership, and CA New Plan Fixed Rate

Partnership, L.P., a Delaware limited partnership, (ii) any Subsidiary all

of the Real Property of which is encumbered in favor of a Person other than

Borrower or any of its Subsidiaries, (iii) any Consolidated Joint Venture

or any Subsidiary, the sole asset of which is an interest as a partner, member

or similar interest in an unconsolidated or Consolidated Joint Venture,

(iv) any Subsidiary that does not directly own any Real Property, or (v)

any Subsidiary which is established as a special purpose entity to own Real

Property or equity interests related thereto in a bankruptcy remote manner to

secure secured Indebtedness permitted by this Agreement.




 




“Existing

Credit Agreement”:  that certain

Revolving Credit Agreement dated as of April 26, 2002 among the Borrower,

FNB as Administrative Agent, and the lenders signatory thereto, as subsequently

amended, and any restatements, consolidations, replacements or refinancings

thereof.




 




“Federal

Funds Rate”:  for any day, a rate

per annum (expressed as a decimal, rounded upwards, if necessary, to the next

higher 1/100 of 1%), equal to the weighted average of the rates on overnight

federal funds transactions with members of the Federal Reserve System arranged

by federal funds brokers on such day, as published by the Federal Reserve Bank

of New York on the Business Day next succeeding such day, provided that (i) if

the day for which such rate is to be determined is not a Business Day, the

Federal Funds Rate for such day shall be such rate on such transactions on the

next preceding Business Day as so published on the next succeeding Business

Day, and (ii) if such rate is not so published for any day, the Federal Funds

Rate for such day shall be the average of the quotations for such day on such

transactions received by FNB as determined by FNB and reported to the

Administrative Agent.




 




“Financial

Statements”:  as defined in Section

4.13.




 




“Fixed

Charge Coverage Ratio”:  on any date

of determination, for the period of four (4) fiscal quarters just ended prior

to the date of determination, the ratio of (i) Consolidated EBITDA for

such period to (ii) Consolidated Fixed Charges for such period.




 




“Fleet

Letter of Credit”:  that certain

irrevocable standby letter of credit issued by FNB for the benefit of Bank of

America, N.A. for the account of Borrower, dated September 13, 2001, in the

face amount of $31,306,511.00, as originally issued or as amended, modified,

extended, renewed or supplemented.




 




“FNB”:  Fleet National Bank.




 




“FNB Fee”:  as defined in Section 3.1.




 




“Funds from

Operations”:  with respect to any

Person for any fiscal period, the sum of (i) the net income of such Person for

such fiscal period (computed in accordance with GAAP), excluding gains (or

losses) from debt restructuring and sales of property, (ii) depreciation and

amortization, and (iii) other non-cash items, and after adjustments for

unconsolidated partnerships and Joint Ventures.  Adjustments for unconsolidated partnerships and Joint Ventures

will be calculated to reflect funds from operations on the same basis.




 




10





























 




“GAAP”:  generally accepted accounting principles set

forth in the opinions and pronouncements of the Accounting Principles Board and

the American Institute of Certified Public Accountants and statements and

pronouncements of the Financial Accounting Standards Board or in such other

statement by such other entity as may be approved by a significant segment of

the accounting profession, which are applicable to the circumstances as of the

date of determination, consistently applied.




 




“Governmental

Authority”:  any nation or

government, any state or other political subdivision thereof, any entity

exercising executive, legislative, judicial, regulatory or administrative

functions of or pertaining to government and any court or arbitrator.




 




“Ground

Lease”:  a ground lease in favor of

the Borrower, a wholly owned Subsidiary or a DownREIT Partnership which has an

unexpired term of 30 years or more (inclusive of any tenant-controlled renewal

options) and which includes within its terms those rights customarily required

by mortgagees making a loan secured by the interest of the holder of the

leasehold estate demised pursuant to such ground lease.




 




“Guaranty”:  collectively, (i) an Amended and Restated

Guaranty substantially in the form of Exhibit F executed by each of the

Subsidiary Guarantors identified on Schedule 4.4 and delivered to the

Administrative Agent for the benefit of the Lenders on or prior to the

Effective Date, and (ii) each additional Guaranty substantially in the form of Exhibit

F executed by each Required Additional Guarantor and delivered to the

Administrative Agent for the benefit of the Lenders after the Effective Date.




 




“Hazardous

Substance”:  any hazardous or toxic

substance, material or waste, including, but not limited to, (i) those

substances, materials, and wastes listed in the United States Department of

Transportation Hazardous Materials Table (49 CFR 172.101) or by the

Environmental Protection Agency as hazardous substances (40 CFR Part 302) and

amendments thereto and replacements therefor and (ii) any substance, pollutant

or material defined as, or designated in, any Environmental Law as a “hazardous

substance,” “toxic substance,” “hazardous material,” “hazardous waste,”

“restricted hazardous waste,” “pollutant,” “toxic pollutant” or words of

similar import.




 




“Hedging

Agreement”:  any interest rate

protection agreement, foreign currency exchange agreement, commodity price

protection agreement or other interest or currency exchange rate or commodity

price hedging arrangement.




 




“Highest

Lawful Rate”:  with respect to any

Lender, the maximum rate of interest, if any, that at any time or from time to

time may be contracted for, taken, charged or received by such Lender on its

Note or which may be owing to such Lender pursuant to this Agreement under the

laws applicable to such Lender and this Agreement.




 




“Indebtedness”:  as to any Person, at a particular time, all

items which constitute, without duplication, (a) indebtedness for borrowed

money (including, without limitation, indebtedness under this Agreement and the

Notes) or the deferred purchase price of Property (other than trade payables

incurred in the ordinary course of business), (b) indebtedness evidenced by

notes, bonds, debentures or similar instruments, (c) obligations with respect

to any conditional sale or




 




11





























 




title retention agreement, (d)

indebtedness arising under acceptance facilities and the amount available to be

drawn under all letters of credit issued for the account of such Person and,

without duplication, all drafts drawn thereunder to the extent such Person

shall not have reimbursed the issuer in respect of the issuer’s payment of such

drafts, (e) all liabilities secured by any Lien on any Property owned by such

Person even though such Person has not assumed or otherwise become liable for

the payment thereof (other than carriers’, warehousemen’s, mechanics’,

repairmen’s or other like non-consensual statutory Liens arising in the

ordinary course of business), (f) obligations under Capital Leases, (g)

Contingent Obligations and (h) ERISA Liabilities; provided, however, that

the term Indebtedness shall not include guarantees or carve-outs with respect

to claims of the types referenced in (i)-(iv) of the definition of Non-Recourse

Exclusions until a claim is made with respect thereto, and then shall be

included only to the extent of the amount of such claim.




 




“Indemnified

Person”:  as defined in Section

11.12.




 




“Intellectual

Property”:  all copyrights,

trademarks, patents, trade names and service names.




 




“Interest

Payment Date”:  as to any Loan, the

first day of each month, commencing with the first day of the first month

following the date hereof.




 




“Interest

Period”:  with respect to any LIBOR

Loans requested by the Borrower, the period commencing on, as the case may be,

the Effective Date or Conversion Date with respect to such LIBOR Loans and

ending one, two, three or six months thereafter, as selected by the Borrower in

its irrevocable request to Administrative Agent with respect to the Loans to be

made on the Effective Date or its irrevocable notice of conversion as provided

in Section 2.8; provided, however, that all of the foregoing provisions

relating to Interest Periods are subject to the following:




 




(a)           if any Interest Period pertaining to

a LIBOR Loan would otherwise end on a day which is not a Business Day, such

Interest Period shall be extended to the next succeeding Business Day unless

the result of such extension would be to carry such Interest Period into

another calendar month, in which event such Interest Period shall end on the

immediately preceding Business Day;




 




(b)           if, with respect to the borrowing of

any Loan as a LIBOR Loan or the conversion of one Advance to another pursuant

to Section 2.8, the Borrower shall fail to give due notice with respect to the

Loans to be made on the Effective Date or with respect to a conversion as

provided in Section 2.8, as the case may be, the Borrower shall be deemed to

have elected that such Loan or Advance shall be made as a Prime Rate Loan;




 




(c)           any Interest Period pertaining to a

LIBOR Loan that begins on the last Business Day of a calendar month (or on a

day for which there is no numerically corresponding day in the calendar month

at the end of such Interest Period) shall end on the last Business Day of a

calendar month;




 




(d)           with respect to any Interest Period

applicable to a LIBOR Loan, no such Interest Period shall end after the

Maturity Date; and




 




12





























 




(e)           the Borrower shall select Interest

Periods so as not to have more than five (5) different Interest Periods

outstanding at any one time with respect to LIBOR Loans.




 




“Investments”:  as defined in Section 8.3.




 




“Joint

Venture”:  an Investment by Borrower

or any of its Subsidiaries with third persons in joint ventures, general

partnerships, limited partnerships, limited liability companies or any other

business association.  Joint Ventures

include non-wholly owned Subsidiaries of Borrower.




 




“Land

Assets”:  any land of the Borrower

or its Subsidiaries, or in which the Borrower or any of its Subsidiaries has an

interest (either directly or indirectly, through a Joint Venture or otherwise)

with respect to which the commencement of grading, construction of improvements

or infrastructure has not yet commenced, and all unimproved land according to

GAAP.




 




“Lead

Arranger”:  Fleet Securities, Inc.




 




“LIBOR”:  as applicable to any Interest Period for any

LIBOR Loan, the rate per annum (rounded upwards, if necessary, to the nearest

1/32nd of one percent) as determined on the basis of the offered rates for

deposits in Dollars, for the period of time comparable to such Interest Period

which appears on the Telerate page 3750 as of 11:00 a.m. London time on the day

that is two (2) LIBOR Business Days preceding the first day of such Interest

Period; provided, however, if the rate described above does not appear on the

Telerate system on any applicable interest determination date, LIBOR shall be

the rate (rounded upwards as described above, if necessary) for deposits in

Dollars for a period substantially equal to the Interest Period on the Reuters

Page “LIBO” (or such other page as may replace the LIBO Page on that service

for the purpose of displaying such rates), as of 11:00 a.m. (London Time), on

the day that is two (2) LIBOR Business Days prior to the beginning of such

Interest Period.  If both the Telerate

and Reuters systems are unavailable, then the rate for that date will be

determined on the basis of the offered rates for deposits in Dollars for a

period of time comparable to such Interest Period which are offered by four

major banks in the London interbank market at approximately 11:00 a.m. London

time, on the day that is two (2) LIBOR Business Days preceding the first day of

such Interest Period as selected by Administrative Agent.  The principal London office of each of the

four major London banks will be requested to provide a quotation of its U.S.

dollar deposit offered rate.  If at

least two such quotations are provided, the rate for that date will be the

arithmetic mean of the quotations.  If

fewer than two quotations are provided, the rate for that date will be

determined on the basis of the rates quoted for loans in Dollars to leading

European banks for a period of time comparable to such Interest Period offered

by major banks in New York City at approximately 11:00 a.m. (New York City

time), on the day that is two (2) LIBOR Business Days preceding the first day

of such Interest Period.  In the event

that Administrative Agent is unable to obtain any such quotation as provided

above, it will be deemed that LIBOR pursuant to a LIBOR Loan cannot be

determined and the provisions of Section 2.10 shall apply.  In the event that the Board of Governors of

the Federal Reserve System shall impose a Reserve Percentage with respect to

LIBOR deposits of Administrative Agent, then for any period during which such

Reserve Percentage shall apply, LIBOR shall be equal to the amount determined

above divided by an amount equal to 1 minus the Reserve Percentage.




 




13





























 




“LIBOR

Business Day”:  any day on which

commercial banks are open for international business (including dealings in

Dollar deposits) in London, England.




 




“LIBOR

Lending Office”:  initially, the

office of each Lender designated as such in Exhibit B hereto;

thereafter, such other office of such Lender, if any, that shall be making or

maintaining LIBOR Loans.




 




“LIBOR

Loans”:  loans bearing interest

calculated by reference to a LIBOR.




 




“Lien”:  any mortgage, pledge, hypothecation,

assignment, deposit or preferential arrangement, encumbrance, lien (statutory

or other), or other security agreement or security interest of any kind or

nature whatsoever, including, without limitation, any conditional sale or other

title retention agreement and any capital or financing lease having

substantially the same economic effect as any of the foregoing.




 




“Loan”

and “Loans”:  an individual term

loan or the aggregate term loans as the case may be, to be made by the Lenders

hereunder.  All Loans shall be made in

Dollars.




 




“Loan

Documents”:  collectively, this

Agreement, the Guaranty (and each Guaranty subsequently delivered pursuant to

Section 7.11) and the Notes.




 




“Margin

Stock”:  any “margin stock”, as said

term is defined in Regulation U of the Board of Governors of the Federal

Reserve System, as the same may be amended or supplemented from time to time.




 




“Material

Adverse Effect”:  a material adverse

effect on (i) the financial condition, operations, business, or Properties of

(A) the Borrower or (B) the Borrower and its Subsidiaries taken as a whole,

(ii) the ability of the Borrower to perform any of its material obligations

under the Loan Documents or (iii) the ability of the Administrative Agent and

the Lenders to enforce the Loan Documents.




 




“Maturity

Date”:  the earlier of

(i) December 31, 2003, or (ii) the date on which the Notes shall

become due and payable, whether by acceleration or otherwise.




 




“Moody’s”:  Moody’s Investors Services, Inc.




 




“Multiemployer

Plan”:  a plan defined as such

Section 3(37) of ERISA to which contributions have been made by the Borrower or

any ERISA Affiliate and which is covered by Title IV of ERISA.




 




“Net

Operating Income”:  for any period

and with respect to all assets which are Unencumbered Assets or Operating

Properties, as applicable, during such period, the sum of (a) net income

for such period, determined in accordance with GAAP, attributable to

Unencumbered Assets or Operating Properties, as applicable, plus (b)

depreciation and amortization, interest expense and any extraordinary or

non-recurring losses or charges for impairment of real estate deducted in

calculating such net income, minus (c) extraordinary or non-recurring

gains and payments (including rent insurance proceeds and condemnation awards)

included in such net income, minus (d) any portion of such net income

attributable to rents paid




 




14





























 




by any tenant which is an

Affiliate of the Borrower, minus (e) an amount (but not less than

zero) equal to the excess (if any) of (i) 3% of operating income for such

period, over (ii) management fees payable in respect of such Unencumbered

Assets or Operating Properties, as applicable, during such period.  For purposes of any calculation of Net

Operating Income, real estate taxes, ground rent and insurance shall be

included only at their stabilized, recurring levels.




 




“Net

Rentable Area”:  with respect to any

Real Property, the floor area of any buildings, structures or improvements

thereof (expressed in square feet) available for leasing to tenants, as

determined in accordance with the leases or site plans or leasing plans for

such Real Property, or if such leases or site plans or leasing plans do not set

forth the floor area demised thereunder (or if such Real Property is not

subject to a lease), then as determined by the Borrower in accordance with an

industry-accepted protocol approved by the Administrative Agent.




 




“New

Construction Asset”:  any Property

of the Borrower or its Subsidiaries, or in which the Borrower or any of its

Subsidiaries has an interest (either directly or indirectly, through a Joint

Venture or otherwise) (i) which is new ground-up construction (but not

including an expansion of an existing Property), and (ii) for which a

certificate of occupancy, whether temporary or permanent, or the functional

equivalent thereof, has not been issued with respect to such construction or

expansion (if required by law to occupy the same).  Notwithstanding the foregoing, any such new construction which

shall have been a New Construction Asset under the criteria of this definition

shall no longer be a New Construction Asset upon such time as (A) the same

is an income-producing Property in operating condition, and (B) at least 60% of

the Net Rentable Area (determined on an “as completed” basis) of such

construction is initially leased to tenants who have taken possession thereof.




 




“Non-Recourse

Exclusions”:  with respect to any

Non-Recourse Indebtedness of any Person, any usual and customary exclusions

from the non-recourse limitations governing such Indebtedness, including,

without limitation, exclusions for claims that (i) are based on fraud,

intentional misrepresentation, misapplication of funds, gross negligence or

willful misconduct, (ii) result from intentional mismanagement of or waste at

the Real Property securing such Non-Recourse Indebtedness, (iii) arise from the

presence of Hazardous Substances on the Real Property securing such

Non-Recourse Indebtedness; or (iv) are the result of any unpaid real estate

taxes and assessments.




 




“Non-Recourse

Indebtedness”:  at any time,

Indebtedness of the Borrower, its Subsidiaries or a Joint Venture at such time

which is secured by one or more parcels of Real Property or interests therein

and which is not a general obligation of the Borrower or such Subsidiary, the

holder of such Indebtedness having recourse solely to the parcels of Real

Property, or interests therein, securing such Indebtedness, the leases thereon

and the rents, profits and equity thereof (except for recourse against the

general credit of the Borrower or its Subsidiaries for any Non-Recourse

Exclusions), provided that in calculating the amount of Non-Recourse

Indebtedness at any time, the amount of any Non-Recourse Exclusions which are

the subject of a final judgment shall not be included in Non-Recourse

Indebtedness.




 




“Note”

and “Notes”:  as defined in

Section 2.2.




 




15





























 




“Notes

Receivable”:  mortgage and notes

receivable and reimbursement agreements (to the extent obligations are payable

under such reimbursement agreements), including interest payments thereunder,

of Borrower or any Subsidiary in a Person (other than Borrower or its

Subsidiaries).




 




“Operating

Property”:  any Real Property which

at any time (i) is an income-producing property in operating condition and in

respect of which no material part thereof has been damaged by fire or other

casualty (unless such damage has been repaired) or condemned (unless such condemnation

has been restored), (ii)(a) is a retail shopping center (including single

tenant retail properties) or (b) is one of the properties included in the

garden apartment community  portfolio

sold by the Borrower to a private investor group comprised of Houlihan-Parnes

Realtors, LLC and C.L.K. Management Corp., which transaction was completed on

September 21, 2001, and which property is subsequently reacquired by

Borrower or one of its Subsidiaries, and (iii) for which a certificate of

occupancy, whether temporary or permanent, or the functional equivalent

thereof, has been issued for the operating portions of the improvements

comprising the same (if required by law to occupy the same) and are in full

force and effect, and “Operating Properties” means all such Operating

Properties, collectively.  An Operating

Property shall not include any Redevelopment Asset or any New Construction

Asset.




 




“Operating

Property Value”:  as of any date the

quotient of (i) an amount equal to the Adjusted Net Operating Income for all

Operating Properties in the aggregate for the four fiscal quarters of the

Borrower most recently ending as of such date, divided by (ii) 9.5%. For

purposes of any determination of Operating Property Value, the following

limitations and methodology shall apply: 

(A) the Adjusted Net Operating Income of any Operating Property owned by

a DownREIT Partnership shall be based on the Borrower’s Interest in the

Adjusted Net Operating Income for each such Operating Property for the four

fiscal quarters having most recently ended as of such date; (B) in the event

more than 15% of the gross base rents payable under all leases for Properties

of the Borrower, its Subsidiaries or a DownREIT Partnership (including the

Borrower’s Interest in any Properties) shall be payable by one tenant and its

Subsidiaries, then Operating Property Value shall be reduced by the percentage

amount of such excess multiplied by the Operating Property Value attributable

to the Properties leased or controlled by such tenant and its Subsidiaries; and

(C) in the event that the Borrower or a Subsidiary of the Borrower shall not

have owned an Operating Property for the entire previous four fiscal quarters,

then for the purposes of determining the Operating Property Value with respect

to such Operating Property, the Adjusted Net Operating Income for such

Operating Property shall be annualized in a manner reasonably satisfactory to

the Administrative Agent, provided, however, that to the extent that a New

Construction Asset or Redevelopment Asset becomes an Operating Property during

the relevant period, the Adjusted Net Operating Income of such Operating

Property during such period and the following periods shall be annualized until

such time as such Operating Property has performed as an Operating Property for

four (4) full fiscal quarters.




 




“PBGC”:  the Pension Benefit Guaranty Corporation

established pursuant to Subtitle A of Title IV of ERISA, or any Governmental

Authority succeeding to the functions thereof.




 




“Permitted

Liens”:  Liens permitted to exist

under Section 8.1.




 




16





























 




“Person”:  an individual, a partnership, a corporation,

a business trust, a limited liability company, a joint stock company, a trust,

an unincorporated association, a joint venture, a Governmental Authority or any

other entity of whatever nature.




 




“Plan”:  any employee benefit or other plan

established or maintained by the Borrower or any ERISA Affiliate and which is

covered by or subject to the minimum funding standards of Title IV of ERISA,

other than a Multiemployer Plan.




 




“Pricing

Level”:  one of the following five

pricing levels, as applicable, provided that if the ratings by S&P and

Moody’s in any such Pricing Level are split by one equivalent rating level, the

operative rating would be deemed to be the higher of the two ratings, and if

the ratings by S&P and Moody’s in any such Pricing Level are split by more

than one equivalent rating level, the operative rating would be deemed to be

one rating level higher than the lower of the two ratings, and provided,

further, that during any period that the Borrower has no Senior Debt Rating,

Pricing Level V would be the applicable Pricing Level:




 




“Pricing

Level I”:  the Pricing Level which

would be applicable for so long as the Senior Debt Rating is greater than or

equal to A- by S&P or A3 by Moody’s;




 




“Pricing

Level II”:  the Pricing Level which

would be applicable for so long as the Senior Debt Rating is equal to BBB+ by

S&P or Baa1 by Moody’s and Pricing Level I is not applicable;




 




“Pricing

Level III”:  the Pricing Level which

would be applicable for so long as the Senior Debt Rating is equal to BBB by

S&P or Baa2 by Moody’s and Pricing Levels I and II are not applicable;




 




“Pricing

Level IV”:  the Pricing Level which

would be applicable for so long as the Senior Debt Rating is equal to BBB- by

S&P or Baa3 by Moody’s and Pricing Levels I, II and III are not applicable;

and




 




“Pricing

Level V”:  the Pricing Level which

would be applicable for so long as the Senior Debt Rating is less than BBB- by

S&P or Baa3 by Moody’s and Pricing Levels I, II, III and IV are not

applicable.




 




“Prime Rate”:  the greater of (a) the variable annual rate

of interest announced from time to time by Administrative Agent at

Administrative Agent’s Domestic Lending Office as its “Prime Rate” or (b)

one-half of one percent (0.5%) above the Federal Funds Rate (rounded upwards,

if necessary, to the next one-eighth of one percent).  The Prime Rate is a reference rate and does not necessarily

represent the lowest or best rate being charged to any customer.  Any change in the rate of interest payable

hereunder resulting from a change in the Prime Rate shall become effective as

of the opening of business on the day on which such change in the Prime Rate

becomes effective, without notice or demand of any kind.




 




“Prime Rate

Loans”:  those Loans bearing

interest calculated by reference to the Prime Rate.




 




“Property”:  all types of real, personal, tangible,

intangible or mixed property.




 




17





























 




“Real

Property”:  all real Property, and

all interests in real Property, now or hereafter owned, leased or held by the

Borrower or any Subsidiary of the Borrower.




 




“Redevelopment

Asset”:  any Property of the

Borrower or its Subsidiaries, or in which the Borrower or any of its

Subsidiaries has an interest (either directly or indirectly, through a Joint

Venture or otherwise) (i) which is not a New Construction Asset,

(ii) which is undergoing an expansion which will increase the Net Rentable

Area of such Property by 20,000 square feet or more (provided that with respect

to any Property which is under expansion, if the balance thereof is a fully

integrated, rentable property, then only the portion of such Property that is

under expansion shall be a Redevelopment Asset), and (iii) for which a

certificate of occupancy, whether temporary or permanent, or the functional

equivalent thereof, has not been issued with respect to such construction or

expansion (if required by law to occupy the same).  Notwithstanding the foregoing, any such expansion which shall

have been a Redevelopment Asset under the criteria of this definition shall no

longer be a Redevelopment Asset upon such time as (A) the same is an

income-producing Property in operating condition, and (B) at least 60% of

the Net Rentable Area (determined on an “as completed” basis) of such expansion

is initially leased to tenants who have taken possession thereof.  A Property shall not be considered a Redevelopment

Asset solely because such Property is being restored to its prior condition

following a casualty or condemnation.




 




“REIT”:  a Person qualifying as a real estate

investment trust under sections 856-859 of the Code and the regulations and

rulings of the Internal Revenue Service issued thereunder.




 




“Remaining

Interest Period”:  (i) in the event

that the Borrower shall fail for any reason to borrow a Loan in respect of

which it shall have requested a LIBOR Loan or to convert an Advance to a LIBOR

Loan after it shall have notified the Administrative Agent of its intent to do

so with respect to the Loans to be made on the Effective Date or with respect

to a conversion pursuant to Section 2.8, a period equal to the Interest Period

that the Borrower elected in respect of such LIBOR Loan; or (ii) in the event

that a LIBOR Loan shall terminate for any reason prior to the last day of the

Interest Period applicable thereto, a period equal to the remaining portion of

such Interest Period if such Interest Period had not been so terminated; or

(iii) in the event that the Borrower shall prepay or repay all or any part of

the principal amount of a LIBOR Loan, (including, without limitation, any

mandatory prepayment or a prepayment resulting from acceleration or illegality)

prior to the last day of the Interest Period applicable thereto, a period equal

to the period from and including the date of such prepayment or repayment to

but excluding the last day of such Interest Period.




