**Exhibit 10.15**

 

**FIRST AMENDED AND RESTATED TERM LOANAGREEMENT**

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**BY AND AMONG**

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**NEW PLAN EXCEL REALTY TRUST, INC.,**

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**THE LENDERS PARTY HERETO,**

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**FLEET NATIONAL BANK**

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**AS ADMINISTRATIVE AGENT, AND**

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**FLEET SECURITIES, INC. AS SOLE LEAD ARRANGER**

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**AND SYNDICATION AGENT**

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**DATED AS OF NOVEMBER 6, 2002**

 

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FIRST AMENDEDAND RESTATED TERM LOAN AGREEMENT, dated as of November 6, 2002, by andamong NEW PLAN EXCEL REALTY TRUST, INC., a Maryland corporation (the“Borrower”), each lender party hereto or which becomes a “Lender” pursuant tothe provisions of Section 11.7 (each a “Lender” and, collectively, the“Lenders”), and FLEET NATIONAL BANK (“FNB”), as administrative agent (in suchcapacity, the “Administrative Agent”).

 

RECITALS

 

WHEREAS,Borrower, FNB, certain other lenders and Administrative Agent entered into thatcertain Term Loan Agreement dated as of March 1, 2002 (the “Original LoanAgreement”); and

 

WHEREAS,Borrower has requested that the Lenders and Administrative Agent amend certainprovisions of the Original Loan Agreement; and

 

WHEREAS,Administrative Agent, Borrower and the Lenders desire to amend and restate theOriginal Loan Agreement in its entirety;

 

NOW,THEREFORE, in consideration of the recitals herein and the mutual covenantscontained herein, the parties hereto hereby amend and restate the Original LoanAgreement in its entirety as follows:

 

1.             DEFINITIONS.

 

1.1           Defined Terms.

 

As used inthis Agreement, terms defined in the preamble have the meanings thereinindicated, 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 ofthe foregoing; or such other firm of certified public accountants selected bythe Borrower and satisfactory to the Administrative Agent.

 

“Acquisitions”:  collectively, the CenterAmerica Acquisitionand the EIG Acquisition.

 

“AdjustedConsolidated Total Assets”:  on aconsolidated basis for Borrower and its Subsidiaries, the sum (withoutduplication) 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 Borrowerand its Subsidiaries (including, without limitation, all capitalized costsincurred in connection therewith) on the last day of the fiscal quarter justended; plus

 

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(iii)          to the extent not included pursuant to(ii) above, Borrower’s pro rata share of the book value of Land Assets, NewConstruction Assets, Redevelopment Assets and Notes Receivable of JointVentures (including, without limitation, all capitalized costs incurred inconnection therewith) on the last day of the fiscal quarter just ended; plus

 

(iv)          the aggregate amount of the unpledgedportion of (x) all unrestricted cash and marketable securities of Borrower andits Subsidiaries (including, without limitation, Investments described inSections 8.3(a) through 8.3(f)) plus (y) all restricted cash held by anyPerson serving as a “qualified intermediary” for purposes of an exchange pursuantto Section 1031 of the Code on behalf of Borrower or any of its Subsidiaries.

 

AdjustedConsolidated Total Assets shall be calculated on a pro forma basis as if assetsacquired during the relevant period were owned as of the beginning of therelevant period, and all assets disposed of during the relevant period were notowned during any portion of the relevant period.  For purposes of calculating the percentages set forth in Section8.15, Adjusted Consolidated Total Assets shall include an amount equal to theaggregate 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 uponthe expiration, termination or return of the Fleet Letter of Credit, an amountequal to the amount of the Fleet Letter of Credit shall no longer be includedwithin the calculation of Adjusted Consolidated Total Assets.

 

“AdjustedNet Operating Income”:  for anyperiod, the aggregate amount of the Net Operating Income from each UnencumberedAsset or Operating Property, as applicable, during such period, less theCapital Expense Reserve for such Unencumbered Asset or Operating Property, asapplicable, during such period.

 

“Advance”:  a Prime Rate Loan or a LIBOR Loan, as thecase may be.

 

“AffectedAdvance”:  as defined in Section2.10.

 

“AffectedPrincipal Amount”:  in the eventthat (i) the Borrower shall fail for any reason to borrow or convert after itshall have notified the Administrative Agent of its intent to do so in anyinstance in which it shall have requested a LIBOR Loan on the Effective Date orpursuant to Section 2.8, an amount equal to the principal amount of such LIBORLoan; (ii) a LIBOR Loan shall terminate for any reason prior to the last day ofthe Interest Period applicable thereto, an amount equal to the principal amountof such LIBOR Loan; or (iii) the Borrower shall prepay or repay all or any partof the principal amount of a LIBOR Loan prior to the last day of the InterestPeriod applicable thereto (including, without limitation, any mandatoryprepayment or a prepayment resulting from acceleration or illegality), anamount 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 commoncontrol with, such Person.  For purposesof this definition, control of a Person shall mean the power, direct orindirect, (i) to vote 10% or more of the securities having ordinary votingpower for the election of directors of such Person or (ii) to direct or causethe direction of the management and policies of such Person, whether bycontract or otherwise.

 

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“Agreement”:  this First Amended and Restated Term LoanAgreement, as the same may be amended, supplemented or otherwise modified fromtime to time.

 

“AgreementRegarding Fees”:  that certainAgreement Regarding Fees dated of even date herewith between FNB and theBorrower.

 

“AncillaryAssets”:  at any time (withoutduplication), (a) all Real Property of the Borrower and its Subsidiaries whichis (i) a mortgage, (ii) a New Construction Asset, or (iii) any other RealProperty other than an open air shopping center (including single tenant retailproperties) or a residential apartment building or a residential apartmentcommunity (and appurtenant amenities), and (b) all Investments of the Borrowerand its Subsidiaries of the type described in Section 8.3(h) and (q).

 

“ApplicableLending Office”:  in respect of anyLender, (A) in the case of such Lender’s Prime Rate Loans, its Domestic LendingOffice and (B) in the case of such Lender’s LIBOR Loans, its LIBOR LendingOffice.

 

“ApplicableMargin”:  with respect to the unpaidprincipal balance of Prime Rate Loans or LIBOR Loans, at all times during whichthe applicable Pricing Level set forth below is in effect, the respectivepercentage 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 theApplicable Margin resulting from a change in a Pricing Level shall becomeeffective as of the opening of business upon the date of any change in theSenior Debt Rating of the Borrower, as determined by S&P or Moody’s, as thecase may be, which would affect the applicable Pricing Level.

 

“Assignmentand Assumption Agreement”:  anassignment and assumption agreement executed by an assignor and an assigneepursuant to which such assignor assigns to such assignee all or any portion ofsuch assignor’s Notes and Commitments, substantially in the form of Exhibit A,with such changes thereto as shall be reasonably acceptable to theAdministrative Agent.

 

“AssignmentFee”:  as defined in Section11.7(b).

 

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“AuthorizedSignatory”:  the chairman of theboard, the chief executive officer, the president, any executive vice president,the Chief Financial Officer or any other duly authorized officer (acceptable tothe Administrative Agent) of the Borrower.

 

“BenefitedLender”:  as defined in Section11.10.

 

“Borrower’sInterest”:  for any period, (i) withrespect to Unencumbered Assets or Operating Properties, as applicable, owned bya DownREIT Partnership, a fraction, expressed as a percentage, the numerator ofwhich is the Net Operating Income of such Unencumbered Assets or OperatingProperties, as applicable, for such period, less any distributions required tobe made to partners or members of such DownREIT Partnership, other than theBorrower and its Subsidiaries, and the denominator of which is the NetOperating Income of such Unencumbered Assets or Operating Properties, as applicable,for such period, and (ii) with respect to any Ancillary Asset or RedevelopmentAsset, the percentage of profits and losses with respect thereto which theBorrower or its Subsidiaries, directly or indirectly, may be entitled toreceive for such period.

 

“BorrowingDate”:  the date on which theBorrower requests the Lenders to make Loans, which date shall be the EffectiveDate.

 

“BusinessDay”:  for all purposes other thanas set forth in clause (ii) below, (i) any day other than a Saturday, a Sundayor a day on which commercial banks located in Boston, Massachusetts or New YorkCity, New York, are authorized or required by law or other governmental actionto close and (ii) with respect to all notices and determinations in connectionwith, and payments of principal and interest on, LIBOR Loans, any day which isalso a LIBOR Business Day.

 

“CapitalEvent”:  the consummation of assetsales 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.

 

“CapitalExpense Reserve”:  during anyperiod, (i) with respect to each Unencumbered Asset or Operating Property, asapplicable, other than a residential apartment building or residentialapartment 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 OperatingProperty, as applicable, that is a residential apartment building or residentialapartment community, an amount equal to (A) $150 times (B) the number ofapartment units in such residential apartment building or community (in eachcase whether or not such reserves are actually established by the Borrower).

 

“CapitalLeases”:  leases which have been, orunder GAAP are required to be, capitalized.

 

“CenterAmericaAcquisition”:  the acquisition byBorrower 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 asignificant portion of the CenterAmerica Property Trust, L.P. portfolio.

 

“Change ofControl”:  the occurrence of any oneof the following events:

 

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

 

(b)           during any twelve month period on orafter the Effective Date, individuals who at the beginning of such periodconstituted the Board of Directors of the Borrower (together with any newdirectors whose election by the Board of Directors or whose nomination forelection by the shareholders of the Borrower was approved by a vote of at leasta majority of the members of the Board of Directors then in office who eitherwere members of the Board of Directors at the beginning of such period or whoseelection or nomination for election was previously so approved) cease for anyreason to constitute a majority of the members of the Board of Directors thenin office; or

 

(c)           there occurs a change of control ofthe Borrower of a nature that would be required to be reported in response toItem 1a of Form 8-K filed pursuant to Section 13 or 15 under the SecuritiesExchange Act of 1934, or in any other filing by the Borrower with theSecurities and Exchange Commission; or

 

(d)           the Borrower consolidates with, isacquired by, or merges into or with any Person (other than a merger permittedby Section 8.2).

 

“ChiefFinancial Officer”:  at any time,the chief financial officer of the Borrower, or if the Borrower does not have achief financial officer at such time, the officer designated by the Borrower asits principal financial officer or such other officer of the Borrower that isacceptable to the Administrative Agent.

 

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

 

“Commitment”:  in respect of any Lender, such Lender’sundertaking to make Loans, subject to the terms and conditions hereof, in anaggregate outstanding principal amount not exceeding such Lender’s CommitmentAmount.

 

“CommitmentAmount”:  the amount set forth nextto the name of such Lender in Exhibit B under the heading“Commitments” as such Lender’s Commitment Amount.

 

“CommitmentPercentage”:  on any day, and as toany Lender, the quotient of (i) such Lender’s Commitment Amount on such day,divided by (ii) the Commitments of all Lenders on such day.

 

“ComplianceCertificate”:  a certificatesubstantially in the form of Exhibit D.

 

“Consolidated”:  the Borrower and its Subsidiaries which areconsolidated for financial reporting purposes.

 

“ConsolidatedEBITDA”:  with respect to any periodan amount equal to the EBITDA of Borrower and its Subsidiaries for such period,Consolidated in accordance with GAAP.

 

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“ConsolidatedFixed Charges”:  during any period,the sum of each of the following with respect to the Borrower and itsSubsidiaries (without duplication), determined on a Consolidated basis inaccordance with GAAP:  (i) the aggregateamount of all interest expense, both expensed and capitalized (includingConsolidated Interest Expense) for such period, (ii) the aggregate of allscheduled principal amounts that become payable during such period in respectof any Indebtedness of the Borrower or its Subsidiaries (excluding balloonpayments at maturity) and (iii) the aggregate amount of all cash dividends paidduring such period in respect of preferred stock of the Borrower or itsSubsidiaries.

 

“ConsolidatedInterest Expense”:  for any period,interest and fees accrued, accreted or paid by the Borrower and itsSubsidiaries during such period in respect of Consolidated Total Indebtedness,determined in accordance with GAAP, including (a) the amortization of debtdiscounts to the extent included in interest expense in accordance with GAAP,(b) the amortization of all fees (including fees with respect to HedgingAgreements entered into by the Borrower or any of its Subsidiaries) payable inconnection with the incurrence of any Indebtedness to the extent included ininterest expense in accordance with GAAP and (c) the portion of any rentspayable under capital leases allocable to interest expense in accordance withGAAP.

 

“ConsolidatedTotal Indebtedness”:  as of anydate, the aggregate principal amount of all Indebtedness of the Borrower andits Subsidiaries determined on a Consolidated basis in accordance with GAAP,plus, if not otherwise required to be reflected in the Borrower’s Consolidatedbalance sheet (and without duplication) (i) Contingent Obligations of theBorrower and its Subsidiaries on such date which are required in accordancewith GAAP to be disclosed in a footnote to any such balance sheet, and (ii) anyguarantee by the Borrower of any Indebtedness of an unconsolidated Subsidiaryor Joint Venture in which the Borrower is a direct or indirect investor (to thefull extent of the amount of such guaranteed Indebtedness on such date);provided, however, that with respect to Joint Ventures in which Borrower is adirect or indirect investor that are not consolidated in the Borrower’sConsolidated balance sheet, Consolidated Total Indebtedness shall also include(x) the aggregate principal amount of all Indebtedness of such Joint Venturesif 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 allIndebtedness of such Joint Ventures if such Indebtedness is Non-RecourseIndebtedness.  Notwithstanding theforegoing, unfunded portions of any Indebtedness (and any ContingentObligations relating solely to such unfunded amounts) shall not be included inConsolidated Total Indebtedness.