 




“Rent Roll”:  a schedule prepared by the Borrower from

time to time identifying (i) the Real Property owned by the Borrower or its

Subsidiaries and stating whether such items of Real Property are Unencumbered

Assets at such time, (ii) the annual base rent payable under each lease of Real

Property owned by the Borrower or any of its Subsidiaries, (iii) the

commencement and termination dates of the term of each such lease, (iv) any

renewal options with respect to such lease, (v) the Net Rentable Area of the

space demised under each such lease and (vi) such other information as the

Administrative Agent may reasonably require.




 




“Required

Additional Guarantors”:  any

Subsidiary required to execute and deliver a Guaranty pursuant to Section

7.11(a).




 




18





























 




“Required

Lenders”:  (a) as of any date

on which there are five (5) or more Lenders, not less than three

(3) Lenders whose aggregate Commitment Percentage exceeds fifty percent

(50%), and (b) as of any date on which there are fewer than five (5)

Lenders, the Lender or Lenders whose aggregate Commitment Percentage exceeds

fifty percent (50%).




 




“Reserve

Percentage”:  for any day with

respect to a LIBOR Loan, the maximum rate (expressed as a decimal) at which any

lender subject thereto would be required to maintain reserves (including,

without limitation, all base, supplemental, marginal and other reserves) under

Regulation D of the Board of Governors of the Federal Reserve System (or any

successor or similar regulations relating to such reserve requirements) against

“Eurocurrency Liabilities” (as that term is used in Regulation D or any

successor or similar regulation), if such liabilities were outstanding.  The Reserve Percentage shall be adjusted

automatically on and as of the effective date of any change in the Reserve

Percentage.




 




“Responsible

Official”: (a) when used with reference to a Person other than an

individual, any corporate officer of such Person, general partner or managing

member of such Person, corporate officer of a corporate general partner or

managing member of such Person, or corporate officer of a corporate general

partner of a partnership that is a general partner of such Person or corporate

managing member of a limited liability company that is a managing member of

such Person, or any other responsible official thereof duly acting on behalf

thereof, and (b) when used with reference to a Person who is an

individual, such Person.




 




“Restricted

Payment”:  as to any Person, any

dividend or other distribution by such Person (whether in cash, securities or

other property) with respect to any shares of any class of equity securities or

beneficial interests of such Person, or any payment (whether in cash,

securities or other property), including any sinking fund or similar deposit,

on account of the purchase, redemption, retirement, acquisition, cancellation

or termination of any such shares or beneficial interests or any option,

warrant or other right to acquire any such shares or beneficial interests.




 




“Senior

Debt Rating”:  the senior unsecured

non-credit-enhanced debt rating of the Borrower as determined by S&P and/or

Moody’s from time to time.




 




“Special

Counsel”:  McKenna Long &

Aldridge LLP, special counsel to FNB.




 




“S&P”:  Standard & Poor’s Ratings Group.




 




“Stock”:  any and all shares, rights, interests,

participations, warrants, depositary receipts or other equivalents (however

designated) of corporate stock, including, without limitation, so-called

“phantom stock,” preferred stock and common stock.




 




“Subsidiary”:  as to any Person, any corporation,

association, partnership, limited liability company, joint venture or other

business entity (A) which is required pursuant to GAAP to be consolidated

with such Person for financial reporting purposes, and (B) of which such

Person, directly or indirectly, either (i) in respect of a corporation, owns or

controls more than 50% of the outstanding Stock having ordinary voting power to

elect a majority of the board of directors or similar managing body,

irrespective of whether a class or classes shall or might have voting power by

reason of the happening of any contingency, or (ii) in respect of an

association,




 




19





























 




partnership, limited liability

company, joint venture or other business entity (other than a corporation which

is provided for in (i) above), is entitled to share, either directly or

indirectly through an entity described in clause (i) above, in more than 50% of

the profits and losses, however determined (without taking into account returns

of capital to such Person as an equity investor or payment of fees to such

Person for services rendered to such entity).




 




“Subsidiary

Guarantor”: the Subsidiaries of the Borrower listed on Schedule 4.4

and designated thereon as a Subsidiary Guarantor, each Required Additional

Guarantor, and their successors and assigns; and “Subsidiary Guarantors” shall

mean all such guarantors, collectively.




 




“Supermajority

Lenders”: the Lender or Lenders whose aggregate Commitment Percentage

exceeds sixty-six and two-thirds percent (66.67%).




 




“Tangible

Net Worth”:  as of any date of

determination thereof with respect to the Borrower and its Subsidiaries,

determined on a Consolidated basis in accordance with GAAP, the remainder of

(i) the amounts which would, in conformity with GAAP, be included under

“shareholder’s equity” (or any like caption) on a Consolidated balance sheet of

the Borrower and its Subsidiaries as at such date, minus (ii) the net book

value of all assets of the Borrower and its Subsidiaries on a Consolidated

basis (to the extent reflected in the Consolidated balance sheet of the

Borrower at such date) which would be treated as intangibles under GAAP,

including, without limitation, goodwill (whether representing the excess cost

over book value of assets acquired or otherwise), patents, trademarks, trade

names, franchises, copyrights, licenses, service marks, rights with respect to

the foregoing and deferred charges (including, without limitation, unamortized

debt discount and expense, organization costs and research and development

costs).




 




“Taxes”:  any present or future income, stamp or other

taxes, levies, imposts, duties, fees, assessments, deductions, withholdings, or

other charges of whatever nature, now or hereafter imposed, levied, collected,

withheld, or assessed by any Governmental Authority.




 




“Total Commitment

Amount”:  on any day, the sum of the

Commitment Amounts of all Lenders on such day.




 




“Unencumbered

Asset”:  any Operating Property

which Borrower desires to have treated as an Unencumbered Asset and which at

any time (i) is wholly owned in fee simple by the Borrower, a direct or

indirect wholly owned Subsidiary of the Borrower or a DownREIT Partnership (or

is the subject of a Ground Lease), (ii) is free and clear of all Liens,

including any Liens on any direct or indirect interest of Borrower or any

Subsidiary therein (other than Liens permitted under clauses (i), (ii), (iii),

(iv), (v) (vi), (viii) and (ix) of Section 8.1), (iii) does not have applicable

to it (or to any such Ground Lease) any restriction on the pledge, transfer,

mortgage or assignment of such Operating Property or Ground Lease (including

any restriction imposed by the organizational documents of any such Subsidiary

or DownREIT Partnership, but excluding any requirement in a Ground Lease that

such Ground Lease be assumed upon the assignment thereof), (iv) if owned by any

such Subsidiary or DownREIT Partnership, the Stock, partnership interests or

membership interests, as the case may be, of such Subsidiary or DownREIT

Partnership that are owned by the Borrower or any Subsidiary are not subject to

any pledge or security interest in favor of any Person other than the Borrower

or a Subsidiary Guarantor, (v) is not an Environmental Risk Property; (vi) does

not have, to the best of the




 




20





























 




Borrower’s knowledge, any

title, survey, or other defect which could reasonably be expected to materially

and adversely affect the value, use, financeability or marketability thereof,

and (vii) is located within the contiguous 48 states of the continental United

States; and “Unencumbered Assets” means all such Unencumbered Assets,

collectively.  The Unencumbered Assets

(X) which are retail shopping centers shall on an aggregate basis have an

occupancy level of tenants in possession and operating and which are paying

base, minimum or similar regularly scheduled fixed payments of rent (but not

pass-throughs of common area maintenance charges, operating expenses, taxes,

insurance and similar charges) in accordance with the terms of their leases of

at least eighty percent (80%) of the Net Rentable Area within such Unencumbered

Assets based on bona fide arms-length tenant leases requiring current rental

payments, and (Y) which are residential apartments shall on an aggregate

basis have an occupancy level of tenants in possession and which are paying

rent in accordance with the terms of their leases of at least eighty percent

(80%) of the number of apartment units in such residential apartments within

such Unencumbered Assets based on bona fide arm’s-length tenant leases

requiring current rental payments. 

Notwithstanding the foregoing, for the purposes of this Agreement, from

and after the EIG Acquisition Date a portion of the Operating Properties to be

acquired by Borrower pursuant to the EIG Acquisition which are held on an

interim basis by an Exchange Accommodation Titleholder may be included as

Unencumbered Assets for the purposes of this Agreement and shall be deemed to

be owned by Borrower in fee simple for the purposes of this Agreement, provided

that (A) all other conditions to such Operating Properties being Unencumbered

Assets shall be satisfied (including, without limitation, the provisions of

clause (iv) above as the same would apply to such Exchange Accommodation

Titleholder), (B) such Exchange Accommodation Titleholder acquires fee simple

title to the assets for the purposes of facilitating an exchange pursuant to

Section 1031 of the Code on behalf of Borrower or any of its wholly owned

Subsidiaries, (C) the Unencumbered Asset Value attributable to such assets

shall not exceed $200,000,000 at the time of such acquisition (provided that

such Exchange Accommodation Titleholder may acquire assets in excess of such

$200,000,000 limit, but such assets over such limit shall not be included as

Unencumbered Assets), (D) Administrative Agent approves the Exchange

Accommodation Titleholder, (E) Administrative Agent approves the structure and

documentation for such transaction (which documentation shall not be modified,

amended or terminated without Administrative Agent’s consent), and (F) such

Operating Properties shall not be included as Unencumbered Assets for more than

ninety (90) days following the acquisition thereof by such Exchange

Accommodation Titleholder (provided, however, that Administrative Agent may in its

discretion extend such period (such consent not to be unreasonably withheld)

for an additional ninety (90) days if Borrower has not been able to complete

its like-kind exchange pursuant to Section 1031 of the Code).




 




“Unencumbered

Assets Coverage Ratio”:  on any date

of determination the ratio of (i) the sum of all Adjusted Net Operating Income

for all Unencumbered Assets of the Borrower and its Subsidiaries on a

Consolidated basis, plus (without duplication) the Borrower’s Interest in all

Adjusted Net Operating Income for all Unencumbered Assets owned by a DownREIT

Partnership, in each case, for the period of four (4) fiscal quarters just

ended prior to the date of determination, to (ii) the portion of the

Consolidated Interest Expense (which excludes interest on unsecured

Indebtedness of Joint Ventures that are not Subsidiaries) consisting of

interest on all unsecured Indebtedness of the Borrower and its Subsidiaries for

such period.




 




21





























 




“Unencumbered

Asset Value”:  as of any date the

quotient of (i) an amount equal to the Adjusted Net Operating Income for all

Unencumbered Assets in the aggregate for the four fiscal quarters of the

Borrower most recently ending as of such date, divided by (ii) 9.5%. For purposes

of any determination of Unencumbered Asset Value, the following limitations and

methodology shall apply:  (A) the

Adjusted Net Operating Income of any Unencumbered Asset owned by a DownREIT

Partnership shall be based on the Borrower’s Interest in the Adjusted Net

Operating Income for each such Unencumbered Asset for the four fiscal quarters

having most recently ended as of such date; (B) in the event more than 15% of

the gross base rents payable under all leases for Properties of the Borrower,

its Subsidiaries or a DownREIT Partnership (including the Borrower’s Interest

in any Properties) shall be payable by one tenant and its Subsidiaries, then

Unencumbered Asset Value shall be reduced by the percentage amount of such

excess multiplied by the Unencumbered Asset Value attributable to the

Properties leased or controlled by such tenant and its Subsidiaries; and (C) in

the event that the Borrower or a Subsidiary of the Borrower shall not have

owned an Unencumbered Asset for the entire previous four fiscal quarters, then

for the purposes of determining the Unencumbered Asset Value with respect to

such Unencumbered Asset, the Adjusted Net Operating Income for such

Unencumbered Asset shall be annualized in a manner reasonably satisfactory to

the Administrative Agent, provided, however, that to the extent that a New

Construction Asset or Redevelopment Asset becomes an Operating Property during

the relevant period, the Adjusted Net Operating Income of such Operating

Property during such period and the following periods shall be annualized until

such time as such Operating Property has performed as an Operating Property for

four (4) full fiscal quarters.




 




1.2           Other Definitional Provisions.




 




(a)           All terms defined in this Agreement

shall have the meanings given such terms herein when used in the Loan Documents

or any certificate, opinion  or other

document made or delivered pursuant hereto or thereto, unless otherwise defined

therein.




 




(b)           As used in the Loan Documents and in

any certificate, opinion or other document made or delivered pursuant hereto or

thereto, accounting terms not defined in Section 1.1, and accounting terms

partly defined in Section 1.1, to the extent not defined, shall have the

respective meanings given to them under GAAP.




 




(c)           The words “hereof”, “herein”,

“hereto” and “hereunder” and similar words when used in this Agreement shall

refer to this Agreement as a whole and not to any particular provision of this

Agreement, and Section, schedule and exhibit references contained herein shall

refer to Sections hereof or schedules or exhibits hereto unless otherwise

expressly provided herein.




 




(d)           The word “or” shall not be exclusive;

“may not” is prohibitive and not permissive.




 




(e)           Unless the context otherwise

requires, words in the singular number include the plural, and words in the

plural include the singular.




 




22





























 




(f)            Unless specifically provided in a

Loan Document to the contrary, references to time shall refer to Boston,

Massachusetts time.




 




2.             AMOUNT AND TERMS OF LOANS.




 




2.1           Loans.  Subject to the terms and conditions set

forth in this Agreement, each of the Lenders severally agrees to lend to the

Borrower on the Effective Date the aggregate principal amount of such Lender’s

Commitment Amount, for the purposes set forth in Section 2.15.  On the Effective Date, the Total Commitment

Amount as of the Effective Date shall be disbursed to Borrower in a single

advance.  The Loan shall be made pro

rata in accordance with each Lender’s Commitment Percentage.  The acceptance by Borrower of the Loans

hereunder shall constitute a representation and warranty by the Borrower that

all of the conditions set forth in Section 5 have been satisfied.  No Lender shall have any obligation to make

a Loan to the Borrower of more than the principal face amount of its Note.




 




2.2           Notes.




 




(a)           Notes as Evidence of Indebtedness.  The Loan of each Lender shall be evidenced

by a promissory note of the Borrower, substantially in the form of Exhibit H,

with appropriate insertions therein as to date and principal amount (each, as

endorsed or modified from time to time, a “Note” and, collectively with

the Notes of all other Lenders, the “Notes”), payable to the order of

such Lender for the account of its Applicable Lending Office in the initial

principal face amount equal to the original amount of the Commitment of such

Lender and representing the obligation of the Borrower to pay the lesser of (a)

the original amount of the Commitment of such Lender and (b) the aggregate

unpaid principal balance of all Loans of such Lender, plus interest and other

amounts due and owing to the Lenders under the Loan Documents.




 




(b)           The Notes Generally.  Each Note shall bear interest from the date

thereof on the unpaid principal balance thereof at the applicable interest rate

or rates per annum determined as provided in Section 2.9 and shall be stated to

mature on the Maturity Date.  The

following information shall be recorded by each Lender on its books:  (i) the date and amount of the Loan of such

Lender; (ii) its character as a Prime Rate Loan, a LIBOR Loan or a combination

thereof; (iii) the interest rate and Interest Period applicable to LIBOR Loans;

and (iv) each payment and prepayment of the principal thereof; provided, that

the failure of such Lender to make any such recordation or endorsement shall

not affect the obligations of the Borrower to make payment when due of any

amount owing under the Loan Documents.




 




(c)           By delivery of the Notes, there shall

not be deemed to have occurred, and there has not otherwise occurred, any

payment, satisfaction or novation of the indebtedness evidenced by the “Notes”

as defined in the Original Loan Agreement, which indebtedness is instead

allocated among the Banks as of the date hereof and evidenced by the Notes in accordance

with their respective Commitment Percentages.




 




2.3           Procedure for Loan Borrowings.




 




(a)           Intentionally Omitted.




 




23





























 




(b)           Intentionally Omitted.




 




(c)           Intentionally Omitted.




 




(d)           Funding of Loans.  Each Lender will make its Loan, in an amount

equal to its Commitment Amount, available to the Administrative Agent for the

account of the Borrower at the office of the Administrative Agent set forth in

Section 11.2 not later than 12:00 noon, Massachusetts time, on the Borrowing

Date in funds immediately available to the Administrative Agent at such

office.  The amounts so made available

to the Administrative Agent on the Borrowing Date will then, subject to the

satisfaction of the terms and conditions of this Agreement, as determined by

the Administrative Agent, be made available on such date to the Borrower by the

Administrative Agent at the office of the Administrative Agent specified in

Section 11.2 by crediting the account of the Borrower on the books of such

office with the aggregate of said amounts received by the Administrative Agent.




 




(e)           Intentionally Omitted.




 




(f)            Administrative Agent’s Assumption.  Unless the Administrative Agent shall have

received prior notice from a Lender (by telephone or otherwise, such notice to

be promptly confirmed by telecopy or other writing) that such Lender will not

make available to the Administrative Agent such Lender’s pro rata share of the

Loans, the Administrative Agent may assume that such Lender has made such share

available to the Administrative Agent on the Borrowing Date in accordance with

this Section, provided that such Lender received notice of the proposed

borrowing from the Administrative Agent, and the Administrative Agent may, in

reliance upon such assumption, make available to the Borrower on the Borrowing

Date a corresponding amount.  If and to

the extent such Lender shall not have so made such pro rata share available to

the Administrative Agent, such Lender and the Borrower severally agree to pay

to the Administrative Agent forthwith on demand such corresponding amount (to

the extent not previously paid by the other), together with interest thereon

for each day from the date such amount is made available to the Borrower until

the date such amount is paid to the Administrative Agent, at a rate per annum

equal to, in the case of the Borrower, the applicable interest rate set forth

in Section 2.9 for Prime Rate Loans or LIBOR Loans, as initially requested by

Borrower, and, in the case of such Lender, the Federal Funds Rate in effect on

each such day (as determined by the Administrative Agent).  Such payment by the Borrower, however, shall

be without prejudice to its rights against such Lender.  If such Lender shall pay to the

Administrative Agent such corresponding amount, such amount so paid shall

constitute such Lender’s Loan as part of the Loans for purposes of this

Agreement, which Loan shall be deemed to have been made by such Lender on the

Borrowing Date applicable to such Loans, but without prejudice to the

Borrower’s rights against such Lender.




 




2.4           [Intentionally Omitted].




 




2.5           [Intentionally Omitted].




 




2.6           Repayment of Loans; Evidence of Debt.




 




24





























 




(a)           Promise to Pay.  The Borrower hereby unconditionally promises

to pay to the Administrative Agent for the account of each Lender the then

unpaid principal amount of each Loan on the Maturity Date.




 




(b)           Lenders’ Accounts.  Each Lender shall maintain in accordance

with its usual practice an account or accounts evidencing the debt of the

Borrower to such Lender resulting from each Loan made by such Lender, including

the amounts of principal and interest payable and paid to such Lender from time

to time hereunder.




 




(c)           Administrative Agent’s Accounts.  The Administrative Agent shall maintain

accounts in which it shall record (i) the amount of each Loan made hereunder,

the type of Advance thereof and the Interest Period applicable thereto, (ii)

the amount of any principal or interest due and payable or to become due and

payable from the Borrower to each Lender hereunder and (iii) the amount of any

other sum received by the Administrative Agent hereunder for the account of the

Lenders and each Lender’s share thereof.




 




(d)           Entries Made in Accounts.  The entries made in the accounts maintained

pursuant to paragraphs (b) and (c) of this Section shall, to the extent not

inconsistent with any entries made in any Note and absent manifest error, be

prima facie evidence of the existence and amounts of the obligations recorded

therein, provided that the failure of any Lender, or the Administrative Agent

to maintain such accounts or any error therein shall not in any manner affect

the obligation of the Borrower to repay the Loans in accordance with the terms

of this Agreement.




 




(e)           Loans Evidenced by Notes.  The Loans and interest thereon shall at all

times (including after assignment pursuant to Section 11.7) be represented by

one or more Notes in like form payable to the order of the payee named therein

and its registered assigns.




 




2.7           Prepayments of the Loans.




 




(a)           Voluntary Prepayments. The

Borrower may, at its option, prepay the Prime Rate Loans and LIBOR Loans, in

whole or in part, without premium or penalty (other than any indemnification

amounts, as provided for in Section 2.14) at any time and from time to time by

notifying the Administrative Agent in writing at least one Business Day prior

to the proposed prepayment date in the case of Loans consisting of Prime Rate

Loans and at least three Business Days prior to the proposed prepayment date in

the case of Loans consisting of LIBOR Loans, specifying the Loans to be prepaid

consisting of Prime Rate Loans, LIBOR Loans or a combination thereof, the

amount to be prepaid and the date of prepayment.  Such notice shall be irrevocable and the amount specified in such

notice shall be due and payable on the date specified, together with accrued

interest to the date of such payment on the amount prepaid.  Upon receipt of such notice, the Administrative

Agent shall promptly notify each Lender in respect thereof.  Partial prepayments of Prime Rate Loans

and/or LIBOR Loans shall be in an aggregate minimum principal amount of

$500,000 or such amount plus a whole multiple of $500,000 in excess thereof,

or, if less, the outstanding principal balance thereof.  After giving effect to any partial

prepayment with respect to LIBOR Loans which were converted on the same date

and which had the same Interest Period, the outstanding principal amount of

such LIBOR




 




25





























 




Loans shall be at least

(subject to Section 2.8(a)) $1,000,000 or such amount plus a whole multiple of

$100,000 in excess thereof.  Any Loans

prepaid shall not be readvanced.




 




(b)           In General. If any prepayment

is made in respect of any Advance, in whole or in part, prior to the last day

of the applicable Interest Period, the Borrower agrees to indemnify the Lenders

in accordance with Section 2.14.




 




(c)           Partial Prepayments.  Each partial prepayment of the Loans (other

than Prime Rate Loans) under Section 2.7(a) shall be accompanied by the payment

of accrued interest on the principal prepaid to the date of payment and, after

payment of such interest, shall be applied, in the absence of instruction by

the Borrower, to the Lenders in accordance with the provisions of Section 3.2.




 




2.8           Conversions.




 




(a)           Conversion Elections.  The Borrower may elect from time to time to

convert LIBOR Loans to Prime Rate Loans by giving the Administrative Agent at

least one Business Day’s prior irrevocable notice of such election, specifying

the amount to be so converted, provided, that any such conversion of LIBOR

Loans shall only be made on the last day of the Interest Period applicable

thereto.  In addition, the Borrower may

elect from time to time to convert Prime Rate Loans to LIBOR Loans or to

convert LIBOR Loans to new LIBOR Loans by giving the Administrative Agent at

least two Business Days’ prior irrevocable notice of such election, specifying

the amount to be so converted and the initial Interest Period relating thereto,

provided that any such conversion of Prime Rate Loans to LIBOR Loans shall only

be made on a Business Day and any such conversion of LIBOR Loans to new LIBOR

Loans shall only be made on the last day of the Interest Period applicable to

the LIBOR Loans which are to be converted to such new LIBOR Loans.  Each such notice shall be in the form of Exhibit

M and must be delivered to the Administrative Agent prior to 12:00 noon on

the Business Day required by this Section for the delivery of such notices to

the Administrative Agent.  The

Administrative Agent shall promptly provide the Lenders with notice of any such

election.  Prime Rate Loans and LIBOR

Loans may be converted pursuant to this Section in whole or in part, provided

that conversions of Prime Rate Loans to LIBOR Loans, or LIBOR Loans to new

LIBOR Loans, shall be in an aggregate principal amount of $5,000,000 or such

amount plus a whole multiple of $100,000 in excess thereof.




 




(b)           Effect on Conversions if an Event

of Default.  Notwithstanding

anything in this Section to the contrary, no Prime Rate Loan may be converted

to a LIBOR Loan, and no LIBOR Loan may be converted to a new LIBOR Loan, if a

Default or Event of Default has occurred and is continuing either (i) at the

time the Borrower shall notify the Administrative Agent of its election to

convert or (ii) on the requested Conversion Date.  In such event, such Prime Rate Loan shall be automatically

continued as a Prime Rate Loan or such LIBOR Loan shall be automatically

converted to a Prime Rate Loan on the last day of the Interest Period

applicable to such LIBOR Loan.




 




(c)           Conversion not a Borrowing.  Each conversion shall be effected by each

Lender by applying the proceeds of its new Prime Rate Loan or LIBOR Loan, as

the case may




 




26





























 




be, to its Advances (or portion

thereof) being converted (it being understood that such conversion shall not

constitute a borrowing for purposes of Sections 4 or 5).




 




2.9           Interest Rate and Payment Dates.




 




(a)           Prior to Maturity.  Except as otherwise provided in Section

2.9(b), prior to the Maturity Date, the Loans shall bear interest on the

outstanding principal balance thereof at the applicable interest rate or rates

per annum set forth below:




 




	

  ADVANCES


  	

   


  	

  RATE


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

  Each Prime Rate Loan


  	

   


  	

  Prime Rate plus the Applicable Margin.