 

“ContingentObligation”:  as to any Person, anyobligation of such Person guaranteeing or in effect guaranteeing anyIndebtedness, leases, dividends or other obligations (“Primary Obligations”) ofany other Person (the “Primary Obligor”) in any manner, whether directly orindirectly, and whether arising from partnership or keep-well agreements,including, without limitation, any obligation of such Person, whethercontingent or not contingent (a) to purchase any such Primary Obligation or anyProperty constituting direct or indirect security therefor, (b) to advance orsupply 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 orotherwise to maintain net worth, solvency or other financial statementcondition of the Primary Obligor, (c) to purchase Property, securities orservices primarily for the purpose of assuring the beneficiary of any suchPrimary Obligation of the ability of the Primary Obligor to make payment ofsuch Primary 

 

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Obligation or (d) otherwise toassure, protect from loss or hold harmless the beneficiary of such PrimaryObligation against loss in respect thereof; provided, however, that the termContingent Obligation shall not include (a) the endorsement of instrumentsfor deposit or collection in the ordinary course of business, or(b) guarantees or carve-outs with respect to claims of the typesreferenced in (i)-(iv) of the definition of Non-Recourse Exclusions until aclaim is made with respect thereto, and then shall be included only to theextent of the amount of such claim.  Theterm Contingent Obligation shall also include the liability of a general partnerin respect of the liabilities of the partnership in which it is a generalpartner, but shall not include the liability of a member (managing orotherwise) of a limited liability company in respect of the liabilities of suchlimited liability company to the extent not imposed by agreement or by law.  The amount of any Contingent Obligation of aPerson shall be deemed to be an amount equal to the stated or determinableamount of the Primary Obligation in respect of which such Contingent Obligationis made or, if not stated or determinable, the maximum reasonably anticipatedliability in respect thereof as determined by such Person in good faith.

 

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

 

“CreditParty”:  the Administrative Agent,the Lead Arranger, each Lender and their successors and assigns.

 

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

 

“DefaultingLender”:  at any time, any Lenderthat, at such time, (i) has failed to comply with any of its obligations tomake a Loan as required pursuant to Section 2.3 of this Agreement, (ii) hasfailed to pay to the Administrative Agent or any Lender an amount owed by suchLender pursuant to the terms of this Agreement or any of the other LoanDocuments, or (iii) has advised the Administrative Agent that it does notintend to comply with its obligations under Section  2.3 by reason of having been deemed insolvent or having becomesubject to a bankruptcy or insolvency proceeding.

 

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

 

“DomesticLending Office”:  in respect of anyLender, initially, the office or offices of such Lender designated as such on ExhibitB; thereafter, such other office of such Lender through which it shall bemaking or maintaining Prime Rate Loans, as reported by such Lender to theAdministrative Agent and the Borrower.

 

“DomesticReference Lender”:  FNB or suchother Lender as may become the Administrative Agent hereunder.

 

“DownREITPartnership”:  Excel RealtyPartners, L.P. and any other partnership or limited liability company hereaftercreated by the Borrower for the purpose of acquiring assets qualifying as “realestate assets” under Section 856(c) of the Code through the issuance ofpartnership or limited liability company units in such partnership or limitedliability company to

 

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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 solegeneral partner or managing member of such partnership or limited liabilitycompany, as the case may be, and (ii) the Borrower or its wholly ownedSubsidiary shall be entitled to receive not less than 99% of the net income andgains before depreciation, if any, from such partnership or limited liabilitycompany after the limited partners or non-managing members of such partnershipor limited liability company receive a stipulated distribution. Any partnershipor limited liability company created after the Effective Date must be approvedby the Administrative Agent as a “DownREIT Partnership” for purposes of beingincluded in this definition.

 

“EBITDA”:  with respect to a Person or a Subsidiary ofa Person (or any asset of a Person or a Subsidiary of such Person) for anyperiod, an amount equal to the sum of (a) the net income (or loss) of suchPerson (or attributable to such asset) for such period plus (b)depreciation and amortization, interest, and any extraordinary or non-recurringlosses or charges for impairment of real estate deducted in calculating suchnet income minus (c) any extraordinary or non-recurring gains includedin calculating such net income, all as determined in accordance with GAAP.  EBITDA shall be calculated on apro forma basis as if assets acquired during the relevant period wereowned as of the beginning of the relevant period, and all assets disposed ofduring the relevant period were not owned during any portion of the relevantperiod.  Adjustments for unconsolidatedpartnerships and Joint Ventures will be calculated to reflect EBITDA on thesame basis.

 

“EffectiveDate”:  the date on which theconditions specified in Section 5 are satisfied.

 

“EIGAcquisition”:  the acquisition bythe 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 formof units in a DownREIT Partnership) of a portfolio of neighborhood andcommunity shopping centers from EIG Realty, Inc. and its Affiliates.

 

“EIGAcquisition Date”:  the date bywhich each of the following shall have occurred: (i) the payment (otherthan a good faith deposit or down payment) by the Borrower or any one or moreof its Subsidiaries of the purchase price for the assets which are the subjectof the EIG Acquisition, and (ii) the transfer to the Borrower or any one ormore of its Subsidiaries (or to an Exchange Accommodation Titleholder to theextent permitted in the definition of “Unencumbered Assets”) of the assetswhich are the subject of the EIG Acquisition.

 

“EnvironmentalLaws”:  any and all federal, stateand local laws relating to the environment, the use, storage, transporting,manufacturing, handling, discharge, disposal or recycling of hazardoussubstances, materials or pollutants or industrial hygiene and including,without limitation, (i) the Comprehensive Environmental Response, Compensationand Liability Act, as amended, 42 USCA §9601 et seq.; (ii) the ResourceConservation 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) theWater Pollution Control Act, as amended, 33 USCA §1251 et seq.; (v) the CleanAir Act, as amended, 42 USCA §7401 et seq.; (vi) the Hazardous MaterialTransportation Act, as amended, 49 USCA §1801 et seq. and (viii) all rules,regulations, judgments, decrees, injunctions and restrictions thereunder andany analogous state law.

 

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“EnvironmentalRisk Property”:  any Real Propertyof the Borrower, a Subsidiary or a DownREIT Partnership in respect of which, atany time:

 

(i)            Hazardous Substances are (A)generated or manufactured on, transported to or from, treated at, stored at ordischarged from such Real Property in violation of any Environmental Laws; (B)discharged into subsurface waters under such Real Property in violation of anyEnvironmental Laws; or (C) discharged from such Real Property on or intoproperty or waters (including subsurface waters) adjacent to such Real Propertyin 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 suchReal 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 injuriesor penalties) arising in connection with: (x) any non-compliance with or violation of the requirements of any applicableEnvironmental Laws, or (y) the presence of any Hazardous Substance on such RealProperty or the release of any Hazardous Substance into the environment fromsuch Real Property, or (B) any actual liability in connection with the presenceof any Hazardous Substance on such Real Property or the release of anyHazardous Substance into the environment from such Real Property, and any ofthe foregoing events in (A) or (B) has an Adverse Environmental Impact.

 

For purposesof this definition, the term “Adverse Environmental Impact” shall mean anyevent 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 amaterial adverse effect on (1) the value of such Real Property, (2) themarketability of such Real Property, or (3) the ability to finance or refinancesuch Real Property.

 

“ERISA”:  the Employee Retirement Income Security Actof 1974, as amended from time to time, and the rules and regulations issuedthereunder, as from time to time in effect.

 

“ERISAAffiliate”:  any Person which is amember of any group of organizations (i) described in Section 414(b) or (c) ofthe Code of which the Borrower is a member, or (ii) solely for purposes ofpotential liability under Section 302(c)(11) of ERISA and Section 412(c)(11) ofthe 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 theBorrower is a member.

 

“ERISALiabilities”:  without duplication,the aggregate of all unfunded vested benefits under all Plans and all potentialwithdrawal liabilities under all Multiemployer Plans.

 

“Event ofDefault”:  any of the eventsspecified in Section 9, provided that any requirement for the giving of notice,the lapse of time or any other condition specified in Section 9 hasoccurred or been satisfied.

 

“ExchangeAccommodation Titleholder”:  Anentity approved by Administrative Agent to act as an exchange accommodationtitleholder under Rev. Proc. 2000-37.

 

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“ExcludedSubsidiary”:  (i) Excel RealtyPartners, L.P., a Delaware limited partnership, CA New Plan Floating RatePartnership, L.P., a Delaware limited partnership, and CA New Plan Fixed RatePartnership, L.P., a Delaware limited partnership, (ii) any Subsidiary allof the Real Property of which is encumbered in favor of a Person other thanBorrower or any of its Subsidiaries, (iii) any Consolidated Joint Ventureor any Subsidiary, the sole asset of which is an interest as a partner, memberor 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 RealProperty or equity interests related thereto in a bankruptcy remote manner tosecure secured Indebtedness permitted by this Agreement.

 

“ExistingCredit Agreement”:  that certainRevolving Credit Agreement dated as of April 26, 2002 among the Borrower,FNB as Administrative Agent, and the lenders signatory thereto, as subsequentlyamended, and any restatements, consolidations, replacements or refinancingsthereof.

 

“FederalFunds Rate”:  for any day, a rateper annum (expressed as a decimal, rounded upwards, if necessary, to the nexthigher 1/100 of 1%), equal to the weighted average of the rates on overnightfederal funds transactions with members of the Federal Reserve System arrangedby federal funds brokers on such day, as published by the Federal Reserve Bankof New York on the Business Day next succeeding such day, provided that (i) ifthe day for which such rate is to be determined is not a Business Day, theFederal Funds Rate for such day shall be such rate on such transactions on thenext preceding Business Day as so published on the next succeeding BusinessDay, and (ii) if such rate is not so published for any day, the Federal FundsRate for such day shall be the average of the quotations for such day on suchtransactions received by FNB as determined by FNB and reported to theAdministrative Agent.

 

“FinancialStatements”:  as defined in Section4.13.

 

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

 

“FleetLetter of Credit”:  that certainirrevocable standby letter of credit issued by FNB for the benefit of Bank ofAmerica, N.A. for the account of Borrower, dated September 13, 2001, in theface 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 fromOperations”:  with respect to anyPerson for any fiscal period, the sum of (i) the net income of such Person forsuch fiscal period (computed in accordance with GAAP), excluding gains (orlosses) from debt restructuring and sales of property, (ii) depreciation andamortization, and (iii) other non-cash items, and after adjustments forunconsolidated partnerships and Joint Ventures.  Adjustments for unconsolidated partnerships and Joint Ventureswill be calculated to reflect funds from operations on the same basis.

 

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“GAAP”:  generally accepted accounting principles setforth in the opinions and pronouncements of the Accounting Principles Board andthe American Institute of Certified Public Accountants and statements andpronouncements of the Financial Accounting Standards Board or in such otherstatement by such other entity as may be approved by a significant segment ofthe accounting profession, which are applicable to the circumstances as of thedate of determination, consistently applied.

 

“GovernmentalAuthority”:  any nation orgovernment, any state or other political subdivision thereof, any entityexercising executive, legislative, judicial, regulatory or administrativefunctions of or pertaining to government and any court or arbitrator.

 

“GroundLease”:  a ground lease in favor ofthe Borrower, a wholly owned Subsidiary or a DownREIT Partnership which has anunexpired term of 30 years or more (inclusive of any tenant-controlled renewaloptions) and which includes within its terms those rights customarily requiredby mortgagees making a loan secured by the interest of the holder of theleasehold estate demised pursuant to such ground lease.

 

“Guaranty”:  collectively, (i) an Amended and RestatedGuaranty substantially in the form of Exhibit F executed by each of theSubsidiary Guarantors identified on Schedule 4.4 and delivered to theAdministrative Agent for the benefit of the Lenders on or prior to theEffective Date, and (ii) each additional Guaranty substantially in the form of ExhibitF executed by each Required Additional Guarantor and delivered to theAdministrative Agent for the benefit of the Lenders after the Effective Date.

 

“HazardousSubstance”:  any hazardous or toxicsubstance, material or waste, including, but not limited to, (i) thosesubstances, materials, and wastes listed in the United States Department ofTransportation Hazardous Materials Table (49 CFR 172.101) or by theEnvironmental Protection Agency as hazardous substances (40 CFR Part 302) andamendments thereto and replacements therefor and (ii) any substance, pollutantor material defined as, or designated in, any Environmental Law as a “hazardoussubstance,” “toxic substance,” “hazardous material,” “hazardous waste,”“restricted hazardous waste,” “pollutant,” “toxic pollutant” or words ofsimilar import.

 

“HedgingAgreement”:  any interest rateprotection agreement, foreign currency exchange agreement, commodity priceprotection agreement or other interest or currency exchange rate or commodityprice hedging arrangement.

 

“HighestLawful Rate”:  with respect to anyLender, the maximum rate of interest, if any, that at any time or from time totime may be contracted for, taken, charged or received by such Lender on itsNote or which may be owing to such Lender pursuant to this Agreement under thelaws applicable to such Lender and this Agreement.

 

“Indebtedness”:  as to any Person, at a particular time, allitems which constitute, without duplication, (a) indebtedness for borrowedmoney (including, without limitation, indebtedness under this Agreement and theNotes) or the deferred purchase price of Property (other than trade payablesincurred in the ordinary course of business), (b) indebtedness evidenced bynotes, bonds, debentures or similar instruments, (c) obligations with respectto any conditional sale or

 

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title retention agreement, (d)indebtedness arising under acceptance facilities and the amount available to bedrawn under all letters of credit issued for the account of such Person and,without duplication, all drafts drawn thereunder to the extent such Personshall not have reimbursed the issuer in respect of the issuer’s payment of suchdrafts, (e) all liabilities secured by any Lien on any Property owned by suchPerson even though such Person has not assumed or otherwise become liable forthe payment thereof (other than carriers’, warehousemen’s, mechanics’,repairmen’s or other like non-consensual statutory Liens arising in theordinary course of business), (f) obligations under Capital Leases, (g)Contingent Obligations and (h) ERISA Liabilities; provided, however, thatthe term Indebtedness shall not include guarantees or carve-outs with respectto claims of the types referenced in (i)-(iv) of the definition of Non-RecourseExclusions until a claim is made with respect thereto, and then shall beincluded only to the extent of the amount of such claim.

 

“IndemnifiedPerson”:  as defined in Section11.12.

 

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

 

“InterestPayment Date”:  as to any Loan, thefirst day of each month, commencing with the first day of the first monthfollowing the date hereof.

 

“InterestPeriod”:  with respect to any LIBORLoans 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 andending one, two, three or six months thereafter, as selected by the Borrower inits irrevocable request to Administrative Agent with respect to the Loans to bemade on the Effective Date or its irrevocable notice of conversion as providedin Section 2.8; provided, however, that all of the foregoing provisionsrelating to Interest Periods are subject to the following:

 

(a)           if any Interest Period pertaining toa LIBOR Loan would otherwise end on a day which is not a Business Day, suchInterest Period shall be extended to the next succeeding Business Day unlessthe result of such extension would be to carry such Interest Period intoanother calendar month, in which event such Interest Period shall end on theimmediately preceding Business Day;

 

(b)           if, with respect to the borrowing ofany Loan as a LIBOR Loan or the conversion of one Advance to another pursuantto Section 2.8, the Borrower shall fail to give due notice with respect to theLoans to be made on the Effective Date or with respect to a conversion asprovided in Section 2.8, as the case may be, the Borrower shall be deemed tohave elected that such Loan or Advance shall be made as a Prime Rate Loan;

 

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

 

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

 

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(e)           the Borrower shall select InterestPeriods so as not to have more than five (5) different Interest Periodsoutstanding at any one time with respect to LIBOR Loans.

 

“Investments”:  as defined in Section 8.3.

 

“JointVenture”:  an Investment by Borroweror any of its Subsidiaries with third persons in joint ventures, generalpartnerships, limited partnerships, limited liability companies or any otherbusiness association.  Joint Venturesinclude non-wholly owned Subsidiaries of Borrower.

 

“LandAssets”:  any land of the Borroweror its Subsidiaries, or in which the Borrower or any of its Subsidiaries has aninterest (either directly or indirectly, through a Joint Venture or otherwise)with respect to which the commencement of grading, construction of improvementsor infrastructure has not yet commenced, and all unimproved land according toGAAP.

 

“LeadArranger”:  Fleet Securities, Inc.

 

“LIBOR”:  as applicable to any Interest Period for anyLIBOR Loan, the rate per annum (rounded upwards, if necessary, to the nearest1/32nd of one percent) as determined on the basis of the offered rates fordeposits in Dollars, for the period of time comparable to such Interest Periodwhich appears on the Telerate page 3750 as of 11:00 a.m. London time on the daythat is two (2) LIBOR Business Days preceding the first day of such InterestPeriod; provided, however, if the rate described above does not appear on theTelerate system on any applicable interest determination date, LIBOR shall bethe rate (rounded upwards as described above, if necessary) for deposits inDollars for a period substantially equal to the Interest Period on the ReutersPage “LIBO” (or such other page as may replace the LIBO Page on that servicefor the purpose of displaying such rates), as of 11:00 a.m. (London Time), onthe day that is two (2) LIBOR Business Days prior to the beginning of suchInterest Period.  If both the Telerateand Reuters systems are unavailable, then the rate for that date will bedetermined on the basis of the offered rates for deposits in Dollars for aperiod of time comparable to such Interest Period which are offered by fourmajor banks in the London interbank market at approximately 11:00 a.m. Londontime, on the day that is two (2) LIBOR Business Days preceding the first day ofsuch Interest Period as selected by Administrative Agent.  The principal London office of each of thefour major London banks will be requested to provide a quotation of its U.S.dollar deposit offered rate.  If atleast two such quotations are provided, the rate for that date will be thearithmetic mean of the quotations.  Iffewer than two quotations are provided, the rate for that date will bedetermined on the basis of the rates quoted for loans in Dollars to leadingEuropean banks for a period of time comparable to such Interest Period offeredby major banks in New York City at approximately 11:00 a.m. (New York Citytime), on the day that is two (2) LIBOR Business Days preceding the first dayof such Interest Period.  In the eventthat Administrative Agent is unable to obtain any such quotation as providedabove, it will be deemed that LIBOR pursuant to a LIBOR Loan cannot bedetermined and the provisions of Section 2.10 shall apply.  In the event that the Board of Governors ofthe Federal Reserve System shall impose a Reserve Percentage with respect toLIBOR deposits of Administrative Agent, then for any period during which suchReserve Percentage shall apply, LIBOR shall be equal to the amount determinedabove divided by an amount equal to 1 minus the Reserve Percentage.

 

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“LIBORBusiness Day”:  any day on whichcommercial banks are open for international business (including dealings inDollar deposits) in London, England.

 

“LIBORLending Office”:  initially, theoffice of each Lender designated as such in Exhibit B hereto;thereafter, such other office of such Lender, if any, that shall be making ormaintaining LIBOR Loans.

 

“LIBORLoans”:  loans bearing interestcalculated by reference to a LIBOR.

 

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

 

“Loan”and “Loans”:  an individual termloan or the aggregate term loans as the case may be, to be made by the Lendershereunder.  All Loans shall be made inDollars.

 

“LoanDocuments”:  collectively, thisAgreement, the Guaranty (and each Guaranty subsequently delivered pursuant toSection 7.11) and the Notes.

 

“MarginStock”:  any “margin stock”, as saidterm is defined in Regulation U of the Board of Governors of the FederalReserve System, as the same may be amended or supplemented from time to time.

 

“MaterialAdverse Effect”:  a material adverseeffect 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 obligationsunder the Loan Documents or (iii) the ability of the Administrative Agent andthe Lenders to enforce the Loan Documents.

 

“MaturityDate”:  the earlier of(i) December 31, 2003, or (ii) the date on which the Notes shallbecome due and payable, whether by acceleration or otherwise.

 

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

 

“MultiemployerPlan”:  a plan defined as suchSection 3(37) of ERISA to which contributions have been made by the Borrower orany ERISA Affiliate and which is covered by Title IV of ERISA.

 

“NetOperating Income”:  for any periodand with respect to all assets which are Unencumbered Assets or OperatingProperties, as applicable, during such period, the sum of (a) net incomefor such period, determined in accordance with GAAP, attributable toUnencumbered Assets or Operating Properties, as applicable, plus (b)depreciation and amortization, interest expense and any extraordinary ornon-recurring losses or charges for impairment of real estate deducted incalculating such net income, minus (c) extraordinary or non-recurringgains and payments (including rent insurance proceeds and condemnation awards)included in such net income, minus (d) any portion of such net incomeattributable to rents paid

 

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by any tenant which is anAffiliate of the Borrower, minus (e) an amount (but not less thanzero) equal to the excess (if any) of (i) 3% of operating income for suchperiod, over (ii) management fees payable in respect of such UnencumberedAssets or Operating Properties, as applicable, during such period.  For purposes of any calculation of NetOperating Income, real estate taxes, ground rent and insurance shall beincluded only at their stabilized, recurring levels.

 

“NetRentable Area”:  with respect to anyReal Property, the floor area of any buildings, structures or improvementsthereof (expressed in square feet) available for leasing to tenants, asdetermined in accordance with the leases or site plans or leasing plans forsuch Real Property, or if such leases or site plans or leasing plans do not setforth the floor area demised thereunder (or if such Real Property is notsubject to a lease), then as determined by the Borrower in accordance with anindustry-accepted protocol approved by the Administrative Agent.

 

“NewConstruction Asset”:  any Propertyof the Borrower or its Subsidiaries, or in which the Borrower or any of itsSubsidiaries has an interest (either directly or indirectly, through a JointVenture or otherwise) (i) which is new ground-up construction (but notincluding an expansion of an existing Property), and (ii) for which acertificate of occupancy, whether temporary or permanent, or the functionalequivalent thereof, has not been issued with respect to such construction orexpansion (if required by law to occupy the same).  Notwithstanding the foregoing, any such new construction whichshall have been a New Construction Asset under the criteria of this definitionshall no longer be a New Construction Asset upon such time as (A) the sameis an income-producing Property in operating condition, and (B) at least 60% ofthe Net Rentable Area (determined on an “as completed” basis) of suchconstruction is initially leased to tenants who have taken possession thereof.

 

“Non-RecourseExclusions”:  with respect to anyNon-Recourse Indebtedness of any Person, any usual and customary exclusionsfrom 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 orwillful misconduct, (ii) result from intentional mismanagement of or waste atthe Real Property securing such Non-Recourse Indebtedness, (iii) arise from thepresence of Hazardous Substances on the Real Property securing suchNon-Recourse Indebtedness; or (iv) are the result of any unpaid real estatetaxes and assessments.

 

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

 

“Note”and “Notes”:  as defined inSection 2.2.

 

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“NotesReceivable”:  mortgage and notesreceivable and reimbursement agreements (to the extent obligations are payableunder such reimbursement agreements), including interest payments thereunder,of Borrower or any Subsidiary in a Person (other than Borrower or itsSubsidiaries).

 

“OperatingProperty”:  any Real Property whichat any time (i) is an income-producing property in operating condition and inrespect of which no material part thereof has been damaged by fire or othercasualty (unless such damage has been repaired) or condemned (unless such condemnationhas been restored), (ii)(a) is a retail shopping center (including singletenant retail properties) or (b) is one of the properties included in thegarden apartment community****portfoliosold by the Borrower to a private investor group comprised of Houlihan-ParnesRealtors, LLC and C.L.K. Management Corp., which transaction was completed onSeptember 21, 2001, and which property is subsequently reacquired byBorrower or one of its Subsidiaries, and (iii) for which a certificate ofoccupancy, whether temporary or permanent, or the functional equivalentthereof, has been issued for the operating portions of the improvementscomprising the same (if required by law to occupy the same) and are in fullforce and effect, and “Operating Properties” means all such OperatingProperties, collectively.  An OperatingProperty shall not include any Redevelopment Asset or any New ConstructionAsset.

 

“OperatingProperty Value”:  as of any date thequotient of (i) an amount equal to the Adjusted Net Operating Income for allOperating Properties in the aggregate for the four fiscal quarters of theBorrower most recently ending as of such date, divided by (ii) 9.5%. Forpurposes of any determination of Operating Property Value, the followinglimitations and methodology shall apply: (A) the Adjusted Net Operating Income of any Operating Property owned bya DownREIT Partnership shall be based on the Borrower’s Interest in theAdjusted Net Operating Income for each such Operating Property for the fourfiscal quarters having most recently ended as of such date; (B) in the eventmore than 15% of the gross base rents payable under all leases for Propertiesof the Borrower, its Subsidiaries or a DownREIT Partnership (including theBorrower’s Interest in any Properties) shall be payable by one tenant and itsSubsidiaries, then Operating Property Value shall be reduced by the percentageamount of such excess multiplied by the Operating Property Value attributableto 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 nothave owned an Operating Property for the entire previous four fiscal quarters,then for the purposes of determining the Operating Property Value with respectto such Operating Property, the Adjusted Net Operating Income for suchOperating Property shall be annualized in a manner reasonably satisfactory tothe Administrative Agent, provided, however, that to the extent that a NewConstruction Asset or Redevelopment Asset becomes an Operating Property duringthe relevant period, the Adjusted Net Operating Income of such OperatingProperty during such period and the following periods shall be annualized untilsuch time as such Operating Property has performed as an Operating Property forfour (4) full fiscal quarters.

 

“PBGC”:  the Pension Benefit Guaranty Corporationestablished pursuant to Subtitle A of Title IV of ERISA, or any GovernmentalAuthority succeeding to the functions thereof.

 

“PermittedLiens”:  Liens permitted to existunder Section 8.1.

 

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“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 anyother entity of whatever nature.

 

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

 

“PricingLevel”:  one of the following fivepricing levels, as applicable, provided that if the ratings by S&P andMoody’s in any such Pricing Level are split by one equivalent rating level, theoperative rating would be deemed to be the higher of the two ratings, and ifthe ratings by S&P and Moody’s in any such Pricing Level are split by morethan one equivalent rating level, the operative rating would be deemed to beone 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:

 

“PricingLevel I”:  the Pricing Level whichwould be applicable for so long as the Senior Debt Rating is greater than orequal to A- by S&P or A3 by Moody’s;

 

“PricingLevel II”:  the Pricing Level whichwould be applicable for so long as the Senior Debt Rating is equal to BBB+ byS&P or Baa1 by Moody’s and Pricing Level I is not applicable;

 

“PricingLevel III”:  the Pricing Level whichwould be applicable for so long as the Senior Debt Rating is equal to BBB byS&P or Baa2 by Moody’s and Pricing Levels I and II are not applicable;

 

“PricingLevel IV”:  the Pricing Level whichwould be applicable for so long as the Senior Debt Rating is equal to BBB- byS&P or Baa3 by Moody’s and Pricing Levels I, II and III are not applicable;and

 

“PricingLevel V”:  the Pricing Level whichwould be applicable for so long as the Senior Debt Rating is less than BBB- byS&P or Baa3 by Moody’s and Pricing Levels I, II, III and IV are notapplicable.

 

“Prime Rate”:  the greater of (a) the variable annual rateof interest announced from time to time by Administrative Agent atAdministrative 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 necessarilyrepresent the lowest or best rate being charged to any customer.  Any change in the rate of interest payablehereunder resulting from a change in the Prime Rate shall become effective asof the opening of business on the day on which such change in the Prime Ratebecomes effective, without notice or demand of any kind.

 

“Prime RateLoans”:  those Loans bearinginterest calculated by reference to the Prime Rate.

 

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

 

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“RealProperty”:  all real Property, andall interests in real Property, now or hereafter owned, leased or held by theBorrower or any Subsidiary of the Borrower.

 

“RedevelopmentAsset”:  any Property of theBorrower or its Subsidiaries, or in which the Borrower or any of itsSubsidiaries has an interest (either directly or indirectly, through a JointVenture or otherwise) (i) which is not a New Construction Asset,(ii) which is undergoing an expansion which will increase the Net RentableArea of such Property by 20,000 square feet or more (provided that with respectto any Property which is under expansion, if the balance thereof is a fullyintegrated, rentable property, then only the portion of such Property that isunder expansion shall be a Redevelopment Asset), and (iii) for which acertificate of occupancy, whether temporary or permanent, or the functionalequivalent thereof, has not been issued with respect to such construction orexpansion (if required by law to occupy the same).  Notwithstanding the foregoing, any such expansion which shallhave been a Redevelopment Asset under the criteria of this definition shall nolonger be a Redevelopment Asset upon such time as (A) the same is anincome-producing Property in operating condition, and (B) at least 60% ofthe Net Rentable Area (determined on an “as completed” basis) of such expansionis initially leased to tenants who have taken possession thereof.  A Property shall not be considered a RedevelopmentAsset solely because such Property is being restored to its prior conditionfollowing a casualty or condemnation.

 

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

 

“RemainingInterest Period”:  (i) in the eventthat the Borrower shall fail for any reason to borrow a Loan in respect ofwhich it shall have requested a LIBOR Loan or to convert an Advance to a LIBORLoan after it shall have notified the Administrative Agent of its intent to doso with respect to the Loans to be made on the Effective Date or with respectto a conversion pursuant to Section 2.8, a period equal to the Interest Periodthat the Borrower elected in respect of such LIBOR Loan; or (ii) in the eventthat a LIBOR Loan shall terminate for any reason prior to the last day of theInterest Period applicable thereto, a period equal to the remaining portion ofsuch 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 ofthe principal amount of a LIBOR Loan, (including, without limitation, anymandatory prepayment or a prepayment resulting from acceleration or illegality)prior to the last day of the Interest Period applicable thereto, a period equalto the period from and including the date of such prepayment or repayment tobut excluding the last day of such Interest Period.