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

  Each LIBOR Loan


  	

   


  	

  LIBOR for the applicable Interest Period

  plus the Applicable Margin.


  	

   


  





 




 




(b)           Event of Default.  After the occurrence and during the

continuance of an Event of Default, the outstanding principal balance of (a)

the LIBOR Rate Loans and any overdue interest with respect thereto shall bear

interest, whether before or after the entry of any judgment thereon, at a rate

per annum equal to LIBOR for the applicable Interest Period plus the Applicable

Margin plus 2% (b) the Prime Rate Loans and any overdue interest with respect

thereto or other amount payable under the Loan Documents shall bear interest,

whether before or after the entry of any judgment thereon, at a rate per annum

equal to the Prime Rate plus 2%.




 




(c)           Interest Payment Dates.  Accrued interest on each Loan shall be

payable in arrears on each Interest Payment Date for such Loan, provided that

(i) interest accrued pursuant to paragraph (b) of this Section shall be payable

on demand, (ii) in the event of any repayment or prepayment of any Loan,

accrued interest on the principal amount repaid or prepaid shall be payable on

the date of such repayment or prepayment and (iii) in the event of any

conversion of any LIBOR Loans prior to the end of the current Interest Period

therefor, accrued interest on such Loan shall be payable on the effective date

of such conversion.




 




(d)           General.  Interest on (i) Prime Rate Loans shall be

calculated on the basis of a 365-day year and (ii) LIBOR Loans shall be

calculated on the basis of a 360-day year, in each case for the actual number

of days elapsed, including the first day but excluding the last.  Any change in the interest rate on the Loans

resulting from a change in the Prime Rate or a Pricing Level shall become

effective as of the opening of business on the day on which such change shall

become effective.  The Administrative

Agent shall, as soon as practicable, notify the Borrower and the Lenders of the

effective date and the amount of each such change in the Prime Rate or a

Pricing Level, but any failure to so notify shall not in any manner affect the

obligation of the Borrower to pay interest on the Loans in the amounts and on

the dates required.  Each determination

of the Prime Rate, a LIBOR or a Pricing Level by the Administrative Agent

pursuant to this Agreement shall be conclusive and binding on the Borrower and

the Lenders




 




27





























 




absent manifest error.  At no time shall the interest rate payable

on the Loans of any Lender, together with the Facility Fee and all other

amounts payable under the Loan Documents, to the extent the same are construed

to constitute interest, exceed the Highest Lawful Rate.  If interest payable to a Lender on any date

would exceed the maximum amount permitted by the Highest Lawful Rate, such

interest payment shall automatically be reduced to such maximum permitted

amount, and interest for any subsequent period, to the extent less than the

maximum amount permitted for such period by the Highest Lawful Rate, shall be

increased by the unpaid amount of such reduction.  Any interest actually received for any period in excess of such

maximum allowable amount for such period shall be deemed to have been applied as

a prepayment of the Loans.  The Borrower

acknowledges that the Prime Rate is only one of the bases for computing

interest on loans made by the Lenders, and by basing interest payable on Prime

Rate Loans on the Prime Rate, the Lenders have not committed to charge, and the

Borrower has not in any way bargained for, interest based on a lower or the

lowest rate at which the Lenders may now or in the future make loans to other

borrowers.




 




2.10         Substituted Interest Rate.




 




In the event

that (i) the Administrative Agent shall have reasonably determined (which

determination shall be conclusive and binding upon the Borrower) that by reason

of circumstances affecting the interbank eurodollar market adequate and

reasonable means do not exist for ascertaining the LIBOR applicable pursuant to

Section 2.9 or (ii) the Required Lenders shall have notified the Administrative

Agent that they have reasonably determined (which determination shall be

conclusive and binding on the Borrower) that the applicable LIBOR will not adequately

and fairly reflect the cost to such Lenders of maintaining or funding loans

bearing interest based on such LIBOR, with respect to any portion of the Loans

that the Borrower has requested be made as LIBOR Loans or LIBOR Loans that will

result from the requested conversion of any portion of the Advances into LIBOR

Loans (each, an “Affected Advance”), the Administrative Agent shall promptly

notify the Borrower and the Lenders (by telephone or otherwise, to be promptly

confirmed in writing) of such determination, on or, to the extent practicable,

prior to the requested Borrowing Date or Conversion Date for such Affected

Advances.  If the Administrative Agent

shall give such notice, (a) any Affected Advances shall be made as Prime Rate

Loans, (b) the Advances (or any portion thereof) that were to have been

converted to Affected Advances shall be converted to or continued as Prime Rate

Loans and (c) any outstanding Affected Advances shall be converted, on the last

day of the then current Interest Period with respect thereto, to Prime Rate

Loans.  Until any notice under clauses

(i) or (ii), as the case may be, of this Section has been withdrawn by the

Administrative Agent (by notice to the Borrower promptly upon either (x) the

Administrative Agent having determined that such circumstances affecting the

LIBOR market no longer exist and that adequate and reasonable means do exist

for determining the LIBOR pursuant to Section 2.9 or (y) the Administrative

Agent having been notified by such Required Lenders that circumstances no

longer render the Advances (or any portion thereof) Affected Advances), no

further LIBOR Loans shall be required to be made by the Lenders nor shall the

Borrower have the right to convert all or any portion of the Loans to LIBOR

Loans.




 




28





























 




2.11         Taxes; Net Payments.




 




(a)           All payments made by the Borrower or

any Subsidiary Guarantor under the Loan Documents shall be made free and clear

of, and without reduction for or on account of, any taxes, levies, imposts,

deductions, charges or withholdings required by law to be withheld from any

amounts payable under the Loan Documents. 

A statement setting forth the calculations of any amounts payable

pursuant to this paragraph submitted by a Lender to the Borrower shall be

conclusive absent manifest error.  The

obligations of the Borrower under this Section shall survive the termination of

this Agreement and the Commitments and the payment of the Notes and all other

amounts payable under the Loan Documents.




 




(b)           Each Lender which is a foreign

corporation within the meaning of Section 1442 of the Code shall deliver to the

Borrower such certificates, documents or other evidence as the Borrower may

reasonably require from time to time as are necessary to establish that such

Lender is not subject to withholding under Section 1441 or 1442 of the Code or

as may be necessary to establish, under any law hereafter imposing upon the

Borrower, an obligation to withhold any portion of the payments made by the

Borrower under the Loan Documents, that payments to the Administrative Agent on

behalf of such Lender are not subject to withholding.




 




2.12         Illegality.




 




Notwithstanding

any other provisions herein, if any law, regulation, treaty or directive

hereafter enacted, promulgated, approved or issued, or any change in any

presently existing law, regulation, treaty or directive, or in the

interpretation or application thereof, shall make it unlawful for any Credit

Party to make or maintain its LIBOR Loans as contemplated by this Agreement,

such Credit Party shall so notify the Administrative Agent and the

Administrative Agent shall forthwith give notice thereof to the other Credit

Parties and the Borrower, whereupon (i) the commitment of such Credit Party

hereunder to make LIBOR Loans or convert Prime Rate Loans to LIBOR Loans shall

forthwith be suspended and (ii) such Credit Party’s Loans then outstanding as

LIBOR Loans affected hereby, if any, shall be converted automatically to Prime

Rate Loans on the last day of the then current Interest Period applicable

thereto or within such earlier period as required by law.  If the commitment of any Credit Party with

respect to LIBOR Loans is suspended pursuant to this Section and thereafter it

is once again legal for such Credit Party to make or maintain LIBOR Loans, such

Credit Party’s commitment to make or maintain LIBOR Loans shall be reinstated

and such Credit Party shall notify the Administrative Agent and the Borrower of

such event.  Notwithstanding the

foregoing, to the extent that the conditions giving rise to the notice

requirement set forth in this Section can be eliminated by the transfer of such

Credit Party’s Loans or Commitment to another of its branches, and to the

extent that such transfer is not inconsistent with such Credit Party’s internal

policies of general application and only if, as determined by such Credit Party

in its sole discretion, the transfer of such Loan or Commitment, as the case

may be, would not otherwise adversely affect such Loans or such Credit Party, the

Borrower may request, and such Credit Party shall use reasonable efforts to

effect, such transfer.




 




2.13         Increased Costs.




 




In the event

that any law, regulation, treaty or directive hereafter enacted, promulgated,

approved or issued or any change in any presently existing law, regulation,

treaty or directive therein or in the interpretation or application thereof by

any Governmental Authority charged




 




29





























 




with the administration thereof

or compliance by any Credit Party (or any corporation directly or indirectly

owning or controlling such Credit Party) with any request or directive, whether

or not having the force of law, from any central bank or other Governmental

Authority, agency or instrumentality:




 




(a)           does or shall subject any Credit

Party to any Taxes of any kind whatsoever with respect to any LIBOR Loans or

its obligations under this Agreement to make LIBOR Loans, or change the basis

of taxation of payments to any Credit Party of principal, interest or any other

amount payable hereunder in respect of its LIBOR Loans, including any Taxes

required to be withheld from any amounts payable under the Loan Documents

(except for (i) imposition of, or change in the rate of, tax on the

overall net income of such Credit Party or its Applicable Lending Office for

any of such Advances by any jurisdiction, including, in the case of Credit

Parties incorporated in any State of the United States, such tax imposed by the

United States and (ii) any franchise, unincorporated business or gains taxes);

or




 




(b)           does or shall impose, modify or make

applicable any reserve, special deposit, compulsory loan, assessment, increased

cost or similar requirement against assets held by, or deposits of, or advances

or loans by, or other credit extended by, or any other acquisition of funds by,

any office of such Credit Party in respect of its LIBOR Loans, which, in the

case of LIBOR Loans, is not otherwise included in the determination of the

LIBOR;




 




and the result

of any of the foregoing is to increase the cost to such Credit Party of making,

issuing, renewing, converting or maintaining its LIBOR Loans or its commitment

to make such LIBOR Loans, or to reduce any amount receivable hereunder in

respect of its LIBOR Loans, then, in any such case, the Borrower shall pay such

Credit Party, upon its demand, any additional amounts necessary to compensate

such Credit Party for such additional cost or reduction in such amount

receivable which such Credit Party deems to be material as reasonably determined

by such Credit Party; provided, however, that nothing in this Section shall

require the Borrower to indemnify the Credit Parties with respect to

withholding Taxes for which the Borrower has no obligation under Section 2.11.  No failure by any Credit Party to demand

compensation for any increased cost during any Interest Period shall constitute

a waiver of such Credit Party’s right to demand such compensation at any

time.  A statement setting forth the

calculations of any additional amounts payable pursuant to the foregoing

sentence submitted by a Credit Party to the Borrower shall be conclusive absent

manifest error.  The obligations of the

Borrower under this Section shall survive the termination of this Agreement and

any of the Commitments or the payment of the Notes and all other amounts

payable under the Loan Documents for a period of one hundred eighty (180) days

and shall thereafter terminate forever. 

Failure to demand compensation pursuant to this Section shall not

constitute a waiver of such Credit Party’s right to demand such

compensation.  To the extent that any

increased costs of the type referred to in this Section are being incurred by a

Credit Party and such costs can be eliminated or reduced by the transfer of

such Credit Party’s Loans or Commitment to another of its branches, and to the

extent that such transfer is not inconsistent with such Credit Party’s internal

policies of general application and only if, as determined by such Credit Party

in its sole discretion, the transfer of such Loan or Commitment, as the case

may be, would not otherwise materially adversely affect such Loan or such

Credit Party, the Borrower may request, and such Lender shall use reasonable

efforts to effect, such transfer.




 




30





























 




2.14         Indemnification for Break Funding

Losses.




 




Notwithstanding

anything contained herein to the contrary, if (i) the Borrower shall fail to

borrow on the Borrowing Date, if it shall have requested a LIBOR Loan, or shall

fail to convert on a Conversion Date, after it shall have given notice to do so

in which it shall have requested a LIBOR Loan pursuant to Section 2.8, or (ii)

a LIBOR Loan shall be terminated or prepaid for any reason prior to the last

day of the Interest Period applicable thereto (including, without limitation,

any mandatory prepayment or a prepayment resulting from acceleration or

illegality), the Borrower agrees to indemnify each Credit Party against, and to

pay on demand directly to such Credit Party, any loss or expense suffered by

such Credit Party as a result of such failure to borrow or convert, or such

termination or repayment, including, without limitation, an amount, if greater

than zero, equal to:




 








	

  A


  	

  x


  	

  (B-C)


  	

  x  D


  
	

   


  	

   


  	

  360


  	

   


  










 




where:




 




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

Amount;




 




“B” equals the applicable LIBOR;




 




“C” equals the applicable LIBOR (expressed as a decimal) in effect on

or about the first day of the applicable Remaining Interest Period, based on

the applicable rates offered or bid, as the case may be, on or about such date,

for deposits in an amount equal approximately to such Credit Party’s pro rata

share of the Affected Principal Amount with an Interest Period equal

approximately to the applicable Remaining Interest Period, as determined by

such Credit Party;




 




“D” equals the number of days from and including the first day of the

applicable Remaining Interest Period to but excluding the last day of such

Remaining Interest Period;




 




and any other

out-of-pocket loss or expense (including any internal processing charge

customarily charged by such Credit Party) suffered by such Credit Party in

connection with such LIBOR Loan including, without limitation, in liquidating

or employing deposits acquired to fund or maintain the funding of its pro rata

share of the Affected Principal Amount, or redeploying funds prepaid or repaid,

in amounts which correspond to its pro rata share of the Affected Principal

Amount.  A statement setting forth the

calculations of any amounts payable pursuant to this Section submitted by a

Credit Party to the Borrower shall be conclusive and binding on the Borrower

absent manifest error.  The obligations

of the Borrower under this Section shall survive the termination of this

Agreement and the Commitments and the payment of the Notes and all other

amounts payable under the Loan Documents.




 




31





























 




2.15         Use of Proceeds.




 




The proceeds of Loans shall be

used solely for (i) partial financing for the EIG Acquisition; and (ii) general

business purposes, including, without limitation, working capital.




 




2.16         Capital Adequacy.




 




If (i) after

the date hereof, the enactment or promulgation of, or any change or phasing in

of, any United States or foreign law or regulation or in the interpretation

thereof by any Governmental Authority charged with the administration thereof,

(ii) compliance with any directive or guideline from any central bank or United

States or foreign Governmental Authority (whether or not having the force of

law) promulgated or made after the date hereof, or (iii) compliance with the

Risk-Based Capital Guidelines of the Board of Governors of the Federal Reserve

System as set forth in 12 CFR Parts 208 and 225, or of the Comptroller of the

Currency, Department of the Treasury, as set forth in 12 CFR Part 3, or similar

legislation, rules, guidelines, directives or regulations under any applicable

United States or foreign Governmental Authority affects or would affect the

amount of capital required to be maintained by a Credit Party (or any lending

office of such Credit Party) or any corporation directly or indirectly owning

or controlling such Credit Party or imposes any restriction on or otherwise

adversely affects such Credit Party (or any lending office of such Credit

Party) or any corporation directly or indirectly owning or controlling such

Credit Party and such Credit Party shall have reasonably determined that such

enactment, promulgation, change or compliance has the effect of reducing the

rate of return on such Credit Party’s capital or the asset value to such Credit

Party of any Loan made by such Credit Party as a consequence, directly or

indirectly, of its obligations to make and maintain the funding of its Loans at

a level below that which such Credit Party could have achieved but for such

enactment, promulgation, change or compliance (after taking into account such

Credit Party’s policies regarding capital adequacy) by an amount deemed by such

Credit Party to be material, then, upon demand by such Credit Party, the

Borrower shall promptly pay to such Credit Party such additional amount or

amounts as shall be sufficient to compensate such Credit Party for such

reduction in such rate of return or asset value.  A certificate in reasonable detail as to such amounts submitted

to the Borrower and the Administrative Agent setting forth the determination of

such amount or amounts that will compensate such Credit Party for such

reductions shall be presumed correct absent manifest error.  No failure by any Credit Party to demand

compensation for such amounts hereunder shall constitute a waiver of such

Credit Party’s right to demand such compensation at any time.  Such Credit Party shall, however, use

reasonable efforts to notify the Borrower of such claim within 90 days after

the officer of such Credit Party having primary responsibility for this

Agreement has obtained knowledge of the events giving rise to such claim.  The obligations of the Borrower under this

Section shall survive the termination of this Agreement and the Commitments and

the payment of the Notes and all other amounts payable under the Loan

Documents.




 




2.17         Administrative Agent’s Records.




 




The

Administrative Agent’s records with respect to the Loans, the interest rates

applicable thereto, each payment by the Borrower of principal and interest on

the Loans, and fees, expenses and any other amounts due and payable in

connection with this Agreement shall be presumptively correct absent manifest

error as to the amount of the Loans, and the amount of




 




32





























 




principal and interest paid by

the Borrower in respect of such Loans and as to the other information relating

to the Loans, and amounts paid and payable by the Borrower hereunder and under

the Notes.  The Administrative Agent

will when requested by the Borrower advise the Borrower of the principal and

interest outstanding under the Loans as of the date of such request and the

dates on which such payments are due.




 




3.             FEES; PAYMENTS.




 




3.1           FNB Fee.




 




(a)           The Borrower agrees to pay to FNB and

Lead Arranger on the Effective Date a commitment and loan structuring fee (the

“FNB Fee”), as provided in the Agreement Regarding Fees.  FNB shall pay to the other Lenders a

commitment and loan structuring fee in accordance with their separate

agreement.




 




(b)           The Borrower agrees to pay any other

fees payable to any Credit Party under any separate agreement at the times so

agreed upon in such separate agreements.




 




(c)           The FNB Fee shall be paid on the date

due, in immediately available funds, to FNB. 

The FNB Fee and all other fees and amounts paid shall not be refundable

under any circumstances.




 




3.2           Payments; Application of Payments.




 




Each payment,

including each prepayment, of principal and interest on the Loans and the FNB

Fee, the Administrative Agent’s fees, and any other amounts due hereunder shall

be made by the Borrower to the Administrative Agent or FNB, as applicable,

without set-off, deduction or counterclaim, at its office set forth in Section

11.2 in funds immediately available to the Administrative Agent at such office

by 12:00 noon on the due date for such payment.  Promptly upon receipt thereof by the Administrative Agent, the

Administrative Agent shall remit, in like funds as received, to the Lenders who

maintain any of their Loans as Prime Rate Loans or LIBOR Loans, each such

Lender’s pro rata share of such payments which are in respect of principal or

interest due on such Prime Rate Loans or LIBOR Loans.  The failure of the Borrower to make any such payment by such time

shall not constitute a default hereunder, provided that such payment is made on

such due date, but any such payment made after 12:00 noon on such due date

shall be deemed to have been made on the next Business Day for the purpose of

calculating interest on amounts outstanding on the Loans.  If any payment hereunder or under the Notes

shall be due and payable on a day which is not a Business Day, the due date

thereof (except as otherwise provided in the definition of Interest Period)

shall be extended to the next Business Day and interest shall be payable at the

applicable rate specified herein during such extension.  If any payment is made with respect to any

LIBOR Loans prior to the last day of the applicable Interest Period, the

Borrower shall indemnify each Lender in accordance with Section 2.14.




 




33





























 




4.             REPRESENTATIONS AND WARRANTIES.




 




In order to

induce the Administrative Agent and the Lenders to enter into this Agreement

and to make the Loans the Borrower makes the following representations and

warranties to the Administrative Agent and each Lender:




 




4.1           Existence and Power.




 




(a)           The Borrower (i) is a Maryland

corporation duly organized and validly existing and in good standing under the

laws of Maryland, (ii) has all requisite power and authority to own its

Property and to carry on its business as now conducted, and (iii) is in

good standing and authorized to do business in each jurisdiction in which the

nature of the business conducted therein or the Property owned therein make

such qualification necessary, except where such failure to qualify could not

reasonably be expected to have a Material Adverse Effect.




 




(b)           Each Subsidiary of the Borrower

(including each Subsidiary Guarantor) (i) is a corporation, partnership,

limited liability company, real estate investment trust or business trust, is

validly existing and in good standing under the laws of the jurisdiction of its

organization and has all requisite power and authority to own its Property and

to carry on its business as now conducted, and (ii) is in good standing

and authorized to do business in each other jurisdiction in which the nature of

the business conducted therein or the Property owned therein make such

qualification necessary, except where such failure to qualify could not

reasonably be expected to have a Material Adverse Effect.




 




4.2           Authority.




 




The Borrower has full legal

power and authority to enter into, execute, deliver and perform the terms of

the Loan Documents to which it is a party and to make the borrowings

contemplated thereby, to execute, deliver and carry out the terms of the Notes

and to incur the obligations provided for herein and therein, all of which have

been duly authorized by all proper and necessary corporate action.




 




4.3           Binding Agreement.




 




(a)           The Loan Documents to which the

Borrower is a party constitute the valid and legally binding obligations of the

Borrower, enforceable in accordance with their respective terms, except as such

enforceability may be limited by applicable bankruptcy, insolvency,

reorganization or other similar laws affecting the enforcement of creditors’

rights generally.




 




(b)           The execution, delivery and

performance by the Borrower of the Loan Documents to which it is a party do not

violate the provisions of any applicable statute, law (including, without

limitation, any applicable usury or similar law), rule or regulation of any

Governmental Authority.




 




34





























 




4.4           Subsidiaries; DownREIT Partnerships.




 




As of the

Effective Date, the Borrower has only the Subsidiaries set forth on Schedule 4.4.  Schedule 4.4 sets forth the name of,

and the ownership interest of the Borrower in, each Subsidiary of the Borrower

and identifies each Subsidiary that is a Subsidiary Guarantor, in each case as

of the Effective Date. The shares of each corporate Subsidiary of the Borrower

that are owned by the Borrower are duly authorized, validly issued, fully paid

and nonassessable and are owned free and clear of any Liens.  The interest of the Borrower in each

non-corporate Subsidiary is owned free and clear of any Liens (other than Liens

applicable to a partner under the terms of any partnership agreement, or those

applicable to a member under the terms of any limited liability company

operating agreement,  to secure the

Borrower’s obligation to make capital contributions or similar payments

thereunder).  As of the Effective Date,

the only DownREIT Partnership is Excel Realty Partners, L.P.  As of the Effective Date, there is no

Subsidiary of the Borrower (other than ERT Development Corporation) that is a

guarantor of any unsecured Indebtedness of Borrower (other than the Loans) that

is not also a Subsidiary Guarantor.




 




4.5           Litigation.




 




(a)           There are no actions, suits or proceedings

at law or in equity or by or before any Governmental Authority (whether or not

purportedly on behalf of the Borrower or any Subsidiary of the Borrower)

pending or, to the knowledge of the Borrower, threatened against the Borrower

or any Subsidiary of the Borrower or any of their respective Properties or

rights, which (i) if adversely determined, could reasonably be expected to have

a Material Adverse Effect, (ii) call into question the validity or

enforceability of any of the Loan Documents, or (iii) could reasonably be

expected to result in the rescission, termination or cancellation of any

franchise, right, license, permit or similar authorization held by the Borrower

or any Subsidiary of the Borrower, which rescission, termination or

cancellation could reasonably be expected to have a Material Adverse Effect.




 




(b)           As of the date hereof, Schedule

4.5 sets forth all actions, suits and proceedings at law or in equity or by

or before any Governmental Authority (whether or not purportedly on behalf of

the Borrower or any Subsidiary of the Borrower) pending or, to the knowledge of

the Borrower, threatened against the Borrower, any Subsidiary of the Borrower

or any of their respective Properties or rights which, if adversely determined,

could have a Material Adverse Effect.




 




4.6           Required Consents.




 




No consent,

authorization or approval of, filing with, notice to, or exemption by,

stockholders, any Governmental Authority or any other Person not obtained is

required to be obtained by the Borrower to authorize, or is required in

connection with the execution, delivery and performance of the Loan Documents

or is required to be obtained by the Borrower as a condition to the validity or

enforceability of the Loan Documents.




 




35





























 




4.7           No Conflicting Agreements.




 




Neither the

Borrower nor any Subsidiary of the Borrower is in default beyond any applicable

grace or cure period under any mortgage, indenture, contract or agreement to

which it is a party or by which it or any of its Property is bound, the effect

of which default could reasonably be expected to have a Material Adverse

Effect.  The execution, delivery or

carrying out of the terms of the Loan Documents will not constitute a default

under, or result in the creation or imposition of, or obligation to create, any

Lien upon any Property of the Borrower or any Subsidiary of the Borrower

pursuant to the terms of any such mortgage, indenture, contract or agreement.




 




4.8           Compliance with Applicable Laws.




 




Neither the

Borrower nor any Subsidiary of the Borrower is in default with respect to any

judgment, order, writ, injunction, decree or decision of any Governmental

Authority which default could reasonably be expected to have a Material Adverse

Effect. The Borrower and each Subsidiary of the Borrower is in compliance in

all material respects with all statutes, regulations, rules and orders

applicable to Borrower or such Subsidiary of all Governmental Authorities,

including, without limitation, (i) Environmental Laws and ERISA, a violation of

which could reasonably be expected to have a Material Adverse Effect and (ii)

§§856-860 of the Code, compliance with which is required to preserve the

Borrower’s status as a REIT.




 




4.9           Taxes.




 




Each of the

Borrower and its Subsidiaries has filed or caused to be filed all tax returns

required to be filed and has paid, or has filed appropriate extensions and has

made adequate provision for the payment of, all taxes shown to be due and

payable on said returns or in any assessments made against it (other than those

being contested as permitted under Section 7.4) in which the failure to pay

could reasonably be expected to have a Material Adverse Effect, and no tax

Liens have been filed with respect thereto. 

The charges, accruals and reserves on the books of the Borrower and each

Subsidiary of the Borrower with respect to all federal, state, local and other

taxes are, to the best knowledge of the Borrower, adequate for the payment of

all such taxes, and the Borrower knows of no unpaid assessment which is due and

payable against it or any of its Subsidiaries or any claims being asserted

which could reasonably be expected to have a Material Adverse Effect.




 




4.10         Governmental Regulations.




 




Neither the

Borrower nor any Subsidiary of the Borrower is subject to regulation under the

Public Utility Holding Company Act of 1935, as amended, the Federal Power Act,

as amended, or the Investment Company Act of 1940, as amended, and neither the

Borrower nor any Subsidiary of the Borrower is subject to any statute or

regulation which prohibits or restricts the incurrence of Indebtedness under

the Loan Documents, including, without limitation, statutes or regulations

relative to common or contract carriers or to the sale of electricity, gas,

steam, water, telephone, telegraph or other public utility services.




 




36





























 




4.11         Federal Reserve Regulations; Use of

Loan Proceeds.




 




Neither the

Borrower nor any Subsidiary of the Borrower is engaged principally, or as one

of its important activities, in the business of extending credit for the

purpose of purchasing or carrying any Margin Stock.  No part of the proceeds of the Loans will be used, directly or

indirectly, for a purpose which violates any law, rule or regulation of any Governmental

Authority, including, without limitation, the provisions of Regulations T, U or

X of the Board of Governors of the Federal Reserve System, as amended.  No part of the proceeds of the Loans will be

used, directly or indirectly, to purchase or carry Margin Stock or to extend

credit to others for the purpose of purchasing or carrying Margin Stock.




 




4.12         Plans; Multiemployer Plans.




 




As of the

Effective Date, each of the Borrower and its ERISA Affiliates maintains or

makes contributions only to the Plans and Multiemployer Plans listed on Schedule

4.12.  Each Plan, and, to the best

knowledge of the Borrower, each Multiemployer Plan, is in compliance in all

material respects with, and has been administered in all material respects in

compliance with, the applicable provisions of ERISA, the Code and any other

applicable Federal or state law, and no event or condition is occurring or

exists concerning which the Borrower would be under an obligation to furnish a

report to the Administrative Agent and each Lender as required by Section

7.2(d).  As of September 30, 2002, each

Plan was “fully funded”, which for purposes of this Section means that the fair

market value of the assets of such Plan is not less than the present value of

the accrued benefits of all participants in the Plan, computed on a plan

termination basis.  To the best

knowledge of the Borrower, no Plan has ceased being fully funded.




 




4.13         Financial Statements.




 




The Borrower

has heretofore delivered to the Administrative Agent and the Lenders (i) copies

of the audited Consolidated Balance Sheet of the Borrower and its Consolidated

Subsidiaries as of December 31, 2001, and the Consolidated Statements of

Operations, Stockholders’ Equity and Cash Flows for the Borrower and its

Consolidated Subsidiaries for the six months ended June 30, 2002 and (ii) the

Consolidated Statements of Income and Cash Flows for the Borrower and its

Consolidated Subsidiaries for the six months ending June 30, 2002, certified by

its Chief Financial Officer (collectively, with the related notes and

schedules, the “Financial Statements”). 

The Financial Statements fairly present in all material respects the

Consolidated financial condition and results of the operations of the Borrower

and its Consolidated Subsidiaries as of the dates and for the periods indicated

therein and have been prepared in conformity with GAAP.  Except as reflected in the Financial

Statements or in the notes thereto, neither the Borrower nor any Subsidiary of

the Borrower has any obligation or liability of any kind (whether fixed,

accrued, contingent, unmatured or otherwise) involving material amounts which,

in accordance with GAAP, should have been shown on the Financial Statements and

was not.  Since June 30, 2002 there has

been no material adverse change in the condition (financial or otherwise),

operations, prospects or business of the Borrower and its Subsidiaries taken as

a whole.




 




37





























 




4.14         Property.




 




Each of the

Borrower and its Subsidiaries has good and marketable title to all of its

Property, title to which is material to the Borrower or such Subsidiary,

subject to no Liens, except Permitted Liens. 

There are no unpaid or outstanding real estate or similar taxes or

assessments on or against any Real Property other than (i) real estate or other

taxes or assessments that are not yet due and payable, and (ii) such taxes as

the Borrower or any Subsidiary of the Borrower is contesting in good faith or

which individually or in the aggregate could not reasonably be expected to have

a Materially Adverse Effect.  There are

no pending eminent domain proceedings against any Real Property, and, to the

knowledge of the Borrower, no such proceedings are presently threatened or contemplated

by any Governmental Authority against any Real Property, which pending,

threatened or contemplated proceedings individually or in the aggregate, could

reasonably be expected to have a Material Adverse Effect.  None of the Real Property is now damaged as

a result of any fire, explosion, accident, flood or other casualty which

individually or in the aggregate could reasonably be expected to have a

Material Adverse Effect.




 




4.15         Franchises, Intellectual Property,

Etc.




 




Each of the

Borrower and its Subsidiaries possesses or has the right to use all franchises,

Intellectual Property, licenses and other rights, in each case that are

material and necessary for the conduct of its business, with no known conflict

with the valid rights of others which could reasonably be expected to have a

Material Adverse Effect.  No event has

occurred which permits or, to the best knowledge of the Borrower, after notice

or the lapse of time or both, or any other condition, could reasonably be

expected to permit, the revocation or termination of any such franchise,

Intellectual Property, license or other right and which revocation or

termination could reasonably be expected to have a Material Adverse Effect.




 




4.16         Environmental Matters.




 




(a)           The Borrower and each of its

Subsidiaries is in compliance with the requirements of all applicable

Environmental Laws except for such non-compliance which could not, either

individually or in the aggregate, reasonably be expected to have a Material

Adverse Effect.




 




(b)           No Hazardous Substances have been (i)

generated or manufactured on, transported to or from, treated at, stored at or

discharged from any Real Property in violation of any Environmental Laws; (ii)

discharged into subsurface waters under any Real Property in violation of any

Environmental Laws; or (iii) discharged from any Real Property on or into

property or waters (including subsurface waters) adjacent to any Real Property

in violation of any Environmental Laws, which violation, in the case of any of

(i), (ii) or (iii) could, either individually or in the aggregate, reasonably

be expected to have a Material Adverse Effect.




 




(c)           Neither the Borrower nor any of its

Subsidiaries (i) has received notice (written or oral) or otherwise learned of

any claim, demand, suit, action, proceeding, event, condition, report, directive,

lien, violation, non-compliance or investigation indicating or concerning any

potential or actual liability (including, without limitation, potential

liability for




 




38





























 




enforcement, investigatory

costs, cleanup costs, government response costs, removal costs, remedial costs,

natural resources damages, property damages, personal injuries or penalties)

arising in connection with (x) any non-compliance with or violation of the

requirements of any applicable Environmental Laws, or (y) the presence of any

Hazardous Substance on any Real Property (or any Real Property previously owned

by the Borrower or any Subsidiary of the Borrower) or the release or threatened

release of any Hazardous Substance into the environment which, in either case,

could, either individually or in the aggregate, reasonably be expected to have

a Material Adverse Effect, (ii) has any threatened or actual liability in

connection with the presence of any Hazardous Substance on any Real Property

(or any Real Property previously owned by the Borrower or any Subsidiary of the

Borrower) or the release or threatened release of any Hazardous Substance into

the environment which, in either case, could, either individually or in the

aggregate, reasonably be expected to have a Material Adverse Effect, (iii) has

received notice of any federal or state investigation evaluating whether any

remedial action is needed to respond to the presence of any Hazardous Substance

on any Real Property (or any Real Property previously owned by the Borrower or

any Subsidiary of the Borrower) or a release or threatened release of any

Hazardous Substance into the environment for which the Borrower or any

Subsidiary of the Borrower is or may be liable the results of which could, in

either case, either individually or in the aggregate, reasonably be expected to

have a Material Adverse Effect, or (iv) has received notice that the Borrower

or any Subsidiary of the Borrower is or may be liable to any Person under any

Environmental Law which liability could, either individually or in the

aggregate, reasonably be expected to have a Material Adverse Effect.




 




(d)           To the best of the Borrower’s

knowledge, no Real Property is located in an area identified by the Secretary

of Housing and Urban Development as an area having special flood hazards, or if

any such Real Property is located in such a special flood hazard area, then the

Borrower has obtained all insurance that is required to be maintained by law or

which is customarily maintained by Persons engaged in similar businesses and

owning similar Properties in the same general areas in which the Borrower

operates.




 




4.17         Labor Relations.




 




Neither the

Borrower nor any of its Subsidiaries is a party to any collective bargaining

agreement, other than the collective bargaining agreement covering fewer than

10 employees at the Roosevelt Mall Shopping Center in Philadelphia,

Pennsylvania, and, to the best knowledge of the Borrower, no petition has been

filed or proceedings instituted by any employee or group of employees with any

labor relations board seeking recognition of a bargaining representative with

respect to the Borrower or such Subsidiary. 

There are no material controversies pending between the Borrower or any

Subsidiary and any of their respective employees, which could reasonably be

expected to have a Material Adverse Effect.




 




4.18         [Intentionally Omitted.]




 




4.19         Solvency.




 




On the

Effective Date and immediately following the making of the Loans, and after

giving effect to the application of the proceeds of such Loans:  (a) the fair value of the assets of the

Borrower and its Subsidiaries, taken as a whole, at a fair valuation, will

exceed the debts and




 




39





























 




liabilities, including Contingent

Obligations, of the Borrower and its Subsidiaries, taken as a whole; (b) the

present fair saleable value of the Property of the Borrower and its

Subsidiaries, taken as a whole, will be greater than the amount that will be

required to pay the probable liability of the debts and other liabilities,

subordinated, contingent or otherwise of the Borrower and its Subsidiaries, as

such debts and other liabilities become absolute and mature; (c) the Borrower

and its Subsidiaries, taken as a whole, will be able to pay its debts and

liabilities, subordinated, contingent or otherwise, as such debts and

liabilities become absolute and mature; and (d) the Borrower and its

Subsidiaries, taken as a whole, will not have unreasonably small capital with

which to conduct the business in which they are engaged as such business is now

conducted and is proposed to be conducted hereafter.




 




4.20         REIT Status.




 




The Borrower

(i) has made an election pursuant to Section 856 of the Code to qualify as a

REIT, (ii) has satisfied and continues to satisfy all of the requirements under

§§ 856-859 of the Code and the regulations and rulings issued thereunder which

must be satisfied for the Borrower to maintain its status as a REIT, and (iii)

is in compliance in all material respects with all Code sections applicable to

REITs generally and the regulations and rulings issued thereunder.




 




4.21         List of Unencumbered Assets.




 




A list of all

the Unencumbered Assets as of the date of this Agreement is attached hereto as Schedule

4.21.




 




4.22         [Intentionally Omitted].




 




4.23         Operation of Business.




 




The Borrower

is a self-advised, and self-managed REIT.




 




4.24         No Misrepresentation.




 




No

representation or warranty contained herein and no certificate or report

furnished or to be furnished by the Borrower or any Subsidiary of the Borrower

in connection with the transactions contemplated hereby, contains or will

contain a misstatement of material fact, or, to the best knowledge of the

Borrower, omits or will omit to state a material fact required to be stated in

order to make the statements herein or therein contained not misleading in the

light of the circumstances under which made.




 




5.             CONDITIONS TO LOANS.




 




The obligation

of each Lender to make its Loan shall be subject to the fulfillment of the

following conditions precedent:




 




5.1           Evidence of Action.




 




(a)           The Administrative Agent shall have

received a certificate, dated the Effective Date, of the Secretary or Assistant

Secretary of the Borrower substantially in the form




 




40





























 




of Exhibit I (i)

attaching a true and complete copy of the resolutions of its Board of Directors

authorizing the execution and delivery of the Loan Documents by the Borrower

and the performance of the Borrower’s obligations thereunder, and of all other

documents evidencing other necessary action (in form and substance reasonably

satisfactory to the Administrative Agent) taken by it to authorize the Loan

Documents and the transactions contemplated thereby, (ii) attaching a true and

complete copy of its articles of incorporation and by-laws, (iii) setting forth

the incumbency of its officer or officers who may sign the Loan Documents,

including therein a signature specimen of such officer or officers, and (iv)

certifying that said corporate charter and by-laws are true and complete copies

thereof, are in full force and effect and have not been amended or modified.




 




(b)           The Administrative Agent shall have

received a certificate, dated the Effective Date, of the Secretary or Assistant

Secretary of each Subsidiary Guarantor substantially in the form of Exhibit

J (i) attaching a true and complete copy of the resolutions of its Board of

Directors or Trustees, as the case may be, authorizing its execution and

delivery of the Guaranty and the performance of its obligations thereunder, and

of all other documents evidencing other necessary action (in form and substance

reasonably satisfactory to the Administrative Agent) taken by it to authorize

the Guaranty and the transactions contemplated thereby, (ii) attaching a true

and complete copy of its articles of incorporation or corporate charter or

declaration of trust and, if applicable, by-laws, (iii) setting forth the

incumbency of its officer or officers who may sign the Guaranty, including

therein a signature specimen of such officer or officers, and (iv) certifying

that said articles of incorporation, corporate charter or declaration of trust

and, if applicable, by-laws, are true and complete copies thereof, is in full

force and effect and has not been amended or modified.




 




(c)           The Administrative Agent shall have

received certificates of good standing for the Borrower from the Maryland State

Department of Assessments and Taxation and for each Subsidiary Guarantor from

the Secretary of State for the State in which such Subsidiary Guarantor is

incorporated, and for the Borrower from each jurisdiction other than Maryland

in which the Borrower is qualified to do business, provided that such

Secretaries issue such certificates with respect to the Borrower.




 




5.2           This Agreement.




 




The

Administrative Agent shall have received counterparts of this Agreement signed

by each of the parties hereto (or receipt by the Administrative Agent from a

party hereto of a facsimile signature page signed by such party which shall

have agreed to promptly provide the Administrative Agent with originally

executed counterparts hereof).




 




5.3           Notes.




 




The

Administrative Agent shall have received the Notes, duly executed by an

Authorized Signatory of the Borrower.




 




5.4           Guaranty.




 




The

Administrative Agent shall have received counterparts of the Guaranty signed by

each of the Subsidiary Guarantors (or receipt by the Administrative Agent from

a party hereto of




 




41





























 




a facsimile signature page

signed by such party which shall have agreed to promptly provide the

Administrative Agent with originally executed counterparts thereof).




 




5.5           Litigation.




 




There shall be

no injunction, writ, preliminary restraining order or other order of any nature

issued by any Governmental Authority in any respect affecting the transactions

provided for herein and no action or proceeding by or before any Governmental

Authority shall have been commenced and be pending or, to the knowledge of the

Borrower, threatened, seeking to prevent or delay the transactions contemplated

by the Loan Documents or challenging any other terms and provisions hereof or

thereof or seeking any damages in connection therewith and the Administrative

Agent shall have received a certificate of an Authorized Signatory of the

Borrower to the foregoing effects.




 




5.6           Opinion of Counsel to the Borrower.




 




The

Administrative Agent shall have received an opinion of (i) Hogan & Hartson,

L.L.P., outside counsel to the Borrower, and (ii) Steven F. Siegel, Esq.,

in-house counsel to the Borrower, and (iii) counsel to each Subsidiary

Guarantor, each addressed to the Administrative Agent and the Lenders, and each

dated the Effective Date, and each in form and substance satisfactory to

Administrative Agent, covering such matters as Administrative Agent may

reasonably request.




 




5.7           Fees.




 




The FNB Fee

and all other fees payable to the Administrative Agent, the Lead Arranger

and  the Lenders shall have been paid.




 




5.8           Fees and Expenses of Special Counsel.




 




The fees and

expenses of Special Counsel in connection with the preparation, negotiation and

closing of the Loan Documents shall have been paid.




 




5.9           Compliance.




 




On the

Effective Date and after giving effect to the Loans to be made or created, (a)

the Borrower shall be in compliance with all of the terms, covenants and

conditions hereof, (b) there shall not exist and be continuing any Default or

Event of Default, (c) the representations and warranties contained in the Loan

Documents shall be true and correct, and (d) the aggregate outstanding

principal balance of the Loans shall not exceed the Total Commitment Amount.




 




5.10         Loan Closing.




 




All documents

required by the provisions of the Loan Documents to be executed or delivered to

the Administrative Agent on or before the Effective Date shall have been

executed and shall have been delivered at the office of the Administrative

Agent set forth in Section 11.2 on or before the Effective Date.




 




42





























 




5.11         Documentation and Proceedings.




 




All corporate

matters and legal proceedings and all documents and papers in connection with

the transactions contemplated by the Loan Documents shall be reasonably

satisfactory in form and substance to the Administrative Agent and the

Administrative Agent shall have received all information and copies of all

documents which the Administrative Agent or the Required Lenders may reasonably

have requested in connection therewith, such documents (where appropriate) to

be certified by an Authorized Signatory of the Borrower or proper Governmental

Authorities.




 




5.12         Required Acts and Conditions.




 




All acts,

conditions and things (including, without limitation, the obtaining of any

necessary regulatory approvals and the making of any filings, recordings or

registrations) required to be done or performed by the Borrower and to have

happened on or prior to the Effective Date and which are necessary for the

continued effectiveness of the Loan Documents, shall have been done or

performed and shall have happened in due compliance with all applicable laws.




 




5.13         Approval of Special Counsel.




 




All legal

matters in connection with the making of each Loan shall be reasonably

satisfactory to Special Counsel.




 




5.14         Other Documents.




 




The

Administrative Agent shall have received such other documents and information

with respect to the Borrower and its Subsidiaries or the transactions

contemplated hereby as the Administrative Agent or the Lenders shall reasonably

request.




 




5.15         [INTENTIONALLY OMITTED]




 




6.             [INTENTIONALLY OMITTED]




 




7.             AFFIRMATIVE COVENANTS.




 




The Borrower

agrees that, so long as any Loan remains outstanding and unpaid, or any other

amount is owing under any Loan Document to any Lender or the Administrative

Agent, the Borrower shall:




 




7.1           Financial Statements.




 




Maintain a standard

system of accounting in accordance with GAAP, and furnish or cause to be

furnished to the Administrative Agent and each Lender:




 




(a)           Annual Statements.  As soon as available, but in any event

within 120 days after the end of each fiscal year of the Borrower, a copy of

its Consolidated Balance Sheet as at the end of such fiscal year, together with

the related Consolidated Statements of Income,




 




43





























 




Stockholders’ Equity and Cash

Flows as of and through the end of such fiscal year, setting forth in each case

in comparative form the figures for the preceding fiscal year.  The Consolidated Balance Sheets and

Consolidated Statements of Income, Stockholders’ Equity and Cash Flows shall be

audited and certified without qualification by the Accountants, which

certification shall (i) state that the examination by such Accountants in

connection with such Consolidated financial statements has been made in

accordance with generally accepted auditing standards and, accordingly,

includes the examination, on a test basis, of evidence supporting the amounts

and disclosures in such Consolidated financial statements, and (ii) include the

opinion of such Accountants that such Consolidated financial statements present

fairly, in all material respects, the Consolidated financial position of the

Borrower and its Subsidiaries, as of the date of such Consolidated financial

statements, and the Consolidated results of their operations and their cash

flows for each of the years identified therein in conformity with GAAP (subject

to any change in the requirements of GAAP).




 




(b)           Annual Operating Statements and

Rent Roll.  As soon as available,

but in any event within 90 days after the end of each fiscal year of the

Borrower, copies of (i) the operating statements (in a form reasonably

satisfactory to the Administrative Agent) for all Real Property of the

Borrower, and (ii) a Rent Roll, each of which shall be certified by the Chief

Financial Officer to be true, correct and complete in all material respects.




 




(c)           Quarterly Statements.  As soon as available, but in any event

within 60 days after the end of the first three fiscal quarters of the

Borrower, a copy of the unaudited Consolidated Balance Sheet of the Borrower as

at the end of each such quarterly period, together with the related unaudited

Consolidated Statements of Income and Cash Flows for the elapsed portion of the

fiscal year through the end of such period, setting forth in each case in

comparative form the figures for the corresponding periods of the preceding

fiscal year, certified by the Chief Financial Officer as being true, correct

and complete in all material respects and as presenting fairly the Consolidated

financial condition and the Consolidated results of operations of the Borrower

and its Subsidiaries.




 




(d)           Quarterly Information Regarding

Unencumbered Assets.  As soon as

available, but in any event 60 days after the end of each of the first three

fiscal quarters of the Borrower (120 days after the end of the last fiscal

quarter of the Borrower), a list of all the Unencumbered Assets owned by the

Borrower, any wholly owned Subsidiary of the Borrower and each DownREIT

Partnership as of the last day of such fiscal quarter setting forth the

following information with respect to each such Unencumbered Asset as of such

date:  (i) asset type (i.e., retail

shopping center or residential apartment building); (ii) location; (iii)

percentage of the Unencumbered Asset owned by the Borrower, any wholly owned

Subsidiary of the Borrower and each DownREIT Partnership; and (iv) the Net

Operating Income for such Unencumbered Asset during such fiscal quarter.




 




(e)           Compliance Certificate.  Within 60 days after the end of each of the

first three fiscal quarters of the Borrower (120 days after the end of the last

fiscal quarter of the Borrower), a Compliance Certificate, certified by the

Chief Financial Officer, setting forth in reasonable detail the computations

demonstrating the Borrower’s compliance with the provisions of Sections 8.12, 8.13,

8.14, 8.15, 8.16, 8.17 and 8.18.




 




44





























 




(f)            Rent Roll.  Upon the request of the Administrative

Agent, a Rent Roll.




 




(g)           Other Information.  Such other information as the Administrative

Agent or any Lender may reasonably request from time to time.




 




7.2           Certificates; Other Information.




 




Furnish to the

Administrative Agent and each Lender:




 




(a)           Defaults Under Other Indebtedness.  Prompt written notice if:  (i) any Indebtedness of the Borrower or any

Subsidiary of the Borrower is declared or shall become due and payable prior to

its stated maturity, or called and not paid when due, or (ii) a default that

extends beyond any applicable notice or grace period shall have occurred under

any note (other than the Notes) or the holder of any such note, or other

evidence of Indebtedness, certificate or security evidencing any such

Indebtedness or any obligee with respect to any other Indebtedness of the

Borrower or any Subsidiary of the Borrower has the right to declare any such

Indebtedness due and payable prior to its stated maturity, and, in the case of

either (i) or (ii), the Indebtedness that is the subject of (i) or (ii) is, in

the aggregate, $15,000,000 or more;




 




(b)           Action of Governmental Authorities.  Prompt written notice of:  (i) receipt of any citation, summons,

subpoena, order to show cause or other document naming the Borrower or any

Subsidiary of the Borrower a party to any proceeding before any Governmental

Authority which could reasonably be expected to have a Material Adverse Effect

or which calls into question the validity or enforceability of any of the Loan

Documents, and include with such notice a copy of such citation, summons,

subpoena, order to show cause or other document; (ii) any lapse or other termination

of any Intellectual Property, license, permit, franchise or other authorization

issued to the Borrower or any Subsidiary of the Borrower by any Person or

Governmental Authority, which lapse or termination could reasonably be expected

to have a Material Adverse Effect; and (iii) any refusal by any Person or

Governmental Authority to renew or extend any such material Intellectual

Property, license, permit, franchise or other authorization, which refusal

could reasonably be expected to have a Material Adverse Effect;




 




(c)           SEC or other Governmental Reports

and Filings.  Promptly upon becoming

available, copies of all regular, periodic or special reports which the

Borrower or any Subsidiary of the Borrower may now or hereafter be required to

file with or deliver to any securities exchange or the Securities and Exchange

Commission, or any other Governmental Authority succeeding to the functions

thereof, pursuant to the Securities Exchange Act of 1934, as amended.