 

“Rent Roll”:  a schedule prepared by the Borrower fromtime to time identifying (i) the Real Property owned by the Borrower or itsSubsidiaries and stating whether such items of Real Property are UnencumberedAssets at such time, (ii) the annual base rent payable under each lease of RealProperty owned by the Borrower or any of its Subsidiaries, (iii) thecommencement and termination dates of the term of each such lease, (iv) anyrenewal options with respect to such lease, (v) the Net Rentable Area of thespace demised under each such lease and (vi) such other information as theAdministrative Agent may reasonably require.

 

“RequiredAdditional Guarantors”:  anySubsidiary required to execute and deliver a Guaranty pursuant to Section7.11(a).

 

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“RequiredLenders”:  (a) as of any dateon 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 exceedsfifty percent (50%).

 

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

 

“ResponsibleOfficial”: (a) when used with reference to a Person other than anindividual, any corporate officer of such Person, general partner or managingmember of such Person, corporate officer of a corporate general partner ormanaging member of such Person, or corporate officer of a corporate generalpartner of a partnership that is a general partner of such Person or corporatemanaging member of a limited liability company that is a managing member ofsuch Person, or any other responsible official thereof duly acting on behalfthereof, and (b) when used with reference to a Person who is anindividual, such Person.

 

“RestrictedPayment”:  as to any Person, anydividend or other distribution by such Person (whether in cash, securities orother property) with respect to any shares of any class of equity securities orbeneficial 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, cancellationor termination of any such shares or beneficial interests or any option,warrant or other right to acquire any such shares or beneficial interests.

 

“SeniorDebt Rating”:  the senior unsecurednon-credit-enhanced debt rating of the Borrower as determined by S&P and/orMoody’s from time to time.

 

“SpecialCounsel”:  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 (howeverdesignated) 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 otherbusiness entity (A) which is required pursuant to GAAP to be consolidatedwith such Person for financial reporting purposes, and (B) of which suchPerson, directly or indirectly, either (i) in respect of a corporation, owns orcontrols more than 50% of the outstanding Stock having ordinary voting power toelect a majority of the board of directors or similar managing body,irrespective of whether a class or classes shall or might have voting power byreason of the happening of any contingency, or (ii) in respect of anassociation,

 

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partnership, limited liabilitycompany, joint venture or other business entity (other than a corporation whichis provided for in (i) above), is entitled to share, either directly orindirectly through an entity described in clause (i) above, in more than 50% ofthe profits and losses, however determined (without taking into account returnsof capital to such Person as an equity investor or payment of fees to suchPerson for services rendered to such entity).

 

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

 

“SupermajorityLenders”: the Lender or Lenders whose aggregate Commitment Percentageexceeds sixty-six and two-thirds percent (66.67%).

 

“TangibleNet Worth”:  as of any date ofdetermination 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 ofthe Borrower and its Subsidiaries as at such date, minus (ii) the net bookvalue of all assets of the Borrower and its Subsidiaries on a Consolidatedbasis (to the extent reflected in the Consolidated balance sheet of theBorrower at such date) which would be treated as intangibles under GAAP,including, without limitation, goodwill (whether representing the excess costover book value of assets acquired or otherwise), patents, trademarks, tradenames, franchises, copyrights, licenses, service marks, rights with respect tothe foregoing and deferred charges (including, without limitation, unamortizeddebt discount and expense, organization costs and research and developmentcosts).

 

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

 

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

 

“UnencumberedAsset”:  any Operating Propertywhich Borrower desires to have treated as an Unencumbered Asset and which atany time (i) is wholly owned in fee simple by the Borrower, a direct orindirect wholly owned Subsidiary of the Borrower or a DownREIT Partnership (oris 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 anySubsidiary therein (other than Liens permitted under clauses (i), (ii), (iii),(iv), (v) (vi), (viii) and (ix) of Section 8.1), (iii) does not have applicableto it (or to any such Ground Lease) any restriction on the pledge, transfer,mortgage or assignment of such Operating Property or Ground Lease (includingany restriction imposed by the organizational documents of any such Subsidiaryor DownREIT Partnership, but excluding any requirement in a Ground Lease thatsuch Ground Lease be assumed upon the assignment thereof), (iv) if owned by anysuch Subsidiary or DownREIT Partnership, the Stock, partnership interests ormembership interests, as the case may be, of such Subsidiary or DownREITPartnership that are owned by the Borrower or any Subsidiary are not subject toany pledge or security interest in favor of any Person other than the Borroweror a Subsidiary Guarantor, (v) is not an Environmental Risk Property; (vi) doesnot have, to the best of the

 

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Borrower’s knowledge, anytitle, survey, or other defect which could reasonably be expected to materiallyand adversely affect the value, use, financeability or marketability thereof,and (vii) is located within the contiguous 48 states of the continental UnitedStates; and “Unencumbered Assets” means all such Unencumbered Assets,collectively.  The Unencumbered Assets(X) which are retail shopping centers shall on an aggregate basis have anoccupancy level of tenants in possession and operating and which are payingbase, minimum or similar regularly scheduled fixed payments of rent (but notpass-throughs of common area maintenance charges, operating expenses, taxes,insurance and similar charges) in accordance with the terms of their leases ofat least eighty percent (80%) of the Net Rentable Area within such UnencumberedAssets based on bona fide arms-length tenant leases requiring current rentalpayments, and (Y) which are residential apartments shall on an aggregatebasis have an occupancy level of tenants in possession and which are payingrent in accordance with the terms of their leases of at least eighty percent(80%) of the number of apartment units in such residential apartments withinsuch Unencumbered Assets based on bona fide arm’s-length tenant leasesrequiring current rental payments. Notwithstanding the foregoing, for the purposes of this Agreement, fromand after the EIG Acquisition Date a portion of the Operating Properties to beacquired by Borrower pursuant to the EIG Acquisition which are held on aninterim basis by an Exchange Accommodation Titleholder may be included asUnencumbered Assets for the purposes of this Agreement and shall be deemed tobe owned by Borrower in fee simple for the purposes of this Agreement, providedthat (A) all other conditions to such Operating Properties being UnencumberedAssets shall be satisfied (including, without limitation, the provisions ofclause (iv) above as the same would apply to such Exchange AccommodationTitleholder), (B) such Exchange Accommodation Titleholder acquires fee simpletitle to the assets for the purposes of facilitating an exchange pursuant toSection 1031 of the Code on behalf of Borrower or any of its wholly ownedSubsidiaries, (C) the Unencumbered Asset Value attributable to such assetsshall not exceed $200,000,000 at the time of such acquisition (provided thatsuch Exchange Accommodation Titleholder may acquire assets in excess of such$200,000,000 limit, but such assets over such limit shall not be included asUnencumbered Assets), (D) Administrative Agent approves the ExchangeAccommodation Titleholder, (E) Administrative Agent approves the structure anddocumentation for such transaction (which documentation shall not be modified,amended or terminated without Administrative Agent’s consent), and (F) suchOperating Properties shall not be included as Unencumbered Assets for more thanninety (90) days following the acquisition thereof by such ExchangeAccommodation Titleholder (provided, however, that Administrative Agent may in itsdiscretion extend such period (such consent not to be unreasonably withheld)for an additional ninety (90) days if Borrower has not been able to completeits like-kind exchange pursuant to Section 1031 of the Code).

 

“UnencumberedAssets Coverage Ratio”:  on any dateof determination the ratio of (i) the sum of all Adjusted Net Operating Incomefor all Unencumbered Assets of the Borrower and its Subsidiaries on aConsolidated basis, plus (without duplication) the Borrower’s Interest in allAdjusted Net Operating Income for all Unencumbered Assets owned by a DownREITPartnership, in each case, for the period of four (4) fiscal quarters justended prior to the date of determination, to (ii) the portion of theConsolidated Interest Expense (which excludes interest on unsecuredIndebtedness of Joint Ventures that are not Subsidiaries) consisting ofinterest on all unsecured Indebtedness of the Borrower and its Subsidiaries forsuch period.

 

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“UnencumberedAsset Value”:  as of any date thequotient of (i) an amount equal to the Adjusted Net Operating Income for allUnencumbered Assets in the aggregate for the four fiscal quarters of theBorrower most recently ending as of such date, divided by (ii) 9.5%. For purposesof any determination of Unencumbered Asset Value, the following limitations andmethodology shall apply:  (A) theAdjusted Net Operating Income of any Unencumbered Asset owned by a DownREITPartnership shall be based on the Borrower’s Interest in the Adjusted NetOperating Income for each such Unencumbered Asset for the four fiscal quartershaving most recently ended as of such date; (B) in the event more than 15% ofthe gross base rents payable under all leases for Properties of the Borrower,its Subsidiaries or a DownREIT Partnership (including the Borrower’s Interestin any Properties) shall be payable by one tenant and its Subsidiaries, thenUnencumbered Asset Value shall be reduced by the percentage amount of suchexcess multiplied by the Unencumbered Asset Value attributable to theProperties leased or controlled by such tenant and its Subsidiaries; and (C) inthe event that the Borrower or a Subsidiary of the Borrower shall not haveowned an Unencumbered Asset for the entire previous four fiscal quarters, thenfor the purposes of determining the Unencumbered Asset Value with respect tosuch Unencumbered Asset, the Adjusted Net Operating Income for suchUnencumbered Asset shall be annualized in a manner reasonably satisfactory tothe Administrative Agent, provided, however, that to the extent that a NewConstruction Asset or Redevelopment Asset becomes an Operating Property duringthe relevant period, the Adjusted Net Operating Income of such OperatingProperty during such period and the following periods shall be annualized untilsuch time as such Operating Property has performed as an Operating Property forfour (4) full fiscal quarters.

 

1.2           Other Definitional Provisions.

 

(a)           All terms defined in this Agreementshall have the meanings given such terms herein when used in the Loan Documentsor any certificate, opinion  or otherdocument made or delivered pursuant hereto or thereto, unless otherwise definedtherein.

 

(b)           As used in the Loan Documents and inany certificate, opinion or other document made or delivered pursuant hereto orthereto, accounting terms not defined in Section 1.1, and accounting termspartly defined in Section 1.1, to the extent not defined, shall have therespective meanings given to them under GAAP.

 

(c)           The words “hereof”, “herein”,“hereto” and “hereunder” and similar words when used in this Agreement shallrefer to this Agreement as a whole and not to any particular provision of thisAgreement, and Section, schedule and exhibit references contained herein shallrefer to Sections hereof or schedules or exhibits hereto unless otherwiseexpressly provided herein.

 

(d)           The word “or” shall not be exclusive;“may not” is prohibitive and not permissive.

 

(e)           Unless the context otherwiserequires, words in the singular number include the plural, and words in theplural include the singular.

 

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(f)            Unless specifically provided in aLoan 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 setforth in this Agreement, each of the Lenders severally agrees to lend to theBorrower on the Effective Date the aggregate principal amount of such Lender’sCommitment Amount, for the purposes set forth in Section 2.15.  On the Effective Date, the Total CommitmentAmount as of the Effective Date shall be disbursed to Borrower in a singleadvance.  The Loan shall be made prorata in accordance with each Lender’s Commitment Percentage.  The acceptance by Borrower of the Loanshereunder shall constitute a representation and warranty by the Borrower thatall of the conditions set forth in Section 5 have been satisfied.  No Lender shall have any obligation to makea 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 evidencedby a promissory note of the Borrower, substantially in the form of Exhibit H,with appropriate insertions therein as to date and principal amount (each, asendorsed or modified from time to time, a “Note” and, collectively withthe Notes of all other Lenders, the “Notes”), payable to the order ofsuch Lender for the account of its Applicable Lending Office in the initialprincipal face amount equal to the original amount of the Commitment of suchLender 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 aggregateunpaid principal balance of all Loans of such Lender, plus interest and otheramounts due and owing to the Lenders under the Loan Documents.

 

(b)           The Notes Generally.  Each Note shall bear interest from the datethereof on the unpaid principal balance thereof at the applicable interest rateor rates per annum determined as provided in Section 2.9 and shall be stated tomature on the Maturity Date.  Thefollowing information shall be recorded by each Lender on its books:  (i) the date and amount of the Loan of suchLender; (ii) its character as a Prime Rate Loan, a LIBOR Loan or a combinationthereof; (iii) the interest rate and Interest Period applicable to LIBOR Loans;and (iv) each payment and prepayment of the principal thereof; provided, thatthe failure of such Lender to make any such recordation or endorsement shallnot affect the obligations of the Borrower to make payment when due of anyamount owing under the Loan Documents.

 

(c)           By delivery of the Notes, there shallnot be deemed to have occurred, and there has not otherwise occurred, anypayment, satisfaction or novation of the indebtedness evidenced by the “Notes”as defined in the Original Loan Agreement, which indebtedness is insteadallocated among the Banks as of the date hereof and evidenced by the Notes in accordancewith their respective Commitment Percentages.

 

2.3           Procedure for Loan Borrowings.

 

(a)           Intentionally Omitted.

 

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(b)           Intentionally Omitted.

 

(c)           Intentionally Omitted.

 

(d)           Funding of Loans.  Each Lender will make its Loan, in an amountequal to its Commitment Amount, available to the Administrative Agent for theaccount of the Borrower at the office of the Administrative Agent set forth inSection 11.2 not later than 12:00 noon, Massachusetts time, on the BorrowingDate in funds immediately available to the Administrative Agent at suchoffice.  The amounts so made availableto the Administrative Agent on the Borrowing Date will then, subject to thesatisfaction of the terms and conditions of this Agreement, as determined bythe Administrative Agent, be made available on such date to the Borrower by theAdministrative Agent at the office of the Administrative Agent specified inSection 11.2 by crediting the account of the Borrower on the books of suchoffice with the aggregate of said amounts received by the Administrative Agent.

 

(e)           Intentionally Omitted.