 




(d)           ERISA Information.  Promptly, and in any event within ten

Business Days, after the Borrower knows or has reason to know that any of the

events or conditions enumerated below with respect to any Plan or Multiemployer

Plan has occurred or exists, a statement signed by the Chief Financial Officer

setting forth details with respect to such event or condition and the action,

if any, which the Borrower or an ERISA Affiliate proposes to take with respect

thereto; provided, however, that if such event or condition is required to be

reported or noticed to the PBGC, such statement, together with a copy of the

relevant report or notice to the




 




45





























 




PBGC, shall be furnished

promptly and in any event not later than ten days after it is reported or

noticed to the PBGC:




 




(i)            any reportable event, as defined in

Section 4043(b) of ERISA with respect to a Plan, as to which the PBGC has not

by regulation waived the requirement of Section 4043(a) of ERISA that it be

notified within thirty days of the occurrence of such event (provided that a

failure to meet the minimum funding standard of Section 412 of the Code or of

Section 302 of ERISA, including, without limitation, the failure to make, on or

before its due date, a required installment under Section 412(m) of the Code or

Section 302(e) of ERISA or the disqualification of such Plan for purposes of

Section 4043(b)(1) of ERISA, shall be a reportable event regardless of the

issuance of any waivers in accordance with Section 412(d) of the Code) and any

request for a waiver under Section 412(d) of the Code for any Plan;




 




(ii)           the distribution under Section 4041

of ERISA of a notice of intent to terminate any Plan or any action taken by the

Borrower or any ERISA Affiliate to terminate any Plan;




 




(iii)          the institution by the PBGC of

proceedings under Section 4042 of ERISA for the termination of, or the

appointment of a trustee to administer, any Plan, or the receipt by the

Borrower or any ERISA Affiliate of a notice from a Multiemployer Plan that such

action has been taken by the PBGC with respect to such Multiemployer Plan;




 




(iv)          the complete or partial withdrawal

from a Multiemployer Plan by the Borrower or any ERISA Affiliate that results

in liability under Section 4201 or 4204 of ERISA (including the obligation to

satisfy secondary liability as a result of a purchaser default) or the receipt

of the Borrower or any ERISA Affiliate of notice from a Multiemployer Plan that

it is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA

or that it intends to terminate or has terminated under Section 4041A of ERISA;




 




(v)           the institution of a proceeding by a

fiduciary of any Multiemployer Plan against the Borrower or any ERISA Affiliate

to enforce Section 515 of ERISA, which proceeding is not dismissed within thirty

days from its commencement;




 




(vi)          the adoption of an amendment to any

Plan pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA that

would result in the loss of the tax-exempt status of the trust of which such

Plan is a part or the Borrower or any ERISA Affiliate fails to timely provide

security to such Plan in accordance with the provisions of said Sections; and




 




(vii)         any event or circumstance exists which

may reasonably be expected to constitute grounds for the incurrence of material

liability by the Borrower or any ERISA Affiliate under Title IV of ERISA or

under Sections 412(c)(11) or 412(n) of the Code with respect to any employee

benefit plan;




 




(e)           ERISA Reports.  Promptly after the request of the

Administrative Agent or any Lender therefor, copies of each annual report filed

pursuant to Section 104 of ERISA with respect to each Plan (including, to the

extent required by Section 104 of ERISA, the related financial and actuarial

statements and opinions and other supporting statements, certifications,

schedules and information referred to in Section 103 of ERISA) and each annual

report filed




 




46





























 




with respect to each Plan under

Section 4065 of ERISA; provided, however, that in the case of a Multiemployer

Plan, such annual reports shall be furnished only if they are available to the

Borrower or any ERISA Affiliate;




 




(f)            Notice of Sales or Transfers.  Quarterly, on each date that a Compliance

Certificate is to be delivered pursuant to Section 7.1(e), a list of all sales

or transfers of any Unencumbered Assets that occurred during such quarter;

provided that, if during any fiscal quarter of the Borrower any sale or

transfer of an Unencumbered Asset, which combined with all other such sales or

transfers of Unencumbered Assets during such fiscal quarter, would exceed

$100,000,000 in the aggregate, then the Borrower shall promptly provide such

list and a certification of the Chief Financial Officer as to the Borrower’s

compliance with Sections 8.12 and 8.16;




 




(g)           Casualties or Condemnations.  Prompt written notice of any casualty or

condemnation of any Real Property, if such casualty or condemnation could

reasonably be expected to have a Material Adverse Effect;




 




(h)           Environmental Law Notices.  Prompt written notice of any order, notice,

claim or proceeding received by, or brought against, the Borrower or any

Subsidiary of the Borrower, or with respect to any of the Real Property, under

any Environmental Law, which could reasonably be expected to have a Material

Adverse Effect;




 




(i)            Management Letters and Reports.  If requested by the Administrative Agent,

promptly thereafter, copies of all material management letters and similar

material reports provided to the Borrower by the Accountants;




 




(j)            New Subsidiary Guarantors.  Notice of any Subsidiary (i) which Borrower

is adding as a Subsidiary Guarantor in the event that the Borrower and the then

current Subsidiary Guarantors contribute less than 80% of Adjusted Net

Operating Income (as further described in Section 7.11) as of the end of

any fiscal quarter of Borrower, or (ii) that has become a guarantor under any

existing or future unsecured Indebtedness of Borrower (as further described in

Section 7.11), such notice to be delivered to the Administrative Agent

concurrently with the delivery of the Compliance Certificate with respect to

such quarter;




 




(k)           Changes in Name or Fiscal Year.  Prompt written notice of (i) any change in

the Borrower’s name, with copies of all filings with respect to such name change

attached thereto, and (ii) any change in its fiscal year from that in effect on

the Effective Date.




 




(l)            Defaults or Events of Default.  Prompt written notice if there shall occur

and be continuing a Default or an Event of Default; and




 




(m)          Other Information.  Such other information as the Administrative

Agent or any Lender shall reasonably request from time to time.




 




47





























 




7.3           Legal Existence.




 




(a)           Borrower’s Legal Existence.  Maintain its status as a Maryland

corporation in good standing in the State of Maryland and in each other

jurisdiction in which the failure so to do could reasonably be expected to have

a Material Adverse Effect.




 




(b)           Legal Existence of Subsidiaries.  Cause each Subsidiary of the Borrower to

maintain its status as a real estate investment trust, business trust,

corporation, limited liability company or partnership, as the case may be, in

good standing in its state of formation and in each other jurisdiction in which

the failure so to do could reasonably be expected to have a Material Adverse

Effect; provided, that Borrower may cause any Subsidiary (other than a

Subsidiary Guarantor, except as allowed by Section 8.2) to be liquidated

or dissolved.




 




7.4           Taxes.




 




Pay and

discharge when due, and cause each Subsidiary of the Borrower so to do, all

Taxes, assessments and governmental charges, license fees and levies upon, or

with respect to, the Borrower or such Subsidiary and all Taxes upon the income,

profits and Property of the Borrower and its Subsidiaries, which if unpaid,

could reasonably be expected to have a Material Adverse Effect, unless and to

the extent only that such Taxes, assessments, governmental charges, license

fees and levies shall be contested in good faith and by appropriate proceedings

diligently conducted by the Borrower or such Subsidiary and such contest has

the effect of staying the collection of any Lien from any Property of the

Borrower or its Subsidiaries arising from such non–payment, and provided

that the Borrower shall give the Administrative Agent prompt notice of such

contest and that such reserve or other appropriate provision as shall be

required in accordance with GAAP (as determined by the Accountants) shall have

been made therefor.




 




7.5           Insurance.




 




Maintain, and

cause each Subsidiary of the Borrower to maintain, insurance on its Property

against such risks and in such amounts as is customarily maintained by Persons

engaged in similar businesses and owning similar Properties in the same general

areas in which the Borrower or the relevant Subsidiary operates, and file with

the Administrative Agent within 10 Business Days after request therefor a

detailed list of such insurance then in effect, stating the names of the

carriers thereof, the policy numbers, the insureds thereunder, the amounts of

insurance, dates of expiration thereof, and the Property and risks covered

thereby, together with a certificate of the Chief Financial Officer certifying

that in the opinion of such officer such insurance complies with the obligations

of the Borrower under this Section, and is in full force and effect.




 




7.6           Payment of Indebtedness and

Performance of Obligations.




 




Pay and

discharge when due, and cause each Subsidiary of the Borrower to pay and

discharge, all lawful Indebtedness, obligations and claims for labor, materials

and supplies or otherwise which, if unpaid, could reasonably be expected to

have a Material Adverse Effect, unless such Indebtedness shall be contested in

good faith and by appropriate proceedings diligently conducted by the Borrower

or such Subsidiary and such contest has the effect of




 




48





























 




staying the collection of any

Lien from any Property of the Borrower or its Subsidiaries arising from such

non–payment, and provided that the Borrower shall give the Administrative

Agent prompt notice of such contest and that such reserve or other appropriate

provision as shall be required in accordance with GAAP (as determined by the

Accountants) shall have been made therefor.




 




7.7           Maintenance of Property;

Environmental Investigations.




 




(a)           In all material respects, at all

times, maintain, protect and keep in good repair, working order and condition

(ordinary wear and tear excepted), and cause each Subsidiary of the Borrower so

to do, all Property necessary to the operation of the Borrower’s or such

Subsidiary’s business.




 




(b)           In the event that the Administrative

Agent shall have a reasonable basis for believing that Hazardous Substances may

be on, at, under or around any Real Property in violation of any applicable

Environmental Law which, individually or in the aggregate could reasonably be

expected to have a Material Adverse Effect, promptly conduct and complete (at

the Borrower’s expense) all investigations, studies, samplings and testings

relative to such Hazardous Substances as the Administrative Agent may

reasonably request.




 




7.8           Observance of Legal Requirements.




 




(a)           Observe and comply in all respects,

and cause each Subsidiary of the Borrower so to do, with all laws, ordinances,

orders, judgments, rules, regulations, certifications, franchises, permits,

licenses, directions and requirements of all Governmental Authorities, which

now or at any time hereafter may be applicable to it, except (i) where

noncompliance with any of the foregoing (individually or in the aggregate)

could not reasonably be expected to have a Material Adverse Effect, or (ii)

such thereof as shall be contested in good faith and by appropriate proceedings

diligently conducted by it and such contest has the effect of staying the

collection of any Lien from any Property of the Borrower or its Subsidiaries

arising from such noncompliance, and provided that the Borrower shall give the

Administrative Agent prompt notice of any contest with respect to clause (ii)

to the extent that noncompliance could reasonably be expected to have a

Material Adverse Effect and that such reserve or other appropriate provision as

shall be required in accordance with GAAP (as determined by the Accountants)

shall have been made therefor.




 




(b)           Use and operate all of its facilities

and property in compliance with all Environmental Laws and cause each of its

Subsidiaries so to do, and keep all necessary permits, approvals, certificates,

licenses and other authorizations relating to environmental matters in effect

and remain in compliance therewith and cause each of its Subsidiaries so to do,

and handle all Hazardous Materials in compliance with all applicable

Environmental Laws and cause each of its Subsidiaries so to do, except where

noncompliance with any of the foregoing (individually or in the aggregate)

could not reasonably be expected to have a Material Adverse Effect.




 




7.9           Inspection of Property; Books and

Records; Discussions.




 




Keep proper

books of record and account in which full, true and correct entries in

conformity with GAAP and all requirements of law shall be made of all dealings

and




 




49





























 




transactions in relation to its

business and activities and permit representatives of the Administrative Agent

and any Lender during normal business hours and on reasonable prior notice to

visit its offices, to inspect any of its Property and to examine and make

copies or abstracts from any of its books and records as often as may reasonably

be required under the circumstances, and to discuss the business, operations,

prospects, licenses, Property and financial condition of the Borrower or and

its Subsidiaries with the officers thereof and the Accountants.  Borrower may have a representative accompany

Administrative Agent or any Lender on any such visit, inspection or discussion.




 




7.10         Licenses, Intellectual Property.




 




Maintain, and

cause each Subsidiary of the Borrower to maintain, in full force and effect,

all licenses, franchises, Intellectual Property, permits, authorizations and

other rights as are necessary for the conduct of its business, the loss of

which could reasonably be expected to have a Material Adverse Effect.




 




7.11         Additional Guarantors.




 




At any time

after the date hereof, in the event that, during any fiscal quarter of

Borrower, Borrower and the Subsidiary Guarantors do not own Unencumbered Assets

which contribute at least eighty percent (80%) of the Adjusted Net Operating

Income for all Unencumbered Assets of the Borrower and its Subsidiaries on a

Consolidated basis, then, at the time that Borrower is to provide the

Compliance Certificate with respect to such quarter to Administrative Agent,

Borrower shall cause such Subsidiaries of Borrower, as designated by the

Borrower and approved by Administrative Agent (such approval not to be

unreasonably withheld), to execute and deliver a Guaranty to the Administrative

Agent, for the benefit of the Lenders, duly executed by such Subsidiaries

(together with certificates and attachments of a nature similar to those

described in Section 5.1(b) and (c) with respect to such Subsidiaries

and an opinion of counsel of a nature similar to those in the form required

pursuant to Section 5.6 (iii)) so that Borrower and the Subsidiary

Guarantors will again own Unencumbered Assets which contribute at least 80% of

the Adjusted Net Operating Income for all Unencumbered Assets of the Borrower

and its Subsidiaries on a Consolidated basis. 

Additionally, in the event that any Subsidiary of the Borrower, whether

presently existing or hereafter formed or acquired, which is not a Subsidiary

Guarantor at such time, shall after the date hereof become a guarantor under

any existing or future unsecured Indebtedness of Borrower, then promptly after

the Administrative Agent’s request therefor, Borrower shall cause such

Subsidiary to execute and deliver a Guaranty to the Administrative Agent, for

the benefit of the Lenders, duly executed by such Subsidiaries (together with

certificates and attachments of a nature similar to those described in

Section 5.1(b) and (c) with respect to such Subsidiaries and an

opinion of counsel of a nature similar to those in the form required pursuant

to Section 5.6 (iii)).  Notwithstanding

the foregoing, the foregoing Adjusted Net Operating Income for all Unencumbered

Assets threshold of this Section shall not be applicable from and after the

occurrence of, and during the continuance of, (i) an Event of Default, or

(ii) a reduction by S&P of its Senior Debt Rating below BBB- or a

reduction by Moody’s of its Senior Debt Rating below Baa3 (it being understood

that at such time, the Administrative Agent can require any Subsidiary of the

Borrower (other than an Excluded Subsidiary) which has not executed a Guaranty

to immediately comply with requirements of this Section).




 




50





























 




7.12         REIT Status; Operation of Business.




 




(a)           Maintain its status

under §§856 et

seq. of the Code as a REIT.




 




(b)           Carry on all

business operations of the Borrower as a self–advised, self–managed

REIT.




 




(c)           Manage, or cause one or more of its

Subsidiaries at all times to manage, at least 90% of all Properties of the

Borrower and its Subsidiaries.




 




(d)           Cause the common stock of Borrower at

all times to be listed for trading and to be traded on the New York Stock

Exchange, the American Stock Exchange or another nationally recognized stock

exchange.




 




7.13         More Restrictive Agreements.




 




Should

Borrower or any Subsidiary Guarantor after the date hereof enter into any

agreement or modify any existing agreement (a “More Restrictive Agreement”)

relating to any unsecured Indebtedness of Borrower or any Subsidiary Guarantor

that includes negative covenants or default provisions (or any other provision

which may have the same practical effect) which are more restrictive against

Borrower or any Subsidiary Guarantor than those set forth in Section 8, Section

9.1(g) or Section 9.1(j) of this Agreement (the “Original Provisions”), the

Borrower shall promptly notify the Administrative Agent and, if requested by

the Required Lenders, the Borrower, the Administrative Agent, and the Required

Lenders shall (and if applicable, the Borrower shall cause any Subsidiary

Guarantor to) promptly amend this Agreement and the other Loan Documents to

include some or all of such more restrictive provisions as determined by the

Required Lenders in their sole discretion. 

The Borrower and each Subsidiary Guarantor agree to deliver to the

Administrative Agent copies of any agreements or documents (or modifications thereof)

pertaining to any such Indebtedness as the Administrative Agent from time to

time may request.  Notwithstanding the

foregoing, any amendments to provisions contained in this Agreement and the

other Loan Documents made pursuant to this Section 7.13 shall only be effective

for such period of time as the applicable More Restrictive Agreement is in full

force and effect (or continues to be more restrictive), and upon the

termination of the effectiveness of such More Restrictive Agreement (or upon

such More Restrictive Agreement becoming less restrictive than the

corresponding Original Provision), the provisions affected by such amendment

shall return to the applicable Original Provisions.




 




8.             NEGATIVE COVENANTS.




 




The Borrower

agrees that, so long as any Loan remains outstanding and unpaid or any other

amount is owing under any Loan Document to any Lender or the Administrative

Agent the Borrower shall not, directly or indirectly:




 




8.1           Liens.




 




Create, incur,

assume or suffer to exist any Lien upon any of its Property, whether now owned

or hereafter acquired, or permit any Subsidiary of the Borrower so to do,

except the




 




51





























 




following “Permitted

Liens”:  (i) Liens for Taxes,

assessments or similar charges incurred in the ordinary course of business

which are not delinquent or the existence of which do not otherwise violate the

covenants in Section 7.4, (ii) Liens in connection with workers’ compensation,

unemployment insurance or other social security obligations (but not ERISA and

other types of statutory obligation incurred in the ordinary course of

business), (iii) Liens, deposits or pledges to secure bids, tenders, contracts

(other than contracts for the payment of money), leases, statutory obligations,

surety or appeal bonds, performance bonds, completion bonds or other

obligations of like nature arising in the ordinary course of business, (iv)

zoning ordinances, easements, rights of way, use restrictions, exclusive use

limitations in any lease of Real Property, reciprocal easement agreements,

minor defects, irregularities, and other restrictions, charges or encumbrances

affecting Real Property (whether or not recorded), which do not materially

adversely affect the value of such Real Property or materially impair its use

for the operation of the business of the Borrower or such Subsidiary, (v)

statutory Liens arising by operation of law such as mechanics’, materialmen’s,

carriers’, warehousemen’s liens incurred in the ordinary course of business

which are not delinquent or the existence of which do not otherwise violate the

covenants in Section 7.6, (vi) Liens arising out of judgments or decrees which

are being contested in accordance with Section 7.8 or the existence of which do

not otherwise violate the covenants in Section 7.8 or result in a default

pursuant to Section 9.1(j), (vii) mortgages and related financing statements

and security agreements on Real Property, provided that the existence of such

mortgages, and the indebtedness secured thereby, does not cause the Borrower to

be in violation of Section 8.15 or 8.16, (viii) Liens in favor of the

Borrower or any Subsidiary Guarantor, provided that the Indebtedness secured by

any such Lien is held by the Borrower or such Subsidiary Guarantor, (ix) the interests

of lessees and lessors under leases of real or personal property made in the

ordinary course of business which could not reasonably be expected

(individually or in the aggregate) to have a Material Adverse Effect, (x) Liens

on the interests of Borrower or any Subsidiary of Borrower in a Joint Venture,

provided that the existence of such Liens, and the indebtedness secured

thereby, does not cause the Borrower to be in violation of Section 8.15, (xi)

Liens under Capital Leases, provided that the existence of such Capital Lease,

and the indebtedness secured thereby, does not cause the Borrower to be in

violation of Section 8.15, and (xii) Liens not otherwise permitted by

clauses (i) through (xi) of this Section which do not in the aggregate exceed,

in principal amount, $15,000,000.




 




8.2           Merger, Consolidation and Certain

Dispositions of Property.




 




(a)           Consolidate with, be acquired by, or

merge into or with any Person, or sell, lease or otherwise dispose of all or

substantially all of its Property (in one transaction or a series of

transactions), or permit any Subsidiary Guarantor so to do, or liquidate or

dissolve, except (i) the merger or consolidation of any Subsidiary Guarantor of

the Borrower into or with the Borrower, (ii) the merger or consolidation of any

two or more Subsidiary Guarantors (including any Subsidiaries that become

Subsidiary Guarantors upon the consummation of such a transaction with a

Subsidiary Guarantor), (iii) the merger or consolidation of the Borrower or a

Subsidiary Guarantor with any other Person, provided that (A) the Borrower or

such Subsidiary Guarantor is the surviving entity in such merger or

consolidation, or contemporaneously with the consummation of such transaction

the surviving entity becomes a Subsidiary Guarantor, (B) the total book value

of the assets of the entity which is merged into or consolidated with the

Borrower or such Subsidiary Guarantor is less than 35% of the total book value

of the assets of the Borrower and its Subsidiaries on a Consolidated basis

immediately following such merger or




 




52





























 




consolidation,

(C) immediately prior to such merger or consolidation the Borrower shall

have provided to the Administrative Agent a Compliance Certificate prepared on

a pro–forma basis (and adjusted in the best good faith estimate of the

Borrower, based on the advice of the Accountants, to give effect to such merger

or consolidation) demonstrating that after giving effect to such merger or

consolidation, no Default shall exist with respect to any of the covenants set

forth in Sections 8.12, 8.13, 8.14, 8.15, 8.16, 8.17 and 8.18 and

(D) after giving effect to such merger or consolidation, no Event of

Default shall then exist, or (iv)  the merger or consolidation of a Subsidiary

Guarantor with any other Person in which such other Person shall be the

surviving entity, the liquidation or dissolution of a Subsidiary Guarantor, or

the sale, lease or other disposition by a Subsidiary Guarantor of all or

substantially all of its Property, so long as, after giving effect to such

transaction, (x) no Default or Event of Default shall then exist, (y) such

transaction does not violate Section 8.2(b) and (z) Borrower and/or the

Subsidiary Guarantors (including any new Subsidiary Guarantors provided by the

Borrower pursuant to Section 7.11 in connection with such transaction) own

Unencumbered Assets which contribute at least 80% of the Adjusted Net Operating

Income for all Unencumbered Assets of the Borrower and its Subsidiaries on a

Consolidated basis.  In the event that a

Subsidiary Guarantor shall engage in a transaction permitted by Section

8.2(a)(iv) (other than a lease of all or substantially all of its assets), then

such Subsidiary Guarantor shall be released by Administrative Agent from liability

under the Subsidiary Guaranty, provided that the Borrower shall deliver to

Administrative Agent evidence satisfactory to Administrative Agent that

(X) the Borrower will be in compliance with all covenants of this

Agreement after giving effect to such transaction, (Y) if such transaction

involves the sale or disposition by a Subsidiary Guarantor of all or

substantially all of its Property, such Subsidiary Guarantor shall be legally

dissolved after its release from the Subsidiary Guaranty (provided further that

a Subsidiary Guarantor that has transferred substantially all of its assets may

be released from its liability under the Subsidiary Guaranty without dissolving

upon the approval of the Administrative Agent, which approval may be withheld

in its sole discretion) and (Z) the net cash proceeds from such sale or

disposition are being distributed to Borrower as part of such dissolution.  Nothing in this Section 8.2(a) shall in any

way restrict the activities of a Subsidiary that is not a Subsidiary Guarantor.




 




(b)           Except as expressly permitted by

Section 8.2(a), sell, transfer, contribute, master lease or dispose of any of

its Property, either directly or indirectly, or permit any Subsidiary Guarantor

so to do, except that if at the time thereof and immediately after giving

effect thereto, no Default shall have occurred and be continuing, (i) any

Subsidiary Guarantor may sell, transfer, contribute, master lease or otherwise

dispose of its assets to the Borrower or to any other Subsidiary Guarantor,

(ii) the Borrower may sell, transfer, contribute, master lease or

otherwise dispose of its assets to any Subsidiary Guarantor, (iii) in

connection with any transaction pursuant to which a Real Property asset of

Borrower or any Subsidiary Guarantor is or will be encumbered with a mortgage

(as permitted under Section 8.1(vii)), the Borrower or any Subsidiary

Guarantor may transfer such asset to any Subsidiary, (iv) Borrower or any

Subsidiary Guarantor of Borrower may sell, transfer, contribute or dispose of

worn-out or obsolete Property, (v) Borrower or any Subsidiary Guarantor

may sell, transfer, contribute, master lease or otherwise dispose of any of its

assets to any Subsidiary, so long as, after giving effect to such transaction,

Borrower and/or the Subsidiary Guarantors (including any new Subsidiary

Guarantors provided by the Borrower pursuant to Section 7.11 in connection

with such transaction) own Unencumbered Assets which contribute at least 80% of

the Adjusted Net Operating Income for all Unencumbered Assets of the Borrower

and its Subsidiaries on a




 




53





























 




Consolidated basis, and

(vi) the Borrower or any Subsidiary of the Borrower may sell, transfer,

contribute, master lease or otherwise dispose of Property in an arm’s length

transaction (or, if the transaction involves an Affiliate of the Borrower, if

the transaction complies with Section 8.8), including, without limitation, a

disposition of Property pursuant to a merger or consolidation (so long as such

merger or consolidation is not prohibited by Section 8.2(a)), provided,

however, that for any fiscal year of the Borrower, any sale, transfer, master

lease, contribution or other disposition of Property in reliance on this clause

(vi) which when combined with all other sales, transfers, master leases,

contributions or dispositions of Property in reliance on this clause (vi) made

in such fiscal year shall not exceed 25% of the total book value of all

Property of the Borrower and its Subsidiaries determined as of the date of each

such transaction.  Nothing in this

Section 8.2(b) (other than clause (vi)) shall in any way restrict the

activities of a Subsidiary that is not a Subsidiary Guarantor.