 

(f)            Administrative Agent’s Assumption.  Unless the Administrative Agent shall havereceived prior notice from a Lender (by telephone or otherwise, such notice tobe promptly confirmed by telecopy or other writing) that such Lender will notmake available to the Administrative Agent such Lender’s pro rata share of theLoans, the Administrative Agent may assume that such Lender has made such shareavailable to the Administrative Agent on the Borrowing Date in accordance withthis Section, provided that such Lender received notice of the proposedborrowing from the Administrative Agent, and the Administrative Agent may, inreliance upon such assumption, make available to the Borrower on the BorrowingDate a corresponding amount.  If and tothe extent such Lender shall not have so made such pro rata share available tothe Administrative Agent, such Lender and the Borrower severally agree to payto the Administrative Agent forthwith on demand such corresponding amount (tothe extent not previously paid by the other), together with interest thereonfor each day from the date such amount is made available to the Borrower untilthe date such amount is paid to the Administrative Agent, at a rate per annumequal to, in the case of the Borrower, the applicable interest rate set forthin Section 2.9 for Prime Rate Loans or LIBOR Loans, as initially requested byBorrower, and, in the case of such Lender, the Federal Funds Rate in effect oneach such day (as determined by the Administrative Agent).  Such payment by the Borrower, however, shallbe without prejudice to its rights against such Lender.  If such Lender shall pay to theAdministrative Agent such corresponding amount, such amount so paid shallconstitute such Lender’s Loan as part of the Loans for purposes of thisAgreement, which Loan shall be deemed to have been made by such Lender on theBorrowing Date applicable to such Loans, but without prejudice to theBorrower’s rights against such Lender.

 

2.4           [Intentionally Omitted].

 

2.5           [Intentionally Omitted].

 

2.6           Repayment of Loans; Evidence of Debt.

 

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(a)           Promise to Pay.  The Borrower hereby unconditionally promisesto pay to the Administrative Agent for the account of each Lender the thenunpaid principal amount of each Loan on the Maturity Date.

 

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

 

(c)           Administrative Agent’s Accounts.  The Administrative Agent shall maintainaccounts 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 andpayable from the Borrower to each Lender hereunder and (iii) the amount of anyother sum received by the Administrative Agent hereunder for the account of theLenders and each Lender’s share thereof.

 

(d)           Entries Made in Accounts.  The entries made in the accounts maintainedpursuant to paragraphs (b) and (c) of this Section shall, to the extent notinconsistent with any entries made in any Note and absent manifest error, beprima facie evidence of the existence and amounts of the obligations recordedtherein, provided that the failure of any Lender, or the Administrative Agentto maintain such accounts or any error therein shall not in any manner affectthe obligation of the Borrower to repay the Loans in accordance with the termsof this Agreement.

 

(e)           Loans Evidenced by Notes.  The Loans and interest thereon shall at alltimes (including after assignment pursuant to Section 11.7) be represented byone or more Notes in like form payable to the order of the payee named thereinand its registered assigns.

 

2.7           Prepayments of the Loans.

 

(a)           Voluntary Prepayments. TheBorrower may, at its option, prepay the Prime Rate Loans and LIBOR Loans, inwhole or in part, without premium or penalty (other than any indemnificationamounts, as provided for in Section 2.14) at any time and from time to time bynotifying the Administrative Agent in writing at least one Business Day priorto the proposed prepayment date in the case of Loans consisting of Prime RateLoans and at least three Business Days prior to the proposed prepayment date inthe case of Loans consisting of LIBOR Loans, specifying the Loans to be prepaidconsisting of Prime Rate Loans, LIBOR Loans or a combination thereof, theamount to be prepaid and the date of prepayment.  Such notice shall be irrevocable and the amount specified in suchnotice shall be due and payable on the date specified, together with accruedinterest to the date of such payment on the amount prepaid.  Upon receipt of such notice, the AdministrativeAgent shall promptly notify each Lender in respect thereof.  Partial prepayments of Prime Rate Loansand/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 partialprepayment with respect to LIBOR Loans which were converted on the same dateand which had the same Interest Period, the outstanding principal amount ofsuch LIBOR

 

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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 Loansprepaid shall not be readvanced.

 

(b)           In General. If any prepaymentis made in respect of any Advance, in whole or in part, prior to the last dayof the applicable Interest Period, the Borrower agrees to indemnify the Lendersin accordance with Section 2.14.

 

(c)           Partial Prepayments.  Each partial prepayment of the Loans (otherthan Prime Rate Loans) under Section 2.7(a) shall be accompanied by the paymentof accrued interest on the principal prepaid to the date of payment and, afterpayment of such interest, shall be applied, in the absence of instruction bythe 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 toconvert LIBOR Loans to Prime Rate Loans by giving the Administrative Agent atleast one Business Day’s prior irrevocable notice of such election, specifyingthe amount to be so converted, provided, that any such conversion of LIBORLoans shall only be made on the last day of the Interest Period applicablethereto.  In addition, the Borrower mayelect from time to time to convert Prime Rate Loans to LIBOR Loans or toconvert LIBOR Loans to new LIBOR Loans by giving the Administrative Agent atleast two Business Days’ prior irrevocable notice of such election, specifyingthe 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 onlybe made on a Business Day and any such conversion of LIBOR Loans to new LIBORLoans shall only be made on the last day of the Interest Period applicable tothe LIBOR Loans which are to be converted to such new LIBOR Loans.  Each such notice shall be in the form of ExhibitM and must be delivered to the Administrative Agent prior to 12:00 noon onthe Business Day required by this Section for the delivery of such notices tothe Administrative Agent.  TheAdministrative Agent shall promptly provide the Lenders with notice of any suchelection.  Prime Rate Loans and LIBORLoans may be converted pursuant to this Section in whole or in part, providedthat conversions of Prime Rate Loans to LIBOR Loans, or LIBOR Loans to newLIBOR Loans, shall be in an aggregate principal amount of $5,000,000 or suchamount plus a whole multiple of $100,000 in excess thereof.

 

(b)           Effect on Conversions if an Eventof Default.  Notwithstandinganything in this Section to the contrary, no Prime Rate Loan may be convertedto a LIBOR Loan, and no LIBOR Loan may be converted to a new LIBOR Loan, if aDefault or Event of Default has occurred and is continuing either (i) at thetime the Borrower shall notify the Administrative Agent of its election toconvert or (ii) on the requested Conversion Date.  In such event, such Prime Rate Loan shall be automaticallycontinued as a Prime Rate Loan or such LIBOR Loan shall be automaticallyconverted to a Prime Rate Loan on the last day of the Interest Periodapplicable to such LIBOR Loan.

 

(c)           Conversion not a Borrowing.  Each conversion shall be effected by eachLender by applying the proceeds of its new Prime Rate Loan or LIBOR Loan, asthe case may

 

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be, to its Advances (or portionthereof) being converted (it being understood that such conversion shall notconstitute 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 Section2.9(b), prior to the Maturity Date, the Loans shall bear interest on theoutstanding principal balance thereof at the applicable interest rate or ratesper 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 thecontinuance of an Event of Default, the outstanding principal balance of (a)the LIBOR Rate Loans and any overdue interest with respect thereto shall bearinterest, whether before or after the entry of any judgment thereon, at a rateper annum equal to LIBOR for the applicable Interest Period plus the ApplicableMargin plus 2% (b) the Prime Rate Loans and any overdue interest with respectthereto 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 annumequal to the Prime Rate plus 2%.

 

(c)           Interest Payment Dates.  Accrued interest on each Loan shall bepayable in arrears on each Interest Payment Date for such Loan, provided that(i) interest accrued pursuant to paragraph (b) of this Section shall be payableon 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 onthe date of such repayment or prepayment and (iii) in the event of anyconversion of any LIBOR Loans prior to the end of the current Interest Periodtherefor, accrued interest on such Loan shall be payable on the effective dateof such conversion.

 

(d)           General.  Interest on (i) Prime Rate Loans shall becalculated on the basis of a 365-day year and (ii) LIBOR Loans shall becalculated on the basis of a 360-day year, in each case for the actual numberof days elapsed, including the first day but excluding the last.  Any change in the interest rate on the Loansresulting from a change in the Prime Rate or a Pricing Level shall becomeeffective as of the opening of business on the day on which such change shallbecome effective.  The AdministrativeAgent shall, as soon as practicable, notify the Borrower and the Lenders of theeffective date and the amount of each such change in the Prime Rate or aPricing Level, but any failure to so notify shall not in any manner affect theobligation of the Borrower to pay interest on the Loans in the amounts and onthe dates required.  Each determinationof the Prime Rate, a LIBOR or a Pricing Level by the Administrative Agentpursuant to this Agreement shall be conclusive and binding on the Borrower andthe Lenders

 

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absent manifest error.  At no time shall the interest rate payableon the Loans of any Lender, together with the Facility Fee and all otheramounts payable under the Loan Documents, to the extent the same are construedto constitute interest, exceed the Highest Lawful Rate.  If interest payable to a Lender on any datewould exceed the maximum amount permitted by the Highest Lawful Rate, suchinterest payment shall automatically be reduced to such maximum permittedamount, and interest for any subsequent period, to the extent less than themaximum amount permitted for such period by the Highest Lawful Rate, shall beincreased by the unpaid amount of such reduction.  Any interest actually received for any period in excess of suchmaximum allowable amount for such period shall be deemed to have been applied asa prepayment of the Loans.  The Borroweracknowledges that the Prime Rate is only one of the bases for computinginterest on loans made by the Lenders, and by basing interest payable on PrimeRate Loans on the Prime Rate, the Lenders have not committed to charge, and theBorrower has not in any way bargained for, interest based on a lower or thelowest rate at which the Lenders may now or in the future make loans to otherborrowers.

 

2.10         Substituted Interest Rate.

 

In the eventthat (i) the Administrative Agent shall have reasonably determined (whichdetermination shall be conclusive and binding upon the Borrower) that by reasonof circumstances affecting the interbank eurodollar market adequate andreasonable means do not exist for ascertaining the LIBOR applicable pursuant toSection 2.9 or (ii) the Required Lenders shall have notified the AdministrativeAgent that they have reasonably determined (which determination shall beconclusive and binding on the Borrower) that the applicable LIBOR will not adequatelyand fairly reflect the cost to such Lenders of maintaining or funding loansbearing interest based on such LIBOR, with respect to any portion of the Loansthat the Borrower has requested be made as LIBOR Loans or LIBOR Loans that willresult from the requested conversion of any portion of the Advances into LIBORLoans (each, an “Affected Advance”), the Administrative Agent shall promptlynotify the Borrower and the Lenders (by telephone or otherwise, to be promptlyconfirmed in writing) of such determination, on or, to the extent practicable,prior to the requested Borrowing Date or Conversion Date for such AffectedAdvances.  If the Administrative Agentshall give such notice, (a) any Affected Advances shall be made as Prime RateLoans, (b) the Advances (or any portion thereof) that were to have beenconverted to Affected Advances shall be converted to or continued as Prime RateLoans and (c) any outstanding Affected Advances shall be converted, on the lastday of the then current Interest Period with respect thereto, to Prime RateLoans.  Until any notice under clauses(i) or (ii), as the case may be, of this Section has been withdrawn by theAdministrative Agent (by notice to the Borrower promptly upon either (x) theAdministrative Agent having determined that such circumstances affecting theLIBOR market no longer exist and that adequate and reasonable means do existfor determining the LIBOR pursuant to Section 2.9 or (y) the AdministrativeAgent having been notified by such Required Lenders that circumstances nolonger render the Advances (or any portion thereof) Affected Advances), nofurther LIBOR Loans shall be required to be made by the Lenders nor shall theBorrower have the right to convert all or any portion of the Loans to LIBORLoans.

 

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2.11         Taxes; Net Payments.

 

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

 

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

 

2.12         Illegality.

 

Notwithstandingany other provisions herein, if any law, regulation, treaty or directivehereafter enacted, promulgated, approved or issued, or any change in anypresently existing law, regulation, treaty or directive, or in theinterpretation or application thereof, shall make it unlawful for any CreditParty to make or maintain its LIBOR Loans as contemplated by this Agreement,such Credit Party shall so notify the Administrative Agent and theAdministrative Agent shall forthwith give notice thereof to the other CreditParties and the Borrower, whereupon (i) the commitment of such Credit Partyhereunder to make LIBOR Loans or convert Prime Rate Loans to LIBOR Loans shallforthwith be suspended and (ii) such Credit Party’s Loans then outstanding asLIBOR Loans affected hereby, if any, shall be converted automatically to PrimeRate Loans on the last day of the then current Interest Period applicablethereto or within such earlier period as required by law.  If the commitment of any Credit Party withrespect to LIBOR Loans is suspended pursuant to this Section and thereafter itis once again legal for such Credit Party to make or maintain LIBOR Loans, suchCredit Party’s commitment to make or maintain LIBOR Loans shall be reinstatedand such Credit Party shall notify the Administrative Agent and the Borrower ofsuch event.  Notwithstanding theforegoing, to the extent that the conditions giving rise to the noticerequirement set forth in this Section can be eliminated by the transfer of suchCredit Party’s Loans or Commitment to another of its branches, and to theextent that such transfer is not inconsistent with such Credit Party’s internalpolicies of general application and only if, as determined by such Credit Partyin its sole discretion, the transfer of such Loan or Commitment, as the casemay be, would not otherwise adversely affect such Loans or such Credit Party, theBorrower may request, and such Credit Party shall use reasonable efforts toeffect, such transfer.

 

2.13         Increased Costs.

 

In the eventthat 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 byany Governmental Authority charged

 

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with the administration thereofor compliance by any Credit Party (or any corporation directly or indirectlyowning or controlling such Credit Party) with any request or directive, whetheror not having the force of law, from any central bank or other GovernmentalAuthority, agency or instrumentality:

 

(a)           does or shall subject any CreditParty to any Taxes of any kind whatsoever with respect to any LIBOR Loans orits obligations under this Agreement to make LIBOR Loans, or change the basisof taxation of payments to any Credit Party of principal, interest or any otheramount payable hereunder in respect of its LIBOR Loans, including any Taxesrequired to be withheld from any amounts payable under the Loan Documents(except for (i) imposition of, or change in the rate of, tax on theoverall net income of such Credit Party or its Applicable Lending Office forany of such Advances by any jurisdiction, including, in the case of CreditParties incorporated in any State of the United States, such tax imposed by theUnited States and (ii) any franchise, unincorporated business or gains taxes);or

 

(b)           does or shall impose, modify or makeapplicable any reserve, special deposit, compulsory loan, assessment, increasedcost or similar requirement against assets held by, or deposits of, or advancesor 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 thecase of LIBOR Loans, is not otherwise included in the determination of theLIBOR;

 

and the resultof 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 commitmentto make such LIBOR Loans, or to reduce any amount receivable hereunder inrespect of its LIBOR Loans, then, in any such case, the Borrower shall pay suchCredit Party, upon its demand, any additional amounts necessary to compensatesuch Credit Party for such additional cost or reduction in such amountreceivable which such Credit Party deems to be material as reasonably determinedby such Credit Party; provided, however, that nothing in this Section shallrequire the Borrower to indemnify the Credit Parties with respect towithholding Taxes for which the Borrower has no obligation under Section 2.11.  No failure by any Credit Party to demandcompensation for any increased cost during any Interest Period shall constitutea waiver of such Credit Party’s right to demand such compensation at anytime.  A statement setting forth thecalculations of any additional amounts payable pursuant to the foregoingsentence submitted by a Credit Party to the Borrower shall be conclusive absentmanifest error.  The obligations of theBorrower under this Section shall survive the termination of this Agreement andany of the Commitments or the payment of the Notes and all other amountspayable under the Loan Documents for a period of one hundred eighty (180) daysand shall thereafter terminate forever. Failure to demand compensation pursuant to this Section shall notconstitute a waiver of such Credit Party’s right to demand suchcompensation.  To the extent that anyincreased costs of the type referred to in this Section are being incurred by aCredit Party and such costs can be eliminated or reduced by the transfer ofsuch Credit Party’s Loans or Commitment to another of its branches, and to theextent that such transfer is not inconsistent with such Credit Party’s internalpolicies of general application and only if, as determined by such Credit Partyin its sole discretion, the transfer of such Loan or Commitment, as the casemay be, would not otherwise materially adversely affect such Loan or suchCredit Party, the Borrower may request, and such Lender shall use reasonableefforts to effect, such transfer.

 

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2.14         Indemnification for Break FundingLosses.

 

Notwithstandinganything contained herein to the contrary, if (i) the Borrower shall fail toborrow on the Borrowing Date, if it shall have requested a LIBOR Loan, or shallfail to convert on a Conversion Date, after it shall have given notice to do soin 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 lastday of the Interest Period applicable thereto (including, without limitation,any mandatory prepayment or a prepayment resulting from acceleration orillegality), the Borrower agrees to indemnify each Credit Party against, and topay on demand directly to such Credit Party, any loss or expense suffered bysuch Credit Party as a result of such failure to borrow or convert, or suchtermination or repayment, including, without limitation, an amount, if greaterthan zero, equal to:

 

| A      | x      | (B-C) | x  D |
|--------|--------|-------|-----------|
|   |   | 360   |      |

 

where:

 

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

 

“B” equals the applicable LIBOR;

 

“C” equals the applicable LIBOR (expressed as a decimal) in effect onor about the first day of the applicable Remaining Interest Period, based onthe 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 ratashare of the Affected Principal Amount with an Interest Period equalapproximately to the applicable Remaining Interest Period, as determined bysuch Credit Party;

 

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

 

and any otherout-of-pocket loss or expense (including any internal processing chargecustomarily charged by such Credit Party) suffered by such Credit Party inconnection with such LIBOR Loan including, without limitation, in liquidatingor employing deposits acquired to fund or maintain the funding of its pro ratashare of the Affected Principal Amount, or redeploying funds prepaid or repaid,in amounts which correspond to its pro rata share of the Affected PrincipalAmount.  A statement setting forth thecalculations of any amounts payable pursuant to this Section submitted by aCredit Party to the Borrower shall be conclusive and binding on the Borrowerabsent manifest error.  The obligationsof the Borrower under this Section shall survive the termination of thisAgreement and the Commitments and the payment of the Notes and all otheramounts payable under the Loan Documents.

 

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2.15         Use of Proceeds.

 

The proceeds of Loans shall beused solely for (i) partial financing for the EIG Acquisition; and (ii) generalbusiness purposes, including, without limitation, working capital.

 

2.16         Capital Adequacy.

 

If (i) afterthe date hereof, the enactment or promulgation of, or any change or phasing inof, any United States or foreign law or regulation or in the interpretationthereof by any Governmental Authority charged with the administration thereof,(ii) compliance with any directive or guideline from any central bank or UnitedStates or foreign Governmental Authority (whether or not having the force oflaw) promulgated or made after the date hereof, or (iii) compliance with theRisk-Based Capital Guidelines of the Board of Governors of the Federal ReserveSystem as set forth in 12 CFR Parts 208 and 225, or of the Comptroller of theCurrency, Department of the Treasury, as set forth in 12 CFR Part 3, or similarlegislation, rules, guidelines, directives or regulations under any applicableUnited States or foreign Governmental Authority affects or would affect theamount of capital required to be maintained by a Credit Party (or any lendingoffice of such Credit Party) or any corporation directly or indirectly owningor controlling such Credit Party or imposes any restriction on or otherwiseadversely affects such Credit Party (or any lending office of such CreditParty) or any corporation directly or indirectly owning or controlling suchCredit Party and such Credit Party shall have reasonably determined that suchenactment, promulgation, change or compliance has the effect of reducing therate of return on such Credit Party’s capital or the asset value to such CreditParty of any Loan made by such Credit Party as a consequence, directly orindirectly, of its obligations to make and maintain the funding of its Loans ata level below that which such Credit Party could have achieved but for suchenactment, promulgation, change or compliance (after taking into account suchCredit Party’s policies regarding capital adequacy) by an amount deemed by suchCredit Party to be material, then, upon demand by such Credit Party, theBorrower shall promptly pay to such Credit Party such additional amount oramounts as shall be sufficient to compensate such Credit Party for suchreduction in such rate of return or asset value.  A certificate in reasonable detail as to such amounts submittedto the Borrower and the Administrative Agent setting forth the determination ofsuch amount or amounts that will compensate such Credit Party for suchreductions shall be presumed correct absent manifest error.  No failure by any Credit Party to demandcompensation for such amounts hereunder shall constitute a waiver of suchCredit Party’s right to demand such compensation at any time.  Such Credit Party shall, however, usereasonable efforts to notify the Borrower of such claim within 90 days afterthe officer of such Credit Party having primary responsibility for thisAgreement has obtained knowledge of the events giving rise to such claim.  The obligations of the Borrower under thisSection shall survive the termination of this Agreement and the Commitments andthe payment of the Notes and all other amounts payable under the LoanDocuments.

 

2.17         Administrative Agent’s Records.

 

TheAdministrative Agent’s records with respect to the Loans, the interest ratesapplicable thereto, each payment by the Borrower of principal and interest onthe Loans, and fees, expenses and any other amounts due and payable inconnection with this Agreement shall be presumptively correct absent manifesterror as to the amount of the Loans, and the amount of

 

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principal and interest paid bythe Borrower in respect of such Loans and as to the other information relatingto the Loans, and amounts paid and payable by the Borrower hereunder and underthe Notes.  The Administrative Agentwill when requested by the Borrower advise the Borrower of the principal andinterest outstanding under the Loans as of the date of such request and thedates on which such payments are due.

 

3.             FEES; PAYMENTS.

 

3.1           FNB Fee.

 

(a)           The Borrower agrees to pay to FNB andLead 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 acommitment and loan structuring fee in accordance with their separateagreement.

 

(b)           The Borrower agrees to pay any otherfees payable to any Credit Party under any separate agreement at the times soagreed upon in such separate agreements.

 

(c)           The FNB Fee shall be paid on the datedue, in immediately available funds, to FNB. The FNB Fee and all other fees and amounts paid shall not be refundableunder any circumstances.

 

3.2           Payments; Application of Payments.

 

Each payment,including each prepayment, of principal and interest on the Loans and the FNBFee, the Administrative Agent’s fees, and any other amounts due hereunder shallbe made by the Borrower to the Administrative Agent or FNB, as applicable,without set-off, deduction or counterclaim, at its office set forth in Section11.2 in funds immediately available to the Administrative Agent at such officeby 12:00 noon on the due date for such payment.  Promptly upon receipt thereof by the Administrative Agent, theAdministrative Agent shall remit, in like funds as received, to the Lenders whomaintain any of their Loans as Prime Rate Loans or LIBOR Loans, each suchLender’s pro rata share of such payments which are in respect of principal orinterest due on such Prime Rate Loans or LIBOR Loans.  The failure of the Borrower to make any such payment by such timeshall not constitute a default hereunder, provided that such payment is made onsuch due date, but any such payment made after 12:00 noon on such due dateshall be deemed to have been made on the next Business Day for the purpose ofcalculating interest on amounts outstanding on the Loans.  If any payment hereunder or under the Notesshall be due and payable on a day which is not a Business Day, the due datethereof (except as otherwise provided in the definition of Interest Period)shall be extended to the next Business Day and interest shall be payable at theapplicable rate specified herein during such extension.  If any payment is made with respect to anyLIBOR Loans prior to the last day of the applicable Interest Period, theBorrower shall indemnify each Lender in accordance with Section 2.14.

 

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4.             REPRESENTATIONS AND WARRANTIES.

 

In order toinduce the Administrative Agent and the Lenders to enter into this Agreementand to make the Loans the Borrower makes the following representations andwarranties to the Administrative Agent and each Lender:

 

4.1           Existence and Power.

 

(a)           The Borrower (i) is a Marylandcorporation duly organized and validly existing and in good standing under thelaws of Maryland, (ii) has all requisite power and authority to own itsProperty and to carry on its business as now conducted, and (iii) is ingood standing and authorized to do business in each jurisdiction in which thenature of the business conducted therein or the Property owned therein makesuch qualification necessary, except where such failure to qualify could notreasonably 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, isvalidly existing and in good standing under the laws of the jurisdiction of itsorganization and has all requisite power and authority to own its Property andto carry on its business as now conducted, and (ii) is in good standingand authorized to do business in each other jurisdiction in which the nature ofthe business conducted therein or the Property owned therein make suchqualification necessary, except where such failure to qualify could notreasonably be expected to have a Material Adverse Effect.

 

4.2           Authority.

 

The Borrower has full legalpower and authority to enter into, execute, deliver and perform the terms ofthe Loan Documents to which it is a party and to make the borrowingscontemplated thereby, to execute, deliver and carry out the terms of the Notesand to incur the obligations provided for herein and therein, all of which havebeen duly authorized by all proper and necessary corporate action.

 

4.3           Binding Agreement.

 

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

 

(b)           The execution, delivery andperformance by the Borrower of the Loan Documents to which it is a party do notviolate the provisions of any applicable statute, law (including, withoutlimitation, any applicable usury or similar law), rule or regulation of anyGovernmental Authority.

 

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4.4           Subsidiaries; DownREIT Partnerships.

 

As of theEffective 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 Borrowerand identifies each Subsidiary that is a Subsidiary Guarantor, in each case asof the Effective Date. The shares of each corporate Subsidiary of the Borrowerthat are owned by the Borrower are duly authorized, validly issued, fully paidand nonassessable and are owned free and clear of any Liens.  The interest of the Borrower in eachnon-corporate Subsidiary is owned free and clear of any Liens (other than Liensapplicable to a partner under the terms of any partnership agreement, or thoseapplicable to a member under the terms of any limited liability companyoperating agreement,  to secure theBorrower’s obligation to make capital contributions or similar paymentsthereunder).  As of the Effective Date,the only DownREIT Partnership is Excel Realty Partners, L.P.  As of the Effective Date, there is noSubsidiary of the Borrower (other than ERT Development Corporation) that is aguarantor of any unsecured Indebtedness of Borrower (other than the Loans) thatis not also a Subsidiary Guarantor.

 

4.5           Litigation.

 

(a)           There are no actions, suits or proceedingsat law or in equity or by or before any Governmental Authority (whether or notpurportedly on behalf of the Borrower or any Subsidiary of the Borrower)pending or, to the knowledge of the Borrower, threatened against the Borroweror any Subsidiary of the Borrower or any of their respective Properties orrights, which (i) if adversely determined, could reasonably be expected to havea Material Adverse Effect, (ii) call into question the validity orenforceability of any of the Loan Documents, or (iii) could reasonably beexpected to result in the rescission, termination or cancellation of anyfranchise, right, license, permit or similar authorization held by the Borroweror any Subsidiary of the Borrower, which rescission, termination orcancellation could reasonably be expected to have a Material Adverse Effect.

 

(b)           As of the date hereof, Schedule4.5 sets forth all actions, suits and proceedings at law or in equity or byor before any Governmental Authority (whether or not purportedly on behalf ofthe Borrower or any Subsidiary of the Borrower) pending or, to the knowledge ofthe Borrower, threatened against the Borrower, any Subsidiary of the Borroweror 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 isrequired to be obtained by the Borrower to authorize, or is required inconnection with the execution, delivery and performance of the Loan Documentsor is required to be obtained by the Borrower as a condition to the validity orenforceability of the Loan Documents.

 

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4.7           No Conflicting Agreements.

 

Neither theBorrower nor any Subsidiary of the Borrower is in default beyond any applicablegrace or cure period under any mortgage, indenture, contract or agreement towhich it is a party or by which it or any of its Property is bound, the effectof which default could reasonably be expected to have a Material AdverseEffect.  The execution, delivery orcarrying out of the terms of the Loan Documents will not constitute a defaultunder, or result in the creation or imposition of, or obligation to create, anyLien upon any Property of the Borrower or any Subsidiary of the Borrowerpursuant to the terms of any such mortgage, indenture, contract or agreement.

 

4.8           Compliance with Applicable Laws.

 

Neither theBorrower nor any Subsidiary of the Borrower is in default with respect to anyjudgment, order, writ, injunction, decree or decision of any GovernmentalAuthority which default could reasonably be expected to have a Material AdverseEffect. The Borrower and each Subsidiary of the Borrower is in compliance inall material respects with all statutes, regulations, rules and ordersapplicable to Borrower or such Subsidiary of all Governmental Authorities,including, without limitation, (i) Environmental Laws and ERISA, a violation ofwhich could reasonably be expected to have a Material Adverse Effect and (ii)§§856-860 of the Code, compliance with which is required to preserve theBorrower’s status as a REIT.

 

4.9           Taxes.

 

Each of theBorrower and its Subsidiaries has filed or caused to be filed all tax returnsrequired to be filed and has paid, or has filed appropriate extensions and hasmade adequate provision for the payment of, all taxes shown to be due andpayable on said returns or in any assessments made against it (other than thosebeing contested as permitted under Section 7.4) in which the failure to paycould reasonably be expected to have a Material Adverse Effect, and no taxLiens have been filed with respect thereto. The charges, accruals and reserves on the books of the Borrower and eachSubsidiary of the Borrower with respect to all federal, state, local and othertaxes are, to the best knowledge of the Borrower, adequate for the payment ofall such taxes, and the Borrower knows of no unpaid assessment which is due andpayable against it or any of its Subsidiaries or any claims being assertedwhich could reasonably be expected to have a Material Adverse Effect.