 




8.3           Investments, Loans, Etc.




 




At any time,

purchase or otherwise acquire, hold or invest in the Stock of, or any other

interest in, any Person, or make any loan or advance to, or enter into any

arrangement for the purpose of acquiring, holding or investing in or loaning or

advancing to, or make any other investment, whether by way of capital

contribution, time deposit or otherwise, in or with any Person, or permit any

Subsidiary of the Borrower so to do, (all of which are sometimes referred to

herein as “Investments”, it being understood, without limitation, that

the provision by Borrower or any Subsidiary of guarantees and/or letters of

credit to other Persons shall not constitute Investments but shall instead

constitute Indebtedness) except the following (to the extent that maintaining

any thereof would not at any time violate the requirements of Section 856(c) of

the Code):




 




(a)           demand deposits, certificates of

deposit, bankers acceptances and domestic and eurodollar time deposits with any

Lender, or any other commercial bank, trust company or national banking

association incorporated under the laws of the United States or any State

thereof and having undivided capital, surplus and undivided profits exceeding

$500,000,000 and a long term debt rating of A or A2, as determined,

respectively, by S&P and Moody’s;




 




(b)           short–term direct obligations

of the United States of America or agencies thereof whose obligations are

guaranteed by the United States of America;




 




(c)           securities commonly known as

“commercial paper” issued by a corporation organized and existing under the

laws of the United States or any State thereof which at the time of purchase

are rated by S&P or Moody’s at not less than “A1” or “P1,” respectively;




 




(d)           mortgage–backed securities

guaranteed by the Governmental National Mortgage Association, the Federal

National Mortgage Association or the Federal Home Loan Mortgage Corporation and

other mortgage–backed bonds which at the time of purchase are rated by

S&P or Moody’s at not less than “Aa” or “AA,” respectively;




 




(e)           repurchase agreements having a term

not greater than 90 days and fully secured by securities described in the

foregoing paragraph (b) or (d) with banks described in the




 




54





























 




foregoing paragraph (a) or with

financial institutions or other corporations having total assets in excess of

$50,000,000;




 




(f)            shares of “money market funds”

registered with the SEC under the Investment Company Act of 1940 which maintain

a level per-share value, invest principally in the investments described in one

or more of the foregoing paragraphs (a) through (e) and have total assets of in

excess of $50,000,000;




 




(g)           Real Property;




 




(h)           Subject to Section 8.17, equity

investments in any Person (other than Subsidiaries) and Notes Receivable

investments;




 




(i)            Investments (debt or equity) in

Subsidiaries of the Borrower;




 




(j)            investments in respect of (1)

equipment, inventory and other tangible personal property or intangible

property acquired in the ordinary course of business, (2) current trade and

customer accounts receivable for services rendered in the ordinary course of

business, (3) advances to employees for travel expenses other company–related

expenses, and (4) prepaid expenses made in the ordinary course of business;




 




(k)           Hedging Agreements made in connection

with any Indebtedness;




 




(l)            repurchases of any common or

preferred stock or other equity interests (or securities convertible into such

interests) in the Borrower that have been previously issued by the Borrower

which do not exceed, in any calendar year, (1) 10% of the aggregate outstanding

shares of common and preferred stock and other equity interests in Borrower as

of the date hereof, in any combination, plus (2) 10% of the aggregate of any

additional shares of common and preferred stock and other equity interests in

Borrower issued after the date hereof, in any combination;




 




(m)          redemptions of preferred stock of the

Borrower in accordance with the terms thereof;




 




(n)           redemptions for cash or common Stock

of the Borrower of units of limited partner interests or limited liability

company interests in a DownREIT Partnership;




 




(o)           loans or advances to employees of the

Borrower, provided that all such loans in the aggregate do not at any time

exceed $25,000,000 in the aggregate;




 




(p)           Capital Leases; and




 




(q)           subject to Section 8.17, any other

Investments not included in paragraphs (a) through (p) deemed appropriate by

the Borrower (provided that in no event shall Investments made in reliance upon

the exception set forth in this paragraph (q) exceed $75,000,000 in any fiscal

year of Borrower).




 




55





























 




8.4           Business Changes.




 




Change in any

material respect the nature of the business of the Borrower or its Subsidiaries

as conducted on the Effective Date.




 




8.5           Amendments to Organizational Documents.




 




Amend or

otherwise modify its corporate charter or by–laws in any way (other than

in connection with the issuance or classification of preferred stock of the

Borrower) which would adversely affect the interests of the Administrative

Agent and the Lenders under any of the Loan Documents, or permit any Subsidiary

of the Borrower to amend its organizational documents in a manner which could

have the same result.




 




8.6           [Intentionally Omitted.]




 




8.7           Sale and Leaseback.




 




Enter into any

arrangement with any Person providing for the leasing by it of Property which

has been or is to be sold or transferred by it to such Person or to any other

Person to whom funds have been or are to be advanced by such Person on the

security of such Property or its rental obligations, or permit any Subsidiary

of the Borrower so to do, except for sale and leasing transactions described

herein for which the combined selling price of all Property subject to all such

transactions does not exceed $100,000,000 in any fiscal year of Borrower.




 




8.8           Transactions with Affiliates.




 




Become a party

to any transaction in an amount that exceeds $100,000 with an Affiliate unless

the terms and conditions relating thereto (i) have been approved by a majority

of the disinterested directors of the Borrower, (ii) have been approved by a

majority of votes cast by the stockholders of the Borrower, or (iii) are upon

fair and reasonable terms, no less favorable to the Borrower or its

Subsidiaries than would be obtained in a comparable arm’s–length transaction

with a Person not an Affiliate of the Borrower or its Subsidiary, or permit any

Subsidiary of the Borrower so to do.




 




8.9           Issuance of Additional Capital Stock

by Subsidiary Guarantors.




 




Permit any

Subsidiary Guarantor to issue any additional Stock or other equity interest of

such Subsidiary Guarantor, other than the issuance of partnership or limited

liability company units in a DownREIT Partnership which is a Subsidiary

Guarantor, provided that such units are issued in consideration of the contribution

to the DownREIT Partnership of assets qualifying as “real estate assets” under

Section 856(c) of the Code.




 




8.10         Hedging Agreements.




 




Enter into, or

permit any of its Subsidiaries to enter into, any Hedging Agreement, other than

Hedging Agreements entered into in the ordinary course of business to hedge or

mitigate interest rate risks to which the Borrower or any Subsidiary of the

Borrower is exposed in the conduct of its business or the management of its

liabilities.




 




56





























 




8.11         Restricted Payments.




 




Permit the

Borrower to make Restricted Payments, except that:




 




(i)            except as set forth in clause (ii)

below, the Borrower may declare and pay dividends payable with respect to its

equity securities in any fiscal quarter of the Borrower if after giving effect

to such dividend, such dividend, when added to the amount of all other such

dividends paid in the same fiscal quarter and the preceding three (3) fiscal

quarters, would not exceed the greater of (A) ninety-five percent (95%) of its

Funds from Operations for the four fiscal quarters ending prior to the quarter

in which such dividend is paid or (B) the minimum amount of such dividends

required under the Code to enable the Borrower to continue to maintain its status

under the Code as a REIT, as evidenced (in the case of clause (B)) by a

certification of Chief Financial Officer containing calculations in reasonable

detail satisfactory in form and substance to Administrative Agent;




 




(ii)           if an Event of Default under Section

9.1(a) or (b) has occurred and is continuing, the Borrower may declare and pay

dividends with respect to its equity securities which shall not exceed the

minimum amount of such dividends required under the Code to enable the Borrower

to continue to maintain its status under the Code as a REIT, as evidenced by a

certification of Chief Financial Officer containing calculations in reasonable

detail reasonably satisfactory in form and substance to Administrative Agent;




 




(iii)          the Borrower may effect Stock

repurchases to the extent permitted by Sections 8.3(l) or 8.3(m);




 




(iv)          the Borrower may effect “cashless

exercises” of options granted under the Borrower’s stock option plans;




 




(v)           the Borrower may distribute rights or

equity securities under any rights plan adopted by the Borrower; and




 




(vi)          the Borrower may declare and pay

dividends (or effect Stock splits or reverse Stock splits) with respect to its

equity securities payable solely in additional shares of its equity securities.




 




8.12         Unencumbered Assets Coverage Ratio.




 




Permit the

Unencumbered Assets Coverage Ratio to be less than 2.0:1.0 at any time.




 




8.13         Fixed Charge Coverage Ratio.




 




Permit the

Fixed Charge Coverage Ratio to be less than 1.75:1.0 at any time.




 




8.14         Minimum Tangible Net Worth.




 




Permit the

Tangible Net Worth of the Borrower and its Subsidiaries on a Consolidated basis

at any time to be less than the sum of (i) $1,250,000,000, plus (ii) 80% of the

aggregate net




 




57





























 




proceeds received by the

Borrower from and after the Effective Date in connection with the issuance of

any capital stock of the Borrower.




 




8.15         Maximum Total Indebtedness.




 




(a)           Permit at any time Consolidated Total

Indebtedness (i) to be more than 55% of Adjusted Consolidated Total Assets at

any time prior to the EIG Acquisition Date, (ii) to be more than 57.5% of

Adjusted Consolidated Total Assets at any time after the EIG Acquisition Date

but prior to the occurrence of a Capital Event, and (iii) to be more than 55%

of Adjusted Consolidated Total Assets at any time thereafter; or




 




(b)           Permit at any time the Consolidated

Total Indebtedness secured by mortgages on Real Property owned by the Borrower

and its Subsidiaries at such time to exceed 40% of Adjusted Consolidated Total Assets

at such time.




 




8.16         Indebtedness to Unencumbered

Assets Ratio.




 




Permit at any

time the portion of the Consolidated Total Indebtedness (which shall exclude

Indebtedness of Joint Ventures that are not Subsidiaries) consisting of

Consolidated unsecured Indebtedness of the Borrower and its Subsidiaries at

such time (i) to be more than 55% of Unencumbered Asset Value at any time prior

to the EIG Acquisition Date, (ii) to be more than 57.5% of Unencumbered Asset

Value at any time after the EIG Acquisition Date but prior to the occurrence of

a Capital Event, and (iii) to be more than 55% of Unencumbered Asset Value at

any time thereafter.




 




8.17         Maximum Book Value of Ancillary

Assets.




 




Permit the

book value of the Ancillary Assets at any time to be more than 25% of the

Adjusted Consolidated Total Assets of the Borrower and its Subsidiaries on a

Consolidated basis at such time.  For

purposes of this Section 8.17 the book value of any Ancillary Asset not owned

100%, directly or indirectly, by the Borrower or any of its Subsidiaries shall

be adjusted by multiplying the same by the Borrower’s Interest in such

Ancillary Asset during the fiscal quarter of the Borrower ending as of any date

of determination of such book value.




 




8.18         Development Activity.




 




Engage, directly

or indirectly, or permit any Subsidiary or Joint Venture to engage, in the

ground-up development of Real Property except for the ground-up development of

New Construction Assets to be used principally as a retail shopping center,

provided that the book value of New Construction Assets by Borrower and its

Subsidiaries and Joint Ventures shall not at any time exceed fifteen percent

(15%) of the Borrower’s Adjusted Consolidated Total Assets.  For purposes of this Section 8.18 the

book value of any New Construction Assets not owned 100%, directly or

indirectly, by the Borrower or any of its Subsidiaries shall be adjusted by

multiplying the same by the Borrower’s Interest in such New Construction Asset

during the fiscal quarter of the Borrower ending as of any date of

determination of such book value.




 




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9.             DEFAULT.




 




9.1           Events of Default.




 




The following

shall each constitute an “Event of Default” hereunder:




 




(a)           The failure of the Borrower to pay

any installment of principal on any Note on the date when due and payable; or




 




(b)           The failure of the Borrower to pay

any installment of interest or any other fees, expenses or other charges

payable under any Loan Document within five Business Days of the date when due

and payable; or




 




(c)           The use of the proceeds of any Loan

in a manner inconsistent with or in violation of Section 2.15; or




 




(d)           The failure of the Borrower to

observe or perform any covenant or agreement contained in Section 7.12(a),

7.12(b), or 8 (other than Sections 8.1, 8.3, 8.5, 8.7, 8.8 and 8.10 as to which

the provisions of paragraph (e) below shall apply); or




 




(e)           The failure to observe or perform any

other term, covenant, or agreement contained in any Loan Document and such

failure shall have continued unremedied for a period of 30 days after notice

thereof from the Administrative Agent to the Borrower, provided that if

Borrower shall have exercised reasonable diligence to cure such failure and

such failure cannot be cured within such 30 day period despite such reasonable

diligence, Borrower shall have the right to cure such failure within 90 days

after the date of such notice from Administrative Agent provided Borrower

diligently and continuously pursues the completion of such cure; or




 




(f)            Any representation or warranty of

the Borrower (or of any officer of the Borrower on its behalf) made in any Loan

Document to which it is a party or in any certificate, report, opinion (other

than an opinion of counsel) or other document delivered or to be delivered

pursuant thereto, shall prove to have been incorrect or misleading (whether

because of misstatement or omission) in any material respect when made; or




 




(g)           Any obligation of the Borrower (other

than its obligations under the Notes) or any Subsidiary of the Borrower,

whether as principal, guarantor, surety or other obligor, for the payment of

any Indebtedness shall (i) become or shall be declared to be due and payable

prior to the expressed maturity thereof, or (ii) shall not be paid when due or

within any grace period for the payment thereof, or (iii) shall be subject, by

the holder of the obligation evidencing such Indebtedness, to acceleration

(after the expiration of any applicable notice and cure periods) prior to the

expressed maturity thereof, and the sum of all such Indebtedness which is the

subject of paragraphs (i) - (iii) inclusive exceeds (A) at any time, in the

case of Indebtedness other than Non–Recourse Indebtedness, $15,000,000,

and (B) in any calendar year, in the case of Non–Recourse Indebtedness,

$50,000,000 in the aggregate during such year; 

or




 




(h)           The Borrower or any Subsidiary of the

Borrower shall (i) suspend or discontinue its business (except as permitted by

Section 7.3 or 8.2), (ii) make an assignment for the benefit of creditors,

(iii) generally not be paying its debts as such debts become due,




 




59





























 




(iv) admit in writing its

inability to pay its debts as they become due, (v) file a voluntary petition in

bankruptcy, (vi) become insolvent (however such insolvency shall be evidenced),

(vii) file any petition or answer seeking for itself any reorganization,

arrangement, composition, readjustment of debt, liquidation or dissolution or

similar relief under any present or future statute, law or regulation of any

jurisdiction, (viii) petition or apply to any tribunal for any receiver,

custodian or any trustee for any substantial part of its Property, (ix) be the

subject of any such proceeding filed against it which remains undismissed for a

period of 60 days, (x) file any answer admitting or not contesting the material

allegations of any such petition filed against it or any order, judgment or

decree approving such petition in any such proceeding, (xi) seek, approve,

consent to, or acquiesce in any such proceeding, or in the appointment of any

trustee, receiver, custodian, liquidator, or fiscal agent for it, or any

substantial part of its Property, or an order is entered appointing any such

trustee, receiver, custodian, liquidator or fiscal agent and such order remains

in effect for 60 days, or (xii) take any formal action for the purpose of

effecting any of the foregoing; provided that the events described in this

Section 9.1(h) as to any Subsidiary of the Borrower that is not a Subsidiary

Guarantor shall not constitute an Event of Default unless the aggregate book

value of Borrower’s direct or indirect equity Investment in all such

Subsidiaries exceeds $50,000,000; or




 




(i)            An order for relief is entered under

the United States bankruptcy laws or any other decree or order is entered by a

court having jurisdiction (i) adjudging the Borrower or any Subsidiary bankrupt

or insolvent, (ii) approving as properly filed a petition seeking

reorganization, liquidation, arrangement, adjustment or composition of or in

respect of the Borrower or any Subsidiary under the United States bankruptcy

laws or any other applicable Federal or state law, (iii) appointing a receiver,

liquidator, assignee, trustee, custodian, sequestrator (or other similar

official) of the Borrower or any Subsidiary or of any substantial part of the

Property thereof, or (iv) ordering the winding up or liquidation of the affairs

of the Borrower or any Subsidiary, and any such decree or order continues

unstayed and in effect for a period of 60 days; provided that the events

described in this Section 9.1(i) as to any Subsidiary of the Borrower that is

not a Subsidiary Guarantor shall not constitute an Event of Default unless the

aggregate book value of Borrower’s direct or indirect equity Investment in all

such Subsidiaries exceeds $50,000,000; or




 




(j)            Judgments or decrees against the

Borrower or any Subsidiary of the Borrower not covered by insurance aggregating

in excess of $15,000,000 shall not be paid, stayed on appeal, discharged, bonded

or dismissed for a period of 45 days; or




 




(k)           Any Loan Document shall cease, for

any reason, to be in full force and effect, or the Borrower shall so assert in

writing or shall disavow any of its obligations thereunder; or




 




(l)            An event or condition specified in

Section 7.2(d) shall occur or exist with respect to any Plan or Multiemployer

Plan and, as a result of such event or condition, together with all other such

events or conditions, the Borrower shall be reasonably likely to incur a

liability to a Plan, a Multiemployer Plan, the PBGC, or any combination

thereof, equal to or in excess of $15,000,000 individually or in the aggregate;

or




 




(m)          There shall occur a Change of Control;

or




 




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(n)           If any Loan Document (i) is

determined by any court or Governmental Authority to be illegal, invalid or

unenforceable in accordance with its terms, or (ii) shall be canceled,

terminated, revoked or rescinded other than in accordance with its terms or

with the written consent or approval of the Lenders; or




 




(o)           (i) Any Subsidiary Guarantor

shall fail to comply in any material respect with any covenant made by it in

the Guaranty or if at any time any representation or warranty made by any

Subsidiary Guarantor in the Guaranty or in any other document, statement or

writing made to the Administrative Agent, the Lead Arranger or the Lenders

shall prove to have been incorrect or misleading in any material respect when

made, or (ii) if a default by any Subsidiary Guarantor shall occur under the

Guaranty after the expiration of any applicable notice and grace period; or

(iii) if any Subsidiary Guarantor shall revoke or attempt to revoke, contest,

commence any action or raise any defense (other than the defense of payment)

against its obligations under the Guaranty; or




 




(p)           There shall occur and be continuing

an Event of Default under and as defined in the Existing Credit Agreement.




 




Upon the

occurrence of an Event of Default or at any time thereafter during the

continuance thereof, (a) if such event is an Event of Default specified in

clause (h) or (i) above, the Loans, all accrued and unpaid interest thereon,

and all other amounts owing under the Loan Documents shall immediately become

due and payable, and the Administrative Agent may, and upon the direction of

the Required Lenders shall, exercise any and all remedies and other rights

provided in the Loan Documents, and (b) if such event is any other Event of

Default with the consent of the Required Lenders, the Administrative Agent may,

and upon the direction of the Required Lenders shall, by notice of default to

the Borrower, declare the Loans, all accrued and unpaid interest thereon and

all other amounts owing under the Loan Documents to be due and payable

forthwith, whereupon the same shall immediately become due and payable, and the

Administrative Agent may, and upon the direction of the Required Lenders shall,

exercise any and all remedies and other rights provided pursuant to the Loan

Documents.  Except as otherwise provided

in this Section, presentment, demand, protest and all other notices of any kind

are hereby expressly waived.  The

Borrower hereby further expressly waives and covenants not to assert any

appraisement, valuation, stay, extension, redemption or similar laws, now or at

any time hereafter in force which might delay, prevent or otherwise impede the

performance or enforcement of any Loan Document.




 




In the event

that the Notes shall have been declared due and payable pursuant to the

provisions of this Section, any funds received by the Administrative Agent and

the Lenders from or on behalf of the Borrower shall be applied by the

Administrative Agent and the Lenders in liquidation of the Loans and the

obligations of the Borrower under the Loan Documents in the following manner

and order:  (i) first, to the payment of

interest on and then the principal portion of any Loans which the

Administrative Agent may have advanced on behalf of any Lender for which the

Administrative Agent has not then been reimbursed by such Lender or the

Borrower; (ii) second, to reimburse the Administrative Agent and the Lenders

for any expenses due from the Borrower pursuant to the provisions of Section

11.5; (iii) third, to the payment of all other fees, expenses and amounts

due under the Loan Documents (other than principal and interest on the Notes);

provided, however, that distributions in respect of such fees and expenses due

to the




 




61





























 




Administrative Agent from the

Borrower shall be made pari passu with respect to the payment of any other

fees, expenses or amounts due the Lenders from the Borrower; (iv) fourth, to

the payment of interest due on the Notes; (v) fifth, to the payment of

principal outstanding on the Notes; and (vi) sixth, to the payment of any other

amounts owing to the Administrative Agent, the Lead Arranger and the Lenders

under any Loan Document or other document or agreement entered into in

connection with the transactions contemplated thereby.




 




10.           THE AGENT.




 




10.1         Appointment.




 




Each Lender

hereby irrevocably designates and appoints FNB as the Administrative Agent of

such Lender under the Loan Documents and each such Lender hereby irrevocably

authorizes FNB, as the Administrative Agent for such Lender, to take such

action on its behalf under the provisions of the Loan Documents and to exercise

such powers and perform such duties as are expressly delegated to the

Administrative Agent by the terms of the Loan Documents, together with such

other powers as are reasonably incidental thereto.  Notwithstanding any provision to the contrary elsewhere in any

Loan Document, the Administrative Agent shall not have any duties or

responsibilities, except those expressly set forth therein, or any fiduciary or

trustee relationship with any Lender, and no implied covenants, functions,

responsibilities, duties, obligations or liabilities shall be read into the

Loan Documents or otherwise exist against the Administrative Agent.




 




10.2         Delegation of Duties.




 




The

Administrative Agent may execute any of its duties under the Loan Documents by

or through agents or attorneys–in–fact and shall be entitled to

rely upon the advice of counsel concerning all matters pertaining to such

duties.




 




10.3         Exculpatory Provisions.




 




Neither the

Administrative Agent nor any of its officers, directors, employees, agents,

attorneys–in–fact or affiliates shall be (i) liable for any action

lawfully taken or omitted to be taken by it or such Person under or in

connection with the Loan Documents (except for its own gross negligence or

willful misconduct), or (ii) responsible in any manner to any of the Credit

Parties for any recitals, statements, representations or warranties made by the

Borrower or any officer thereof contained in the Loan Documents or in any

certificate, report, statement or other document referred to or provided for

in, or received by the Administrative Agent under or in connection with, the

Loan Documents or for the value, validity, effectiveness, genuineness,

enforceability or sufficiency of any of the Loan Documents or for any failure

of the Borrower or any other Person to perform its obligations thereunder.  The Administrative Agent shall not be under

any obligation to any Credit Party to ascertain or to inquire as to the

observance or performance of any of the agreements contained in, or conditions

of, the Loan Documents, or to inspect the properties, books or records of the

Borrower or any of its Subsidiaries. 

The Administrative Agent shall not be under any liability or

responsibility whatsoever, as Administrative Agent, to the Borrower or any

other Person as a consequence of any failure or




 




62





























 




delay in performance, or any

breach, by any Credit Party of any of its obligations under any of the Loan

Documents.




 




10.4         Reliance by Administrative Agent.




 




The

Administrative Agent shall be entitled to rely, and shall be fully protected in

relying, upon any writing, resolution, notice, consent, certificate, affidavit,

opinion, letter, cablegram, telegram, telecopy, telex or teletype message,

statement, order or other document or conversation reasonably believed by it to

be genuine and correct and to have been signed, sent or made by the proper

Person or Persons and upon advice and statements of legal counsel (including,

without limitation, counsel to the Borrower), independent accountants and other

experts selected by the Administrative Agent. 

The Administrative Agent may treat each Lender, or the Person designated

in the last notice filed with it under this Section, as the holder of all of

the interests of such Lender in its Loans and in its Note until written notice

of transfer, signed by such Lender (or the Person designated in the last notice

filed with the Administrative Agent) and by the Person designated in such

written notice of transfer, in form and substance satisfactory to the

Administrative Agent, shall have been filed with the Administrative Agent.  The Administrative Agent shall not be under

any duty to examine or pass upon the validity, effectiveness or genuineness of

the Loan Documents or any instrument, document or communication furnished

pursuant thereto or in connection therewith, and the Administrative Agent shall

be entitled to assume that the same are valid, effective and genuine, have been

signed or sent by the proper parties and are what they purport to be.  The Administrative Agent shall be fully

justified in failing or refusing to take any action under the Loan Documents

unless it shall first receive such advice or concurrence of the Required

Lenders as it deems appropriate or as set forth herein.  The Administrative Agent shall in all cases

be fully protected in acting, or in refraining from acting, under the Loan

Documents in accordance with a request or direction of the Required Lenders, and

such request or direction and any action taken or failure to act pursuant

thereto shall be binding upon all the Lenders and all future holders of the

Notes.