 

4.10         Governmental Regulations.

 

Neither theBorrower nor any Subsidiary of the Borrower is subject to regulation under thePublic 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 theBorrower nor any Subsidiary of the Borrower is subject to any statute orregulation which prohibits or restricts the incurrence of Indebtedness underthe Loan Documents, including, without limitation, statutes or regulationsrelative to common or contract carriers or to the sale of electricity, gas,steam, water, telephone, telegraph or other public utility services.

 

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4.11         Federal Reserve Regulations; Use ofLoan Proceeds.

 

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

 

4.12         Plans; Multiemployer Plans.

 

As of theEffective Date, each of the Borrower and its ERISA Affiliates maintains ormakes contributions only to the Plans and Multiemployer Plans listed on Schedule4.12.  Each Plan, and, to the bestknowledge of the Borrower, each Multiemployer Plan, is in compliance in allmaterial respects with, and has been administered in all material respects incompliance with, the applicable provisions of ERISA, the Code and any otherapplicable Federal or state law, and no event or condition is occurring orexists concerning which the Borrower would be under an obligation to furnish areport to the Administrative Agent and each Lender as required by Section7.2(d).  As of September 30, 2002, eachPlan was “fully funded”, which for purposes of this Section means that the fairmarket value of the assets of such Plan is not less than the present value ofthe accrued benefits of all participants in the Plan, computed on a plantermination basis.  To the bestknowledge of the Borrower, no Plan has ceased being fully funded.

 

4.13         Financial Statements.

 

The Borrowerhas heretofore delivered to the Administrative Agent and the Lenders (i) copiesof the audited Consolidated Balance Sheet of the Borrower and its ConsolidatedSubsidiaries as of December 31, 2001, and the Consolidated Statements ofOperations, Stockholders’ Equity and Cash Flows for the Borrower and itsConsolidated Subsidiaries for the six months ended June 30, 2002 and (ii) theConsolidated Statements of Income and Cash Flows for the Borrower and itsConsolidated Subsidiaries for the six months ending June 30, 2002, certified byits Chief Financial Officer (collectively, with the related notes andschedules, the “Financial Statements”). The Financial Statements fairly present in all material respects theConsolidated financial condition and results of the operations of the Borrowerand its Consolidated Subsidiaries as of the dates and for the periods indicatedtherein and have been prepared in conformity with GAAP.  Except as reflected in the FinancialStatements or in the notes thereto, neither the Borrower nor any Subsidiary ofthe 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 andwas not.  Since June 30, 2002 there hasbeen no material adverse change in the condition (financial or otherwise),operations, prospects or business of the Borrower and its Subsidiaries taken asa whole.

 

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4.14         Property.

 

Each of theBorrower and its Subsidiaries has good and marketable title to all of itsProperty, 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 orassessments on or against any Real Property other than (i) real estate or othertaxes or assessments that are not yet due and payable, and (ii) such taxes asthe Borrower or any Subsidiary of the Borrower is contesting in good faith orwhich individually or in the aggregate could not reasonably be expected to havea Materially Adverse Effect.  There areno pending eminent domain proceedings against any Real Property, and, to theknowledge of the Borrower, no such proceedings are presently threatened or contemplatedby any Governmental Authority against any Real Property, which pending,threatened or contemplated proceedings individually or in the aggregate, couldreasonably be expected to have a Material Adverse Effect.  None of the Real Property is now damaged asa result of any fire, explosion, accident, flood or other casualty whichindividually or in the aggregate could reasonably be expected to have aMaterial Adverse Effect.

 

4.15         Franchises, Intellectual Property,Etc.

 

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

 

4.16         Environmental Matters.

 

(a)           The Borrower and each of itsSubsidiaries is in compliance with the requirements of all applicableEnvironmental Laws except for such non-compliance which could not, eitherindividually or in the aggregate, reasonably be expected to have a MaterialAdverse Effect.

 

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

 

(c)           Neither the Borrower nor any of itsSubsidiaries (i) has received notice (written or oral) or otherwise learned ofany claim, demand, suit, action, proceeding, event, condition, report, directive,lien, violation, non-compliance or investigation indicating or concerning anypotential or actual liability (including, without limitation, potentialliability for

 

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enforcement, investigatorycosts, 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 therequirements of any applicable Environmental Laws, or (y) the presence of anyHazardous Substance on any Real Property (or any Real Property previously ownedby the Borrower or any Subsidiary of the Borrower) or the release or threatenedrelease of any Hazardous Substance into the environment which, in either case,could, either individually or in the aggregate, reasonably be expected to havea Material Adverse Effect, (ii) has any threatened or actual liability inconnection with the presence of any Hazardous Substance on any Real Property(or any Real Property previously owned by the Borrower or any Subsidiary of theBorrower) or the release or threatened release of any Hazardous Substance intothe environment which, in either case, could, either individually or in theaggregate, reasonably be expected to have a Material Adverse Effect, (iii) hasreceived notice of any federal or state investigation evaluating whether anyremedial action is needed to respond to the presence of any Hazardous Substanceon any Real Property (or any Real Property previously owned by the Borrower orany Subsidiary of the Borrower) or a release or threatened release of anyHazardous Substance into the environment for which the Borrower or anySubsidiary of the Borrower is or may be liable the results of which could, ineither case, either individually or in the aggregate, reasonably be expected tohave a Material Adverse Effect, or (iv) has received notice that the Borroweror any Subsidiary of the Borrower is or may be liable to any Person under anyEnvironmental Law which liability could, either individually or in theaggregate, reasonably be expected to have a Material Adverse Effect.

 

(d)           To the best of the Borrower’sknowledge, no Real Property is located in an area identified by the Secretaryof Housing and Urban Development as an area having special flood hazards, or ifany such Real Property is located in such a special flood hazard area, then theBorrower has obtained all insurance that is required to be maintained by law orwhich is customarily maintained by Persons engaged in similar businesses andowning similar Properties in the same general areas in which the Borroweroperates.

 

4.17         Labor Relations.

 

Neither theBorrower nor any of its Subsidiaries is a party to any collective bargainingagreement, other than the collective bargaining agreement covering fewer than10 employees at the Roosevelt Mall Shopping Center in Philadelphia,Pennsylvania, and, to the best knowledge of the Borrower, no petition has beenfiled or proceedings instituted by any employee or group of employees with anylabor relations board seeking recognition of a bargaining representative withrespect to the Borrower or such Subsidiary. There are no material controversies pending between the Borrower or anySubsidiary and any of their respective employees, which could reasonably beexpected to have a Material Adverse Effect.

 

4.18         [Intentionally Omitted.]

 

4.19         Solvency.

 

On theEffective Date and immediately following the making of the Loans, and aftergiving effect to the application of the proceeds of such Loans:  (a) the fair value of the assets of theBorrower and its Subsidiaries, taken as a whole, at a fair valuation, willexceed the debts and

 

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liabilities, including ContingentObligations, of the Borrower and its Subsidiaries, taken as a whole; (b) thepresent fair saleable value of the Property of the Borrower and itsSubsidiaries, taken as a whole, will be greater than the amount that will berequired to pay the probable liability of the debts and other liabilities,subordinated, contingent or otherwise of the Borrower and its Subsidiaries, assuch debts and other liabilities become absolute and mature; (c) the Borrowerand its Subsidiaries, taken as a whole, will be able to pay its debts andliabilities, subordinated, contingent or otherwise, as such debts andliabilities become absolute and mature; and (d) the Borrower and itsSubsidiaries, taken as a whole, will not have unreasonably small capital withwhich to conduct the business in which they are engaged as such business is nowconducted 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 aREIT, (ii) has satisfied and continues to satisfy all of the requirements under§§ 856-859 of the Code and the regulations and rulings issued thereunder whichmust 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 toREITs generally and the regulations and rulings issued thereunder.

 

4.21         List of Unencumbered Assets.

 

A list of allthe Unencumbered Assets as of the date of this Agreement is attached hereto as Schedule4.21.

 

4.22         [Intentionally Omitted].

 

4.23         Operation of Business.

 

The Borroweris a self-advised, and self-managed REIT.

 

4.24         No Misrepresentation.

 

Norepresentation or warranty contained herein and no certificate or reportfurnished or to be furnished by the Borrower or any Subsidiary of the Borrowerin connection with the transactions contemplated hereby, contains or willcontain a misstatement of material fact, or, to the best knowledge of theBorrower, omits or will omit to state a material fact required to be stated inorder to make the statements herein or therein contained not misleading in thelight of the circumstances under which made.

 

5.             CONDITIONS TO LOANS.

 

The obligationof each Lender to make its Loan shall be subject to the fulfillment of thefollowing conditions precedent:

 

5.1           Evidence of Action.

 

(a)           The Administrative Agent shall havereceived a certificate, dated the Effective Date, of the Secretary or AssistantSecretary of the Borrower substantially in the form

 

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of Exhibit I (i)attaching a true and complete copy of the resolutions of its Board of Directorsauthorizing the execution and delivery of the Loan Documents by the Borrowerand the performance of the Borrower’s obligations thereunder, and of all otherdocuments evidencing other necessary action (in form and substance reasonablysatisfactory to the Administrative Agent) taken by it to authorize the LoanDocuments and the transactions contemplated thereby, (ii) attaching a true andcomplete copy of its articles of incorporation and by-laws, (iii) setting forththe 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 copiesthereof, are in full force and effect and have not been amended or modified.

 

(b)           The Administrative Agent shall havereceived a certificate, dated the Effective Date, of the Secretary or AssistantSecretary of each Subsidiary Guarantor substantially in the form of ExhibitJ (i) attaching a true and complete copy of the resolutions of its Board ofDirectors or Trustees, as the case may be, authorizing its execution anddelivery of the Guaranty and the performance of its obligations thereunder, andof all other documents evidencing other necessary action (in form and substancereasonably satisfactory to the Administrative Agent) taken by it to authorizethe Guaranty and the transactions contemplated thereby, (ii) attaching a trueand complete copy of its articles of incorporation or corporate charter ordeclaration of trust and, if applicable, by-laws, (iii) setting forth theincumbency of its officer or officers who may sign the Guaranty, includingtherein a signature specimen of such officer or officers, and (iv) certifyingthat said articles of incorporation, corporate charter or declaration of trustand, if applicable, by-laws, are true and complete copies thereof, is in fullforce and effect and has not been amended or modified.

 

(c)           The Administrative Agent shall havereceived certificates of good standing for the Borrower from the Maryland StateDepartment of Assessments and Taxation and for each Subsidiary Guarantor fromthe Secretary of State for the State in which such Subsidiary Guarantor isincorporated, and for the Borrower from each jurisdiction other than Marylandin which the Borrower is qualified to do business, provided that suchSecretaries issue such certificates with respect to the Borrower.

 

5.2           This Agreement.

 

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

 

5.3           Notes.

 

TheAdministrative Agent shall have received the Notes, duly executed by anAuthorized Signatory of the Borrower.

 

5.4           Guaranty.

 

TheAdministrative Agent shall have received counterparts of the Guaranty signed byeach of the Subsidiary Guarantors (or receipt by the Administrative Agent froma party hereto of

 

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a facsimile signature pagesigned by such party which shall have agreed to promptly provide theAdministrative Agent with originally executed counterparts thereof).

 

5.5           Litigation.

 

There shall beno injunction, writ, preliminary restraining order or other order of any natureissued by any Governmental Authority in any respect affecting the transactionsprovided for herein and no action or proceeding by or before any GovernmentalAuthority shall have been commenced and be pending or, to the knowledge of theBorrower, threatened, seeking to prevent or delay the transactions contemplatedby the Loan Documents or challenging any other terms and provisions hereof orthereof or seeking any damages in connection therewith and the AdministrativeAgent shall have received a certificate of an Authorized Signatory of theBorrower to the foregoing effects.

 

5.6           Opinion of Counsel to the Borrower.

 

TheAdministrative 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 SubsidiaryGuarantor, each addressed to the Administrative Agent and the Lenders, and eachdated the Effective Date, and each in form and substance satisfactory toAdministrative Agent, covering such matters as Administrative Agent mayreasonably request.

 

5.7           Fees.

 

The FNB Feeand all other fees payable to the Administrative Agent, the Lead Arrangerand  the Lenders shall have been paid.

 

5.8           Fees and Expenses of Special Counsel.

 

The fees andexpenses of Special Counsel in connection with the preparation, negotiation andclosing of the Loan Documents shall have been paid.

 

5.9           Compliance.

 

On theEffective 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 andconditions hereof, (b) there shall not exist and be continuing any Default orEvent of Default, (c) the representations and warranties contained in the LoanDocuments shall be true and correct, and (d) the aggregate outstandingprincipal balance of the Loans shall not exceed the Total Commitment Amount.

 

5.10         Loan Closing.

 

All documentsrequired by the provisions of the Loan Documents to be executed or delivered tothe Administrative Agent on or before the Effective Date shall have beenexecuted and shall have been delivered at the office of the AdministrativeAgent set forth in Section 11.2 on or before the Effective Date.

 

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5.11         Documentation and Proceedings.

 

All corporatematters and legal proceedings and all documents and papers in connection withthe transactions contemplated by the Loan Documents shall be reasonablysatisfactory in form and substance to the Administrative Agent and theAdministrative Agent shall have received all information and copies of alldocuments which the Administrative Agent or the Required Lenders may reasonablyhave requested in connection therewith, such documents (where appropriate) tobe certified by an Authorized Signatory of the Borrower or proper GovernmentalAuthorities.

 

5.12         Required Acts and Conditions.

 

All acts,conditions and things (including, without limitation, the obtaining of anynecessary regulatory approvals and the making of any filings, recordings orregistrations) required to be done or performed by the Borrower and to havehappened on or prior to the Effective Date and which are necessary for thecontinued effectiveness of the Loan Documents, shall have been done orperformed and shall have happened in due compliance with all applicable laws.

 

5.13         Approval of Special Counsel.

 

All legalmatters in connection with the making of each Loan shall be reasonablysatisfactory to Special Counsel.

 

5.14         Other Documents.

 

TheAdministrative Agent shall have received such other documents and informationwith respect to the Borrower and its Subsidiaries or the transactionscontemplated hereby as the Administrative Agent or the Lenders shall reasonablyrequest.