 




10.5         Notice of Default.




 




The

Administrative Agent shall not be deemed to have knowledge or notice of the

occurrence of any Default or Event of Default, except with respect to defaults

in the payment of principal, interest and fees required to be paid to the

Administrative Agent for the account of the Lenders, unless the Administrative

Agent has received written notice thereof from a Lender or the Borrower.  In the event that the Administrative Agent

receives such a notice, the Administrative Agent shall promptly give notice

thereof to the Lenders.  The

Administrative Agent shall take such action with respect to such Default or

Event of Default as shall be reasonably directed by the Required Lenders,

provided, however, that unless and until the Administrative Agent shall have

received such directions, the Administrative Agent may (but shall not be obligated

to) take such action, or refrain from taking such action, with respect to such

Default or Event of Default as it shall deem to be in the best interests of the

Lenders.




 




10.6         Non-Reliance

on Administrative Agent and Other Lenders.




 




Each Lender

expressly acknowledges that neither the Administrative Agent nor any of its

officers, directors, employees, agents, attorneys-in-fact or affiliates has

made any representations




 




63





























 




or warranties to it and that no

act by the Administrative Agent hereinafter, including any review of the

affairs of the Borrower or any of its Subsidiaries, shall be deemed to

constitute any representation or warranty by the Administrative Agent to any

Lender.  Each Lender represents to the

Administrative Agent that it has, independently and without reliance upon the

Administrative Agent or any other Lender, and based on such documents and

information as it has deemed appropriate, made its own evaluation of and

investigation into the business, operations, Property, financial and other

condition and creditworthiness of the Borrower and its Subsidiaries and made

its own decision to enter into this Agreement. 

Each Lender also represents that it will, independently and without

reliance upon the 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 credit analysis, evaluations and decisions in taking or not taking

action under any Loan Document, and to make such investigation as it deems

necessary to inform itself as to the business, operations, Property, financial

and other condition and creditworthiness of the Borrower and its

Subsidiaries.  Except for notices,

reports and other documents expressly required to be furnished to the Lenders

by the Administrative Agent hereunder, the Administrative Agent shall not have

any duty or responsibility to provide any Lender with any credit or other

information concerning the business, operations, Property, financial and other

condition or creditworthiness of the Borrower and its Subsidiaries which may

come into the possession of the Administrative Agent or any of its officers,

directors, employees, agents, attorneys-in-fact or affiliates.




 




10.7         Indemnification.




 




Each Lender

agrees to indemnify and reimburse the Administrative Agent in its capacity as

such (to the extent not promptly reimbursed by the Borrower and without

limiting the obligation of the Borrower to do so), pro rata according to its

Commitment, from and against any and all liabilities, obligations, claims,

losses, damages, penalties, actions, judgments, suits, costs, expenses or

disbursements of any kind whatsoever including, without limitation, any amounts

paid to the Lenders (through the Administrative Agent) by the Borrower, any

Subsidiary Guarantor pursuant to the terms of the Loan Documents, that are

subsequently rescinded or avoided, or must otherwise be restored or returned)

which may at any time (including, without limitation, at any time following the

payment of the Notes) be imposed on, incurred by or asserted against the

Administrative Agent in any way relating to or arising out of the Loan

Documents or any other documents contemplated by or referred to therein or the

transactions contemplated thereby or any action taken or omitted to be taken by

the Administrative Agent under or in connection with any of the foregoing;

provided, however, that no Lender shall be liable for the payment of any

portion of such liabilities, obligations, claims, losses, damages, penalties,

actions, judgments, suits, costs, expenses or disbursements to the extent

resulting solely from the gross negligence or willful misconduct of the

Administrative Agent.  The agreements in

this Section shall survive the payment of all amounts payable under the Loan

Documents.




 




10.8         Administrative Agent in Its

Individual Capacity.




 




FNB and its

affiliates may make loans to, accept deposits from, issue letters of credit for

the account of, and generally engage in any kind of business with, the Borrower

and its Subsidiaries as though FNB was not Administrative Agent hereunder.  With respect to the




 




64





























 




Commitment made or renewed by

FNB and the Note issued to FNB, FNB shall have the same rights and powers under

the Loan Documents as any Lender and may exercise the same as though it was not

the Administrative Agent, and the terms “Lender” and “Lenders” shall in each

case include FNB.




 




10.9         Successor Administrative Agent.




 




If at any time

the Administrative Agent deems it advisable, in its sole discretion, it may

submit to each of the Lenders a written notice of its resignation as

Administrative Agent under this Agreement, such resignation to be effective

upon the earlier of (i) the written acceptance of the duties of the

Administrative Agent under the Loan Documents by a successor Administrative

Agent and (ii) on the 60th day after the date of such notice.  Upon any such notice of resignation, the

Required Lenders shall have the right to appoint from among the Lenders a

successor Administrative Agent.  If no

successor Administrative Agent shall have been so appointed by the Required

Lenders and accepted such appointment in writing within 45 days after the

retiring Administrative Agent’s giving of notice of resignation, then the

retiring Administrative Agent shall, in consultation with the Borrower, appoint

a successor Administrative Agent on behalf of the Lenders prior to the end of

the 60th day from such notice from among any of the Lenders who shall have at

such time agreed to act as the successor Administrative Agent and shall have at

such time a Commitment of at least $10,000,000 (an “Approved Successor”).  If no Lender has a Commitment of at least

$10,000,000 (or no Lender whose Commitment is at least $10,000,000 shall agree

to accept such appointment), then the retiring Administrative Agent shall, in

consultation with the Borrower (unless an Event of Default has occurred and is

continuing), appoint any other Lender or any other commercial bank organized

under the laws of the United States of America or any State thereof and having

a combined capital and surplus of at least $100,000,000 as a successor

Administrative Agent. Any appointment of a successor Administrative Agent shall

be subject to the approval of the Borrower, which approval shall not be

unreasonably withheld or delayed, and shall be given in any event prior to the

end of the 60th day from the date of the retiring Administrative Agent’s notice

of resignation, provided that during any period in which there exists and is

continuing an Event of Default, no approval from the Borrower to the

appointment of an Approved Successor shall be required. Upon the acceptance of

an appointment as Administrative Agent hereunder by a successor Administrative

Agent and any required approval of such successor Administrative Agent by the

Borrower in accordance with the terms of this Section, such successor

Administrative Agent shall thereupon succeed to and become vested with all the

rights, powers, privileges and duties of the retiring Administrative Agent, and

the retiring Administrative Agent’s rights, powers, privileges and duties as

Administrative Agent under the Loan Documents shall be terminated.  The Borrower and the Lenders shall execute

such documents as shall be necessary to effect such appointment.  After any retiring Administrative Agent’s

resignation hereunder as Administrative Agent, the provisions of the Loan

Documents shall inure to its benefit as to any actions taken or omitted to be

taken by it while it was Administrative Agent under the Loan Documents.  The Supermajority Lenders may remove the

Administrative Agent from its capacity as administrative agent in the event of

the Administrative Agent’s willful misconduct or gross negligence.  The Commitment of the Lender then acting as

Administrative Agent, if the Administrative Agent is being removed due to

willful misconduct or gross negligence pursuant to this Section 10.9, shall be

disregarded in determining the Supermajority Lenders.  Such removal shall be in accordance with the Intercreditor

Agreement of even date herewith among the Administrative Agent and the Lenders




 




65





























 




which provides, among other

things, that any successor Administrative Agent must satisfy the conditions for

a successor Administrative Agent contained above in this Section 10.9.




 




11.           OTHER PROVISIONS.




 




11.1         Amendments and Waivers.




 




With the

written consent of the Required Lenders, the Administrative Agent and the

Borrower may, from time to time, enter into written amendments, supplements or

modifications of the Loan Documents and, with the consent of the Required

Lenders, the Administrative Agent on behalf of the Lenders may execute and

deliver to any such parties a written instrument waiving or a consent to a

departure from, on such terms and conditions as the Administrative Agent may

specify in such instrument, any of the requirements of the Loan Documents or

any Default or Event of Default and its consequences; provided, however, that

no such amendment, supplement, modification, waiver or consent shall, without

the consent of all of the Lenders: 

(i) increase the Commitment of any Lender or the Total Commitment

Amount; (ii) extend the Maturity Date; (iii) decrease the rate, or extend the

time of payment, of interest of, or change or forgive the principal amount of,

or change the requirement that payments and prepayments of principal on, and

payments of interest on, the Notes be made pro rata to the Lenders on the basis

of the outstanding principal amount of the Loans, (iv) amend the definitions of

“Required Lender” or “Supermajority Lenders”, (v) amend the definition of

“Applicable Margin”, (vi) release any Subsidiary Guarantor from its obligations

under a Guaranty except as provided in Section 8.2, or (vii) change the

provisions of Section 2.9, 2.10, 2.11, 2.12, 2.13, 2.14, 2.15, 2.16, 3.1 or

11.1; and provided further that no such amendment, supplement, modification,

waiver or consent shall amend, modify, waive or consent to a departure from any

provision of Section 10 or otherwise change any of the rights or obligations of

the Administrative Agent under the Loan Documents without the written consent

of the Administrative Agent.  The

Administrative Agent shall cause a copy of each written request for such an

amendment, supplement or modification delivered by the Borrower to it to be

delivered to each Lender.  Any such

amendment, supplement, modification, waiver or consent shall apply equally to

each of the Lenders and shall be binding upon the parties to the applicable

agreement, the Lenders, the Administrative Agent and all future holders of the

Notes.  In the case of any waiver, the

parties to the applicable agreement, the Lenders and the Administrative Agent

shall be restored to their former position and rights under the Loan Documents,

and any Default or Event of Default waived shall not extend to any subsequent

or other Default or Event of Default, or impair any right consequent thereon.  The Administrative Agent and the Lenders

acknowledge and agree that certain rights among the Administrative Agent and

the Lenders, including, without limitation, deemed approval rights with respect

to waivers and amendments, are governed by and set forth in that certain

Intercreditor Agreement dated as of March 1, 2002 among the Lenders and the

Administrative Agent.




 




11.2         Notices.




 




All notices,

requests and demands to or upon the respective parties hereto to be effective

shall be in writing and, unless otherwise expressly provided herein, shall be

deemed to have been duly given or made when delivered by hand, or if sent by

certified mail (return receipt requested), when the return receipt is signed on

behalf of the party to whom such notice is given,




 




66





























 




or in the case of telecopier

notice, when sent with a confirmation received, or if sent by overnight

nationwide commercial courier, the Business Day following the date such notice

is deposited with said courier, and in any case addressed as follows in the

case of the Borrower or the Administrative Agent, and at the Domestic Lending

Office in the case of each Lender, or to such other addresses as to which the

Administrative Agent may be hereafter notified by the respective parties hereto

or any future holders of the Notes:




 




The Borrower:




 




New Plan Excel

Realty Trust, Inc.


1120 Avenue of the Americas; 12th Floor


New York, New York 10036


Attention:              John B. Roche,


Chief Financial Officer


Telephone:            (212) 869–3000


Telecopy:              (212) 869–3989




 




with a copy

to:




 




New Plan Excel

Realty Trust, Inc.


1120 Avenue of the Americas


New York, New York 10036


Attention:              Steven F. Siegel,

Esq., General Counsel


Telephone:            (212) 869–3000


Telecopy:              (212) 869-7460




 




The

Administrative Agent:




 




Fleet National

Bank


100 Federal Street


Boston, Massachusetts 02110


Attention:              Real Estate

Division




 




with a copy to:




 




Fleet National Bank




115 Perimeter Center Place, N.E.


Suite 500


Atlanta, Georgia 30346


Attention:              William Lamb, Vice

President


Telephone:            (770) 390-6547


Telecopy:              (770) 390-8434




 




except that

any notice, request or demand by the Borrower to or upon the Administrative

Agent or the Lenders pursuant to Section 2.8 shall not be effective until

received.  Any party to a Loan Document

may rely on signatures of the parties thereto which are transmitted by

telecopier or other electronic means as fully as if originally signed.




 




67





























 




11.3         No Waiver; Cumulative Remedies.




 




No failure to

exercise and no delay in exercising any right, remedy, power or privilege under

any Loan Document shall operate as a waiver thereof; nor shall any single or

partial exercise of any right, remedy, power or privilege under any Loan

Document preclude any other or further exercise thereof or the exercise of any

other right, remedy, power or privilege. 

The rights, remedies, powers and privileges under the Loan Documents are

cumulative and not exclusive of any rights, remedies, powers and privileges

provided by law.




 




11.4         Survival of Representations and

Warranties.




 




All

representations and warranties made under the Loan Documents and in any

document, certificate or statement delivered pursuant hereto or in connection

therewith shall survive the execution and delivery of the Loan Documents.  After the termination of this Agreement in

accordance with its terms, without any extension thereof, the payment in full

of all obligations of the Borrower under the Loan Documents and the expiration

of any obligations of the Borrower hereunder which survive the termination of this

Agreement, the Borrower shall have no liability to the Lenders under such

representations and warranties, except that the foregoing shall not apply with

respect to any claim, action or proceeding made or brought under any such

representations or warranties prior to such termination or payment.




 




11.5         Payment of Expenses and Taxes.




 




The Borrower

agrees, promptly upon presentation of a statement or invoice therefor, and

whether any Loan is made (i) to pay or reimburse FNB, Administrative Agent and

Lead Arranger for all of their reasonable out–of–pocket costs and

expenses reasonably incurred in connection with the development, preparation,

negotiation and execution of, the Loan Documents, the syndication of the loan

transaction evidenced by this Agreement (whether or not such syndication is

completed) and any amendment, supplement or modification hereto (whether or not

executed), any documents prepared in connection therewith and the consummation

of the transactions contemplated thereby, including, without limitation, the

reasonable fees and disbursements of Special Counsel, (ii) to pay or reimburse

each Credit Party for all of its respective reasonable costs and expenses,

including, without limitation, reasonable fees and disbursements of counsel,

reasonably incurred in connection with (x) any Default or Event of Default and

any enforcement or collection proceedings resulting therefrom (including,

without limitation, any reasonable costs incurred after the entry of judgment

in an attempt to collect money due in the judgment) or in connection with the

negotiation of any restructuring or “work–out” (whether consummated or

not) of the obligations of the Borrower under any of the Loan Documents and (y)

the enforcement of this Section, (iii) to pay, indemnify, and hold each Credit

Party harmless from and against, any and all recording and filing fees and any

and all liabilities with respect to, or resulting from any delay in paying,

stamp, excise and other similar taxes, if any, which may be payable or

determined to be payable in connection with the execution and delivery of, or

consummation of any of the transactions contemplated by, or any amendment,

supplement or modification of, or any waiver or consent under or in respect of,

the Loan Documents and any such other documents, and (iv) to pay, indemnify and

hold each Credit Party and each of their respective officers, directors,

employees, affiliates, agents, controlling persons and attorneys (as used in

this Section, each an “indemnified person”) harmless from and




 




68





























 




against any and all other

liabilities, obligations, claims, losses, damages, penalties, actions,

judgments, suits, costs, expenses or disbursements of any kind or nature

whatsoever (including, without limitation, reasonable counsel fees and

disbursements) with respect to any claim, investigation or proceeding from any

third party relating to this Agreement or the Loan Documents, including the

enforcement and performance of the Loan Documents and the use of the proceeds

of the Loans (all the foregoing, collectively, the “indemnified liabilities”),

whether or not any such indemnified person is a party to this Agreement or the

Loan Documents, and to reimburse each indemnified person for all reasonable

legal and other expenses incurred in connection with investigating or defending

any indemnified liabilities, and, if and to the extent that the foregoing

indemnity may be unenforceable for any reason, the Borrower agrees to make the

maximum payment permitted or not prohibited under applicable law; provided,

however, that the Borrower shall have no obligation hereunder to pay

indemnified liabilities to any Credit Party arising from (A) the gross

negligence or willful misconduct of such Credit Party or (B) disputes solely

between the Credit Parties and which are not related to any act or failure to

act on the part of the Borrower or the failure of the Borrower to perform any

of its obligations under this Agreement or the Loan Documents.




 




Notwithstanding

the foregoing, the fees and expenses referred to in clause (iv) of the

preceding paragraph shall not be payable by the Borrower if (x) any such

enforcement action brought by such Credit Party is dismissed, with prejudice,

on the pleadings or pursuant to a motion made by the Borrower for summary

judgment, and (y) if such Credit Party appeals such dismissal, such dismissal

is affirmed and the time for any further appeals has expired.  The obligations of the Borrower under this

Section shall survive the termination of this Agreement and the Commitments and

the payment of the Notes and all other amounts payable under the Loan

Documents.




 




11.6         Lending Offices.




 




Each Lender

shall have the right at any time and from time to time to transfer its Loans to

a different office, provided that such Lender shall promptly notify the

Administrative Agent and the Borrower of any such change of office.  Such office shall thereupon become such

Lender’s Domestic Lending Office or LIBOR Lending Office, as the case may be;

provided, however, that no such Lender shall be entitled to receive any greater

amount under Section 2.13, 2.14 or 2.16 as a result of a transfer of any such

Loans to a different office of such Lender than it would be entitled to

immediately prior thereto unless such claim would have arisen even if such

transfer had not occurred.




 




11.7         Successors and Assigns.




 




(a)           The Loan Documents shall be binding

upon and inure to the benefit of the Borrower, the Lenders, the Administrative

Agent, all future holders of the Notes and their respective successors and

assigns, except that the Borrower may not assign, delegate or transfer any of

its rights or obligations under the Loan Documents without the prior written

consent of the Administrative Agent and all of the Lenders.




 




(b)           Each Lender shall have the right at

any time, upon written notice to the Administrative Agent of its intent to do

so, to sell, assign, transfer or negotiate all or any part of




 




69





























 




such Lender’s rights and/or

obligations under the Loan Documents to one or more of its Affiliates, to one

or more of the other Lenders (or to Affiliates of such other Lenders) or, with

the prior written consent of the Borrower, and the Administrative Agent (which

consent, from each of them, shall not be unreasonably withheld or delayed and

shall not be required from the Borrower upon the occurrence and during the

continuance of an Event of Default), to sell, assign, transfer or negotiate all

or any part of such Lender’s rights and obligations under the Loan Documents to

any other bank, insurance company, pension fund, mutual fund or other financial

institution, provided that (a) any such bank, insurance company, pension

fund, mutual fund or other financial institution shall have a net worth as of the date of such sale, assignment,

transfer or negotiation of not less than $500,000,000, unless otherwise

approved by the Administrative Agent, (b) unless otherwise approved by the

Administrative Agent and the Borrower (which consent from Borrower shall not be

unreasonably withheld or delayed and shall not be required from Borrower upon

the occurrence and during the continuance of an Event of Default), such

assignee shall acquire an interest in the Loans of not less than $5,000,000

unless such assignee is acquiring all of the assigning Lender’s Commitment,

(c) such sale, assignment, transfer or registration is subject to the

terms of the intercreditor agreement dated of even date herewith among the

Lenders and the Administrative Agent, (d) in no event shall any voting,

consent or approval rights of a Lender be assigned to any Person controlling,

controlled by or under common control with, or which is not otherwise free from

influence or control by, the Borrower or any Subsidiary Guarantor or any

Affiliate thereof, which rights shall instead be allocated pro rata among the

other remaining Lenders, and (e) there shall be paid to the Administrative

Agent by the assigning Lender a fee (the “Assignment Fee”) of $3,500.  For each assignment, the parties to such assignment

shall execute and deliver to the Administrative Agent for its acceptance and

recording an Assignment and Assumption Agreement.  Upon such execution, delivery, acceptance and recording by the

Administrative Agent, from and after the effective date specified in such

Assignment and Assumption Agreement, the assignee thereunder shall be a party

hereto and, to the extent provided in such Assignment and Assumption Agreement,

the assignor Lender thereunder shall be released from its obligations under the

Loan Documents.  The Borrower agrees

upon written request of the Administrative Agent and at the Borrower’s expense

to execute and deliver (1) to such assignee, a Note, dated the effective date

of such Assignment and Assumption Agreement, in an aggregate principal amount

equal to the Loans assigned to, and Commitments assumed by, such assignee and

(2) to such assignor Lender, a Note, dated the effective date of such

Assignment and Assumption Agreement, in an aggregate principal amount equal to

the balance of such assignor Lender’s Loans and Commitment, if any, and each

assignor Lender shall cancel and return to the Borrower its existing Note.  Upon any such sale, assignment or other

transfer, the Commitment Amounts set forth in Exhibit B shall be

adjusted accordingly by the Administrative Agent and a new Exhibit B

shall be distributed by the Administrative Agent to the Borrower and each

Lender.




 




(c)           Each Lender may grant participations

in all or any part of its Loans, its Note and its Commitment to one or more

banks, insurance companies, financial institutions, pension funds or mutual

funds, provided that (i) such Lender’s obligations under the Loan Documents

shall remain unchanged, (ii) such Lender shall remain solely responsible to the

other parties to the Loan Documents for the performance of such obligations,

(iii) the Borrower, the Administrative Agent and the other Lenders shall

continue to deal solely and directly with such Lender in connection with such

Lender’s rights and obligations under the Loan Documents, (iv) no sub–participations

shall be permitted and (v) the voting rights of any holder of any




 




70





























 




participation shall be limited

to decisions that only do any of the following:  (A) subject the participant to any additional obligation, (B)

reduce the principal of, or interest on the Notes or any fees or other amounts

payable hereunder, and (C) postpone any date fixed for the payment of principal

of, or interest on the Notes or any fees or other amounts payable

hereunder.  The Borrower acknowledges

and agrees that any such participant shall for purposes of Sections 2.10, 2.11,

2.12, 2.13, 2.14, 2.15 and 2.16 be deemed to be a “Lender”; provided, however,

the Borrower shall not, at any time, be obligated to pay any participant in any

interest of any Lender hereunder any sum in excess of the sum which the

Borrower would have been obligated to pay to such Lender in respect of such

interest had such Lender not sold such participation.




 




(d)           If any (i) assignment made pursuant

to paragraph (b) above or (ii) any participation granted pursuant to paragraph

(c) above shall be made to any Person that is organized under the laws of any

jurisdiction other than the United States of America or any State thereof, such

Person shall furnish such certificates, documents or other evidence to the

Borrower and the Administrative Agent, in the case of clause (i) and to the

Borrower and the Lender which sold such participation in the case of clause

(ii), as shall be required by Section 2.11(b) to evidence such Person’s

exemption from U.S. withholding taxes with respect to any payments under or

pursuant to the Loan Documents because such Person is eligible for the benefits

of a tax treaty which provides for a zero percent rate of tax on any payments

under the Loan Documents or because any such payments to such Person are

effectively connected with the conduct by such Person of a trade or business in

the United States.




 




(e)           No Lender shall, as between and among

the Borrower, the Administrative Agent and such Lender, be relieved of any of

its obligations under the Loan Documents as a result of any sale, assignment,

transfer or negotiation of, or granting of participations in, all or any part

of its Loans, its Commitment or its Note, except that a Lender shall be

relieved of its obligations to the extent of any such sale, assignment,

transfer, or negotiation of all or any part of its Loans, its Commitment or its

Note pursuant to paragraph (b) above.




 




(f)            Notwithstanding anything to the

contrary contained in this Section, any Lender may at any time or from time to

time assign all or any portion of its rights under the Loan Documents to a

Federal Reserve Bank, provided that any such assignment shall not release such

assignor from its obligations thereunder.




 




11.8         [Intentionally Omitted].




 




11.9         Counterparts.




 




Each Loan

Document (other than the Notes) may be executed by one or more of the parties

thereto on any number of separate counterparts and all of said counterparts

taken together shall be deemed to constitute one and the same document.  It shall not be necessary in making proof of

any Loan Document to produce or account for more than one counterpart signed by

the party to be charged.  A telecopied

counterpart of any Loan Document or to any document evidencing, and of any an

amendment, modification, consent or waiver to or of any Loan Document shall be

deemed to be an originally executed counterpart.  A set of the copies of the Loan Documents signed by all the

parties thereto shall be deposited with each of the Borrower and the

Administrative Agent.  Any party to a

Loan Document may rely upon the signatures of




 




71





























 




any other party thereto which

are transmitted by telecopier or other electronic means to the same extent as

if originally signed.




 




11.10       Adjustments; Set–off.




 




(a)           If any Lender (a “Benefited Lender”),

shall at any time receive any payment of all or any part of its Loans or

interest thereon, or receive any collateral in respect thereof (whether

voluntarily or involuntarily, by set–off, pursuant to events or

proceedings of the nature referred to in Section 9.1(h) or (i), or otherwise)

in a greater proportion than any such payment to and collateral received by any

other Lender in respect of such other Lender’s Loans or interest thereon, such

Benefited Lender shall purchase for cash from each of the other Lenders such

portion of each such other Lender’s Loans and shall provide each of such other

Lenders with the benefits of any such collateral, or the proceeds thereof, as

shall be necessary to cause such Benefited Lender to share the excess payment

or benefits of such collateral or proceeds ratably with each of the Lenders,

provided, however, that if all or any portion of such excess payment or

benefits is thereafter recovered from such Benefited Lender, such purchase

shall be rescinded, and the purchase price and benefits returned, to the extent

of such recovery, but without interest. 

The Borrower agrees that each Lender so purchasing a portion of another

Lender’s Loans may exercise all rights of payment (including, without

limitation, rights of set–off, to the extent not prohibited by law) with

respect to such portion as fully as if such Lender were the direct holder of

such portion.




 




(b)           In addition to any rights and

remedies of the Lenders provided by law, upon the occurrence of an Event of

Default and the acceleration of the obligations owing in connection with the

Loan Documents, or at any time upon the occurrence and during the continuance

of an Event of Default under Section 9.1(a) or (b), each Lender shall have the

right, without prior notice to the Borrower, any such notice being expressly

waived by the Borrower to the extent not prohibited by applicable law, to set–off

and apply against any indebtedness, whether matured or unmatured, of the

Borrower to such Lender, any amount owing from such Lender to the Borrower, at,

or at any time after, the happening of any of the above–mentioned

events.  To the extent not prohibited by

applicable law, the aforesaid right of set–off may be exercised by such

Lender against the Borrower or against any trustee in bankruptcy, custodian,

debtor in possession, assignee for the benefit of creditors, receiver, or

execution, judgment or attachment creditor of the Borrower, or against anyone

else claiming through or against the Borrower or such trustee in bankruptcy,

custodian, debtor in possession, assignee for the benefit of creditors,

receivers, or execution, judgment or attachment creditor, notwithstanding the

fact that such right of set–off shall not have been exercised by such

Lender prior to the making, filing or issuance, or service upon such Lender of,

or of notice of, any such petition, assignment for the benefit of creditors,

appointment or application for the appointment of a receiver, or issuance of

execution, subpoena, order or warrant. 

Each Lender agrees promptly to notify the Borrower and the

Administrative Agent after any such set–off and application made by such

Lender, provided that the failure to give such notice shall not affect the

validity of such set–off and application.




 




11.11       Lenders’ Representations.




 




Each Lender

represents to the Administrative Agent that, in acquiring its Note, it is

acquiring the same for its own account for the purpose of investment and not

with a view to




 




72





























 




selling the same in connection

with any distribution thereof, provided that the disposition of each Lender’s

own Property shall at all times be and remain within its control.




 




11.12       Indemnity.




 




The Borrower

agrees to indemnify and hold harmless each Credit Party and its affiliates,

directors, officers, employees, affiliates, agents, controlling persons and

attorneys (each an “Indemnified Person”) from and against any loss,

reasonable cost, liability, damage or reasonable expense (including the

reasonable fees and disbursements of counsel of such Indemnified Person,

including all local counsel hired by any such counsel) incurred by such

Indemnified Person in investigating, preparing for, defending against, or

providing evidence, producing documents or taking any other action in respect

of, any commenced or threatened litigation, administrative proceeding or

investigation under any federal securities or tax laws or any other statute of

any jurisdiction, or any regulation, or at common law or otherwise, which is

alleged to arise out of or is based upon: 

(i) any untrue statement of any material fact by the Borrower in any document

or schedule executed or filed with any Governmental Authority by or on behalf

of the Borrower; (ii) any omission to state any material fact required to be

stated in such document or schedule, or necessary to make the statements made

therein, in light of the circumstances under which made, not misleading; (iii)

any acts, practices or omissions of the Borrower or its agents relating to the

use of the proceeds of any or all borrowings made by the Borrower which are

alleged to be in violation of Section 2.15, or in violation of any federal securities

or tax laws or of any other statute, regulation or other law of any

jurisdiction applicable thereto, whether or not such Indemnified Person is a

party thereto; or (iv) the Acquisitions. The indemnity set forth herein shall

be in addition to any other obligations, liabilities or other indemnifications

of the Borrower to each Indemnified Person under the Loan Documents or at

common law or otherwise, and shall survive any termination of the Loan

Documents, the expiration of the Commitments and the payment of all

indebtedness of the Borrower under the Loan Documents, provided that the

Borrower shall have no obligation under this Section to an Indemnified Person

with respect to any of the foregoing to the extent found in a final judgment of

a court having jurisdiction to have resulted primarily out of the gross

negligence or willful misconduct of such Indemnified Person or arising solely

from claims between one such Indemnified Person and another such Indemnified

Person.




 




11.13       Governing

Law.




 




The Loan Documents

and the rights and obligations of the parties thereunder shall be governed by,

and construed and interpreted in accordance with, the internal laws of the

State of New York, without regard to principles of conflict of laws.




 




11.14       Headings Descriptive.




 




Section

headings have been inserted in the Loan Documents for convenience only and

shall not be construed to be a part thereof.




 




11.15       Severability.




 




Every

provision of the Loan Documents is intended to be severable, and if any term or

provision thereof shall be invalid, illegal or unenforceable for any reason,

the validity, legality




 




73





























 




and enforceability of the

remaining provisions thereof shall not be affected or impaired thereby, and any

invalidity, illegality or unenforceability in any jurisdiction shall not affect

the validity, legality or enforceability of any such term or provision in any

other jurisdiction.




 




11.16       Integration.




 




All exhibits

to a Loan Document shall be deemed to be a part thereof and shall be deemed a

proper disclosure in all relevant provisions of the Loan Documents.  The Loan Documents embody the entire

agreement and understanding among the Borrower, the Administrative Agent and

the Lenders with respect to the subject matter thereof and supersede all prior

agreements and understandings among the Borrower, the Administrative Agent and

the Lenders with respect to the subject matter thereof.




 




11.17       Consent to Jurisdiction.




 




The Borrower

and each of the Credit Parties hereby irrevocably submit to the jurisdiction of

any New York State or Federal court sitting in the City of New York over any

suit, action or proceeding arising out of or relating to the Loan

Documents.  The Borrower and each of the

Credit Parties hereby irrevocably waive, to the fullest extent permitted or not

prohibited by law, any objection which any of them may now or hereafter have to

the laying of the venue of any such suit, action or proceeding brought in such

a court and any claim that any such suit, action or proceeding brought in such

a court has been brought in an inconvenient forum.  The parties intend that Section 5-1402 of the New York General

Obligations Law shall apply to this Section 11.17.




 




11.18       Service of Process.




 




The Borrower

hereby agrees that process may be served against it in any suit, action or

proceeding referred to in Section 11.17 by sending the same by first class

mail, return receipt requested or by overnight courier service, to the address

of the Borrower set forth in Section 11.2 or in the applicable Loan Document

executed by the Borrower.  The Borrower

hereby agrees that any such service (i) shall be deemed in every respect

effective service of process upon it in any such suit, action, or proceeding, and

(ii) shall to the fullest extent enforceable by law, be taken and held to be

valid personal service upon and personal delivery to it.




 




11.19       No Limitation on Service or Suit.




 




Nothing in the

Loan Documents or any modification, waiver, consent or amendment thereto shall

affect the right of the Administrative Agent or any Lender to serve process in

any manner permitted by law or limit the right of the Administrative Agent or

any Lender to bring proceedings against the Borrower in the courts of any

jurisdiction or jurisdictions in which the Borrower may be served.




 




11.20       WAIVER OF TRIAL BY JURY.




 




THE

ADMINISTRATIVE AGENT, THE LENDERS AND THE BORROWER HEREBY KNOWINGLY,

VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO A TRIAL

BY JURY IN RESPECT OF ANY LITIGATION




 




74





























 




ARISING OUT OF, UNDER OR IN

CONNECTION WITH THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED

THEREIN.  FURTHER, THE BORROWER HEREBY

CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF THE ADMINISTRATIVE AGENT, THE

LENDERS, OR COUNSEL TO THE ADMINISTRATIVE AGENT OR THE LENDERS, HAS

REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE ADMINISTRATIVE AGENT OR THE

LENDERS WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER

OF RIGHT TO JURY TRIAL PROVISION.  THE

BORROWER ACKNOWLEDGES THAT THE ADMINISTRATIVE AGENT AND THE LENDERS HAVE BEEN

INDUCED TO ENTER INTO THIS AGREEMENT BY, INTER ALIA, THE PROVISIONS OF THIS

SECTION.




 




11.21       TERMINATION.




 




After the

termination of this Agreement in accordance with its terms, without any

extension thereof, and the payment in full of all obligations of the Borrower

under the Loan Documents (including without limitation, all principal,

interest, Facility Fees and other amounts payable hereunder and under the

Notes), the obligations of the Borrower hereunder (other than those which are

stated herein to survive any termination of this Agreement) shall terminate,

except that the foregoing shall not apply with respect to any claim, action or

proceeding made or brought under any other provision of the Loan Documents

prior to such termination or payment. 

At the request of the Borrower, each Lender whose obligations under the

Notes have been fully paid shall promptly return to the Borrower its Note marked

“paid” or shall deliver other evidence that such Lender has received full

payment of such obligations.




 




11.22       REPLACEMENT NOTES.




 




Upon receipt

of evidence reasonably satisfactory to the Borrower of the loss, theft,

destruction or mutilation of any Note, and in the case of any such loss, theft

or destruction, upon delivery by the relevant Lender of an indemnity agreement

reasonably satisfactory to the Borrower or, in the case of any such mutilation,

upon surrender and cancellation of the applicable Note, the Borrower will

execute and deliver, in lieu thereof, a replacement Note, identical in form and

substance to the applicable Note and dated as of the date of the applicable

Note and upon such execution and delivery all references in the Loan Documents

to such Note shall be deemed to refer to such replacement Note.




 




11.23       INTERCREDITOR AGREEMENT.




 




The Lenders

and Administrative Agent hereby acknowledge and agree that all references to

the “Credit Agreement” and the “Loan” set forth in that certain Intercreditor

Agreement dated as of March 1, 2002, among the Lenders executed in connection

with the Original Loan Agreement shall be deemed references to the Agreement

and the Loan (as such terms are defined herein), respectively.




 




 




[SIGNATURES COMMENCE ON FOLLOWING PAGE]




 




75





























 




IN WITNESS

WHEREOF, the parties hereto have caused this Agreement to be duly executed and

delivered by their proper and duly authorized officers as of the day and year

first above written.




 




 




	

   


  	

  NEW PLAN

  EXCEL REALTY TRUST, INC.


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  By:


  	

     /s/

  John B. Roche


  	

   


  
	

   


  	

   


  	

     John

  B. Roche,


  
	

   


  	

   


  	

     Chief

  Financial Officer


  





 




76





























 




	

   


  	

  FLEET

  NATIONAL BANK, a national banking


  association, individually and as Administrative


  Agent


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  By:


  	

     /s/

  Bill Lamb


  	

   


  
	

   


  	

   


  	

     William

  Lamb


  
	

   


  	

   


  	

     Vice

  President


  





 




 




Fleet National Bank


115 Perimeter Center Place, N.E.


Suite 500


Atlanta, Georgia  30346


Attn:  William Lamb


Facsimile:  770/390-8434




 




and




 




Fleet National Bank


100 Federal Street


Boston, Massachusetts  02110


Attn:  Real Estate Division


Facsimile:  617/434-7108




 




77





























 




 




	

   


  	

  CITICORP

  NORTH AMERICA, INC.


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  By:


  	

     /s/

  Michael Chlopak


  	

   


  
	

   


  	

   


  	

     Michael

  Chlopak


  
	

   


  	

   


  	

     Vice

  President


  





 




 




Citicorp North America, Inc.


390 Greenwich Street


1st Floor


New York, New York 10022


Attn:  Mr. Michael Chlopak


Facsimile:  (212) 723-8380




 




and




 




Citicorp North America, Inc.


2 Penns Way


Suite 200


New Castle, Delaware 19720


Attn:  Ms. Lizanne Bradley


Facsimile:  (302) 894-6120




 




78





























 




	

   


  	

  BANK OF

  AMERICA, N.A.


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  By:


  	

     /s/

  Michael Edwards


  	

   


  
	

   


  	

   


  	

     Michael

  Edwards


  
	

   


  	

   


  	

     Managing

  Director


  





 




 




Bank of America, N.A.


231 South LaSalle St., 12th Floor


Chicago, Illinois 60697


Attn:  Mr. Jeffrey Kahl


Facsimile:  (312) 974-4970




 




79





























 




	

   


  	

  BANK ONE, NA


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  By:


  	

     /s/

  Patricia Leung


  	

   


  
	

   


  	

   


  	

     Patricia

  Leung


  
	

   


  	

   


  	

     Director,

  Capital Markets, Inc.


  





 




 




Bank One, NA


Mail Code IL1-0315


1 Bank One Plaza


14th Floor


Chicago, Illinois 60670


Attn:  Ms. Patricia Leung


Facsimile:  (312) 732-5939




 




80





























 




	

   


  	

  KEYBANK

  NATIONAL ASSOCIATION, a


  national banking association


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  By:


  	

     /s/

  John C. Scott


  	

   


  
	

   


  	

   


  	

     John

  C. Scott


  
	

   


  	

   


  	

     Assistant

  Vice-President


  





 




 




KeyBank National Association


1146 19th Street, NW


Fourth Floor


Washington, DC 20036


Attn:  Mr. John C. Scott


Facsimile:  (202) 452-4925




 




and




 




KeyBank National Association


1146 19th Street, NW


Fourth Floor


Washington, DC 20036


Attn:  Douglas Frazer


Facsimile:  (202) 452-4925




 




81





























 




	

   


  	

  THE BANK OF

  NEW YORK


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  By:


  	

     /s/

  Rick Laudisi


  	

   


  
	

   


  	

   


  	

     Rick

  Laudisi


  
	

   


  	

   


  	

     Vice

  President


  





 




 




The Bank of New York


One Wall Street


New York, New York 10286


Attn:  Mr. Rick Laudisi


Facsimile:  (212) 809-9526




 




82





























 




	

  1.


  	

  DEFINITIONS


  
	

   


  	

  1.1


  	

  Defined

  Terms


  
	

   


  	

  1.2


  	

  Other Definitional Provisions


  
	

  2.


  	

  AMOUNT AND TERMS OF LOANS


  
	

   


  	

  2.1


  	

  Loans


  
	

   


  	

  2.2


  	

  Notes


  
	

   


  	

  2.3


  	

  Procedure for Loan Borrowings


  
	

   


  	

  2.4


  	

  [Intentionally

  Omitted]


  
	

   


  	

  2.5


  	

  [Intentionally Omitted]


  
	

   


  	

  2.6


  	

  Repayment of Loans; Evidence of Debt


  
	

   


  	

  2.7


  	

  Prepayments of the Loans


  
	

   


  	

  2.8


  	

  Conversions


  
	

   


  	

  2.9


  	

  Interest Rate and Payment Dates


  
	

   


  	

  2.10


  	

  Substituted Interest Rate


  
	

   


  	

  2.11


  	

  Taxes; Net Payments


  
	

   


  	

  2.12


  	

  Illegality


  
	

   


  	

  2.13


  	

  Increased

  Costs


  
	

   


  	

  2.14


  	

  Indemnification for Break Funding Losses


  
	

   


  	

  2.15


  	

  Use

  of Proceeds


  
	

   


  	

  2.16


  	

  Capital

  Adequacy


  
	

   


  	

  2.17


  	

  Administrative Agent’s Records


  
	

  3.


  	

  FEES;

  PAYMENTS


  
	

   


  	

  3.1


  	

  Facility Fee


  
	

   


  	

  3.2


  	

  Payments; Application of Payments


  
	

  4.


  	

  REPRESENTATIONS AND WARRANTIES


  
	

   


  	

  4.1


  	

  Existence and Power


  
	

   


  	

  4.2


  	

  Authority


  
	

   


  	

  4.3


  	

  Binding Agreement


  
	

   


  	

  4.4


  	

  Subsidiaries; DownREIT Partnerships


  
	

   


  	

  4.5


  	

  Litigation


  
	

   


  	

  4.6


  	

  Required Consents


  
	

   


  	

  4.7


  	

  No Conflicting Agreements


  





 




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  4.8


  	

  Compliance with Applicable Laws


  
	

   


  	

  4.9


  	

  Taxes


  
	

   


  	

  4.10


  	

  Governmental Regulations


  
	

   


  	

  4.11


  	

  Federal Reserve Regulations; Use of Loan

  Proceeds


  
	

   


  	

  4.12


  	

  Plans; Multiemployer Plans


  
	

   


  	

  4.13


  	

  Financial Statements


  
	

   


  	

  4.14


  	

  Property


  
	

   


  	

  4.15


  	

  Franchises, Intellectual Property, Etc


  
	

   


  	

  4.16


  	

  Environmental Matters


  
	

   


  	

  4.17


  	

  Labor

  Relations


  
	

   


  	

  4.18


  	

  [Intentionally Omitted.]


  
	

   


  	

  4.19


  	

  Solvency


  
	

   


  	

  4.20


  	

  REIT

  Status


  
	

   


  	

  4.21


  	

  List of Unencumbered Assets


  
	

   


  	

  4.22


  	

  [Intentionally Omitted]


  
	

   


  	

  4.23


  	

  Operation of Business


  
	

   


  	

  4.24


  	

  No Misrepresentation


  
	

  5.


  	

  CONDITIONS TO LOANS


  
	

   


  	

  5.1


  	

  Evidence of Action


  
	

   


  	

  5.2


  	

  This

  Agreement


  
	

   


  	

  5.3


  	

  Notes


  
	

   


  	

  5.4


  	

  Guaranty


  
	

   


  	

  5.5


  	

  Litigation


  
	

   


  	

  5.6


  	

  Opinion of Counsel to the Borrower


  
	

   


  	

  5.7


  	

  Fees


  
	

   


  	

  5.8


  	

  Fees and Expenses of Special Counsel


  
	

   


  	

  5.9


  	

  Compliance


  
	

   


  	

  5.10


  	

  Loan

  Closing


  
	

   


  	

  5.11


  	

  Documentation and Proceedings


  
	

   


  	

  5.12


  	

  Required Acts and Conditions


  
	

   


  	

  5.13


  	

  Approval of Special Counsel


  
	

   


  	

  5.14


  	

  Other

  Documents


  





 




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  5.15


  	

  [INTENTIONALLY OMITTED]


  
	

  6.


  	

  [INTENTIONALLY OMITTED]


  
	

  7.


  	

  AFFIRMATIVE COVENANTS


  
	

   


  	

  7.1


  	

  Financial Statements


  
	

   


  	

  7.2


  	

  Certificates; Other Information


  
	

   


  	

  7.3


  	

  Legal

  Existence


  
	

   


  	

  7.4


  	

  Taxes


  
	

   


  	

  7.5


  	

  Insurance


  
	

   


  	

  7.6


  	

  Payment of Indebtedness and Performance of

  Obligations


  
	

   


  	

  7.7


  	

  Maintenance of Property; Environmental

  Investigations


  
	

   


  	

  7.8


  	

  Observance of Legal Requirements


  
	

   


  	

  7.9


  	

  Inspection of Property; Books and Records;

  Discussions


  
	

   


  	

  7.10


  	

  Licenses, Intellectual Property


  
	

   


  	

  7.11


  	

  Additional Guarantors


  
	

   


  	

  7.12


  	

  REIT Status; Operation of Business


  
	

   


  	

  7.13


  	

  More Restrictive Agreements


  
	

  8.


  	

  NEGATIVE COVENANTS


  
	

   


  	

  8.1


  	

  Liens


  
	

   


  	

  8.2


  	

  Merger, Consolidation and Certain

  Dispositions of Property


  
	

   


  	

  8.3


  	

  Investments, Loans, Etc


  
	

   


  	

  8.4


  	

  Business

  Changes


  
	

   


  	

  8.5


  	

  Amendments to Organizational Documents


  
	

   


  	

  8.6


  	

  [Intentionally Omitted.]


  
	

   


  	

  8.7


  	

  Sale and Leaseback


  
	

   


  	

  8.8


  	

  Transactions with Affiliates


  
	

   


  	

  8.9


  	

  Issuance of Additional Capital Stock by

  Subsidiary Guarantors


  
	

   


  	

  8.10


  	

  Hedging Agreements


  
	

   


  	

  8.11


  	

  Restricted Payments


  
	

   


  	

  8.12


  	

  Unencumbered Assets Coverage Ratio


  
	

   


  	

  8.13


  	

  Fixed Charge Coverage Ratio


  
	

   


  	

  8.14


  	

  Minimum Tangible Net Worth


  
	

   


  	

  8.15


  	

  Maximum Total Indebtedness


  





 




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  8.16


  	

  Indebtedness to Unencumbered Assets Ratio


  
	

   


  	

  8.17


  	

  Maximum Book Value of Ancillary Assets


  
	

   


  	

  8.18


  	

  Development Activity


  
	

  9.


  	

  DEFAULT


  
	

   


  	

  9.1


  	

  Events of Default


  
	

  10.


  	

  THE AGENT


  
	

   


  	

  10.1


  	

  Appointment


  
	

   


  	

  10.2


  	

  Delegation of Duties


  
	

   


  	

  10.3


  	

  Exculpatory Provisions


  
	

   


  	

  10.4


  	

  Reliance by Administrative Agent


  
	

   


  	

  10.5


  	

  Notice of Default


  
	

   


  	

  10.6


  	

  Non–Reliance on Administrative Agent

  and Other Lenders


  
	

   


  	

  10.7


  	

  Indemnification


  
	

   


  	

  10.8


  	

  Administrative Agent in Its Individual

  Capacity


  
	

   


  	

  10.9


  	

  Successor Administrative Agent


  
	

  11.


  	

  OTHER

  PROVISIONS


  
	

   


  	

  11.1


  	

  Amendments and Waivers


  
	

   


  	

  11.2


  	

  Notices


  
	

   


  	

  11.3


  	

  No Waiver; Cumulative Remedies


  
	

   


  	

  11.4


  	

  Survival of Representations and Warranties


  
	

   


  	

  11.5


  	

  Payment of Expenses and Taxes


  
	

   


  	

  11.6


  	

  Lending

  Offices


  
	

   


  	

  11.7


  	

  Successors and Assigns


  
	

   


  	

  11.8


  	

  [Intentionally Omitted]


  
	

   


  	

  11.9


  	

  Counterparts


  
	

   


  	

  11.10


  	

  Adjustments;

  Set–off


  
	

   


  	

  11.11


  	

  Lenders’ Representations


  
	

   


  	

  11.12


  	

  Indemnity


  
	

   


  	

  11.13


  	

  Governing

  Law


  
	

   


  	

  11.14


  	

  Headings Descriptive


  
	

   


  	

  11.15


  	

  Severability


  
	

   


  	

  11.16


  	

  Integration


  





 




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  11.17


  	

  Consent to Jurisdiction


  
	

   


  	

  11.18


  	

  Service of Process


  
	

   


  	

  11.19


  	

  No Limitation on Service or Suit


  
	

   


  	

  11.20


  	

  WAIVER OF TRIAL BY JURY


  
	

   


  	

  11.21


  	

  TERMINATION


  
	

   


  	

  11.22


  	

  REPLACEMENT NOTES


  





 




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LIST OF EXHIBITS AND SCHEDULES




 




	

  EXHIBITS:


  
	

   


  	

   


  	

   


  
	

  Exhibit A


  	

  -


  	

  Assignment

  and Assumption


  
	

   


  	

   


  	

   


  
	

  Exhibit B


  	

  -


  	

  Commitments

  and Domestic LIBOR Lending Offices


  
	

   


  	

   


  	

   


  
	

  Exhibit C


  	

  -


  	

  [Intentionally

  Omitted]


  
	

   


  	

   


  	

   


  
	

  Exhibit D


  	

  -


  	

  Compliance

  Certificate


  
	

   


  	

   


  	

   


  
	

  Exhibit E


  	

  -


  	

  [Intentionally

  Omitted]


  
	

   


  	

   


  	

   


  
	

  Exhibit F


  	

  -


  	

  Guaranty


  
	

   


  	

   


  	

   


  
	

  Exhibit G


  	

  -


  	

  [Intentionally

  Omitted]


  
	

   


  	

   


  	

   


  
	

  Exhibit H


  	

  -


  	

  Note


  
	

   


  	

   


  	

   


  
	

  Exhibit I


  	

  -


  	

  Secretary’s

  Certificate Borrower


  
	

   


  	

   


  	

   


  
	

  Exhibit J


  	

  -


  	

  Secretary’s

  Certificate Guarantor


  
	

   


  	

   


  	

   


  
	

  Exhibit K


  	

  -


  	

  [Intentionally

  Omitted]


  
	

   


  	

   


  	

   


  
	

  Exhibit L


  	

  -


  	

  [Intentionally

  Omitted]


  
	

   


  	

   


  	

   


  
	

  Exhibit M


  	

  -


  	

  Form of

  Notice of Conversion


  
	

   


  	

   


  	

   


  
	

  Exhibit N


  	

  -


  	

  [Intentionally

  Omitted]


  
	

   


  	

   


  	

   


  
	

  SCHEDULES:


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

  Schedule 4.4


  	

  -


  	

  Subsidiaries

  (including Subsidiary Guarantors)


  
	

   


  	

   


  	

   


  
	

  Schedule 4.5


  	

  -


  	

  Litigation


  
	

   


  	

   


  	

   


  
	

  Schedule

  4.12


  	

  -


  	

  Plans


  
	

   


  	

   


  	

   


  
	

  Schedule

  4.21


  	

  -


  	

  List of

  Unencumbered Assets


  





 




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