 

5.15         [INTENTIONALLY OMITTED]

 

6.             [INTENTIONALLY OMITTED]

 

7.             AFFIRMATIVE COVENANTS.

 

The Borroweragrees that, so long as any Loan remains outstanding and unpaid, or any otheramount is owing under any Loan Document to any Lender or the AdministrativeAgent, the Borrower shall:

 

7.1           Financial Statements.

 

Maintain a standardsystem of accounting in accordance with GAAP, and furnish or cause to befurnished to the Administrative Agent and each Lender:

 

(a)           Annual Statements.  As soon as available, but in any eventwithin 120 days after the end of each fiscal year of the Borrower, a copy ofits Consolidated Balance Sheet as at the end of such fiscal year, together withthe related Consolidated Statements of Income,

 

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Stockholders’ Equity and CashFlows as of and through the end of such fiscal year, setting forth in each casein comparative form the figures for the preceding fiscal year.  The Consolidated Balance Sheets andConsolidated Statements of Income, Stockholders’ Equity and Cash Flows shall beaudited and certified without qualification by the Accountants, whichcertification shall (i) state that the examination by such Accountants inconnection with such Consolidated financial statements has been made inaccordance with generally accepted auditing standards and, accordingly,includes the examination, on a test basis, of evidence supporting the amountsand disclosures in such Consolidated financial statements, and (ii) include theopinion of such Accountants that such Consolidated financial statements presentfairly, in all material respects, the Consolidated financial position of theBorrower and its Subsidiaries, as of the date of such Consolidated financialstatements, and the Consolidated results of their operations and their cashflows for each of the years identified therein in conformity with GAAP (subjectto any change in the requirements of GAAP).

 

(b)           Annual Operating Statements andRent Roll.  As soon as available,but in any event within 90 days after the end of each fiscal year of theBorrower, copies of (i) the operating statements (in a form reasonablysatisfactory to the Administrative Agent) for all Real Property of theBorrower, and (ii) a Rent Roll, each of which shall be certified by the ChiefFinancial Officer to be true, correct and complete in all material respects.

 

(c)           Quarterly Statements.  As soon as available, but in any eventwithin 60 days after the end of the first three fiscal quarters of theBorrower, a copy of the unaudited Consolidated Balance Sheet of the Borrower asat the end of each such quarterly period, together with the related unauditedConsolidated Statements of Income and Cash Flows for the elapsed portion of thefiscal year through the end of such period, setting forth in each case incomparative form the figures for the corresponding periods of the precedingfiscal year, certified by the Chief Financial Officer as being true, correctand complete in all material respects and as presenting fairly the Consolidatedfinancial condition and the Consolidated results of operations of the Borrowerand its Subsidiaries.

 

(d)           Quarterly Information RegardingUnencumbered Assets.  As soon asavailable, but in any event 60 days after the end of each of the first threefiscal quarters of the Borrower (120 days after the end of the last fiscalquarter of the Borrower), a list of all the Unencumbered Assets owned by theBorrower, any wholly owned Subsidiary of the Borrower and each DownREITPartnership as of the last day of such fiscal quarter setting forth thefollowing information with respect to each such Unencumbered Asset as of suchdate:  (i) asset type (i.e., retailshopping center or residential apartment building); (ii) location; (iii)percentage of the Unencumbered Asset owned by the Borrower, any wholly ownedSubsidiary of the Borrower and each DownREIT Partnership; and (iv) the NetOperating Income for such Unencumbered Asset during such fiscal quarter.

 

(e)           Compliance Certificate.  Within 60 days after the end of each of thefirst three fiscal quarters of the Borrower (120 days after the end of the lastfiscal quarter of the Borrower), a Compliance Certificate, certified by theChief Financial Officer, setting forth in reasonable detail the computationsdemonstrating the Borrower’s compliance with the provisions of Sections 8.12, 8.13,8.14, 8.15, 8.16, 8.17 and 8.18.

 

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(f)            Rent Roll.  Upon the request of the AdministrativeAgent, a Rent Roll.

 

(g)           Other Information.  Such other information as the AdministrativeAgent or any Lender may reasonably request from time to time.

 

7.2           Certificates; Other Information.

 

Furnish to theAdministrative Agent and each Lender:

 

(a)           Defaults Under Other Indebtedness.  Prompt written notice if:  (i) any Indebtedness of the Borrower or anySubsidiary of the Borrower is declared or shall become due and payable prior toits stated maturity, or called and not paid when due, or (ii) a default thatextends beyond any applicable notice or grace period shall have occurred underany note (other than the Notes) or the holder of any such note, or otherevidence of Indebtedness, certificate or security evidencing any suchIndebtedness or any obligee with respect to any other Indebtedness of theBorrower or any Subsidiary of the Borrower has the right to declare any suchIndebtedness due and payable prior to its stated maturity, and, in the case ofeither (i) or (ii), the Indebtedness that is the subject of (i) or (ii) is, inthe 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 anySubsidiary of the Borrower a party to any proceeding before any GovernmentalAuthority which could reasonably be expected to have a Material Adverse Effector which calls into question the validity or enforceability of any of the LoanDocuments, and include with such notice a copy of such citation, summons,subpoena, order to show cause or other document; (ii) any lapse or other terminationof any Intellectual Property, license, permit, franchise or other authorizationissued to the Borrower or any Subsidiary of the Borrower by any Person orGovernmental Authority, which lapse or termination could reasonably be expectedto have a Material Adverse Effect; and (iii) any refusal by any Person orGovernmental Authority to renew or extend any such material IntellectualProperty, license, permit, franchise or other authorization, which refusalcould reasonably be expected to have a Material Adverse Effect;

 

(c)           SEC or other Governmental Reportsand Filings.  Promptly upon becomingavailable, copies of all regular, periodic or special reports which theBorrower or any Subsidiary of the Borrower may now or hereafter be required tofile with or deliver to any securities exchange or the Securities and ExchangeCommission, or any other Governmental Authority succeeding to the functionsthereof, pursuant to the Securities Exchange Act of 1934, as amended.

 

(d)           ERISA Information.  Promptly, and in any event within tenBusiness Days, after the Borrower knows or has reason to know that any of theevents or conditions enumerated below with respect to any Plan or MultiemployerPlan has occurred or exists, a statement signed by the Chief Financial Officersetting 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 respectthereto; provided, however, that if such event or condition is required to bereported or noticed to the PBGC, such statement, together with a copy of therelevant report or notice to the

 

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PBGC, shall be furnishedpromptly and in any event not later than ten days after it is reported ornoticed to the PBGC:

 

(i)            any reportable event, as defined inSection 4043(b) of ERISA with respect to a Plan, as to which the PBGC has notby regulation waived the requirement of Section 4043(a) of ERISA that it benotified within thirty days of the occurrence of such event (provided that afailure to meet the minimum funding standard of Section 412 of the Code or ofSection 302 of ERISA, including, without limitation, the failure to make, on orbefore its due date, a required installment under Section 412(m) of the Code orSection 302(e) of ERISA or the disqualification of such Plan for purposes ofSection 4043(b)(1) of ERISA, shall be a reportable event regardless of theissuance of any waivers in accordance with Section 412(d) of the Code) and anyrequest for a waiver under Section 412(d) of the Code for any Plan;

 

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

 

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

 

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

 

(v)           the institution of a proceeding by afiduciary of any Multiemployer Plan against the Borrower or any ERISA Affiliateto enforce Section 515 of ERISA, which proceeding is not dismissed within thirtydays from its commencement;

 

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

 

(vii)         any event or circumstance exists whichmay reasonably be expected to constitute grounds for the incurrence of materialliability by the Borrower or any ERISA Affiliate under Title IV of ERISA orunder Sections 412(c)(11) or 412(n) of the Code with respect to any employeebenefit plan;

 

(e)           ERISA Reports.  Promptly after the request of theAdministrative Agent or any Lender therefor, copies of each annual report filedpursuant to Section 104 of ERISA with respect to each Plan (including, to theextent required by Section 104 of ERISA, the related financial and actuarialstatements and opinions and other supporting statements, certifications,schedules and information referred to in Section 103 of ERISA) and each annualreport filed

 

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with respect to each Plan underSection 4065 of ERISA; provided, however, that in the case of a MultiemployerPlan, such annual reports shall be furnished only if they are available to theBorrower or any ERISA Affiliate;

 

(f)            Notice of Sales or Transfers.  Quarterly, on each date that a ComplianceCertificate is to be delivered pursuant to Section 7.1(e), a list of all salesor transfers of any Unencumbered Assets that occurred during such quarter;provided that, if during any fiscal quarter of the Borrower any sale ortransfer of an Unencumbered Asset, which combined with all other such sales ortransfers of Unencumbered Assets during such fiscal quarter, would exceed$100,000,000 in the aggregate, then the Borrower shall promptly provide suchlist and a certification of the Chief Financial Officer as to the Borrower’scompliance with Sections 8.12 and 8.16;

 

(g)           Casualties or Condemnations.  Prompt written notice of any casualty orcondemnation of any Real Property, if such casualty or condemnation couldreasonably 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 anySubsidiary of the Borrower, or with respect to any of the Real Property, underany Environmental Law, which could reasonably be expected to have a MaterialAdverse Effect;

 

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

 

(j)            New Subsidiary Guarantors.  Notice of any Subsidiary (i) which Borroweris adding as a Subsidiary Guarantor in the event that the Borrower and the thencurrent Subsidiary Guarantors contribute less than 80% of Adjusted NetOperating Income (as further described in Section 7.11) as of the end ofany fiscal quarter of Borrower, or (ii) that has become a guarantor under anyexisting or future unsecured Indebtedness of Borrower (as further described inSection 7.11), such notice to be delivered to the Administrative Agentconcurrently with the delivery of the Compliance Certificate with respect tosuch quarter;

 

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

 

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

 

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

 

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7.3           Legal Existence.

 

(a)           Borrower’s Legal Existence.  Maintain its status as a Marylandcorporation in good standing in the State of Maryland and in each otherjurisdiction in which the failure so to do could reasonably be expected to havea Material Adverse Effect.

 

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

 

7.4           Taxes.

 

Pay anddischarge when due, and cause each Subsidiary of the Borrower so to do, allTaxes, assessments and governmental charges, license fees and levies upon, orwith 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 tothe extent only that such Taxes, assessments, governmental charges, licensefees and levies shall be contested in good faith and by appropriate proceedingsdiligently conducted by the Borrower or such Subsidiary and such contest hasthe effect of staying the collection of any Lien from any Property of theBorrower or its Subsidiaries arising from such non–payment, and providedthat the Borrower shall give the Administrative Agent prompt notice of suchcontest and that such reserve or other appropriate provision as shall berequired in accordance with GAAP (as determined by the Accountants) shall havebeen made therefor.

 

7.5           Insurance.

 

Maintain, andcause each Subsidiary of the Borrower to maintain, insurance on its Propertyagainst such risks and in such amounts as is customarily maintained by Personsengaged in similar businesses and owning similar Properties in the same generalareas in which the Borrower or the relevant Subsidiary operates, and file withthe Administrative Agent within 10 Business Days after request therefor adetailed list of such insurance then in effect, stating the names of thecarriers thereof, the policy numbers, the insureds thereunder, the amounts ofinsurance, dates of expiration thereof, and the Property and risks coveredthereby, together with a certificate of the Chief Financial Officer certifyingthat in the opinion of such officer such insurance complies with the obligationsof the Borrower under this Section, and is in full force and effect.

 

7.6           Payment of Indebtedness andPerformance of Obligations.

 

Pay anddischarge when due, and cause each Subsidiary of the Borrower to pay anddischarge, all lawful Indebtedness, obligations and claims for labor, materialsand supplies or otherwise which, if unpaid, could reasonably be expected tohave a Material Adverse Effect, unless such Indebtedness shall be contested ingood faith and by appropriate proceedings diligently conducted by the Borroweror such Subsidiary and such contest has the effect of

 

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staying the collection of anyLien from any Property of the Borrower or its Subsidiaries arising from suchnon–payment, and provided that the Borrower shall give the AdministrativeAgent prompt notice of such contest and that such reserve or other appropriateprovision as shall be required in accordance with GAAP (as determined by theAccountants) shall have been made therefor.

 

7.7           Maintenance of Property;Environmental Investigations.

 

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

 

(b)           In the event that the AdministrativeAgent shall have a reasonable basis for believing that Hazardous Substances maybe on, at, under or around any Real Property in violation of any applicableEnvironmental Law which, individually or in the aggregate could reasonably beexpected to have a Material Adverse Effect, promptly conduct and complete (atthe Borrower’s expense) all investigations, studies, samplings and testingsrelative to such Hazardous Substances as the Administrative Agent mayreasonably 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, whichnow or at any time hereafter may be applicable to it, except (i) wherenoncompliance 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 proceedingsdiligently conducted by it and such contest has the effect of staying thecollection of any Lien from any Property of the Borrower or its Subsidiariesarising from such noncompliance, and provided that the Borrower shall give theAdministrative Agent prompt notice of any contest with respect to clause (ii)to the extent that noncompliance could reasonably be expected to have aMaterial Adverse Effect and that such reserve or other appropriate provision asshall be required in accordance with GAAP (as determined by the Accountants)shall have been made therefor.

 

(b)           Use and operate all of its facilitiesand property in compliance with all Environmental Laws and cause each of itsSubsidiaries so to do, and keep all necessary permits, approvals, certificates,licenses and other authorizations relating to environmental matters in effectand remain in compliance therewith and cause each of its Subsidiaries so to do,and handle all Hazardous Materials in compliance with all applicableEnvironmental Laws and cause each of its Subsidiaries so to do, except wherenoncompliance 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 andRecords; Discussions.

 

Keep properbooks of record and account in which full, true and correct entries inconformity with GAAP and all requirements of law shall be made of all dealingsand

 

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transactions in relation to itsbusiness and activities and permit representatives of the Administrative Agentand any Lender during normal business hours and on reasonable prior notice tovisit its offices, to inspect any of its Property and to examine and makecopies or abstracts from any of its books and records as often as may reasonablybe required under the circumstances, and to discuss the business, operations,prospects, licenses, Property and financial condition of the Borrower or andits Subsidiaries with the officers thereof and the Accountants.  Borrower may have a representative accompanyAdministrative Agent or any Lender on any such visit, inspection or discussion.

 

7.10         Licenses, Intellectual Property.

 

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

 

7.11         Additional Guarantors.

 

At any timeafter the date hereof, in the event that, during any fiscal quarter ofBorrower, Borrower and the Subsidiary Guarantors do not own Unencumbered Assetswhich contribute at least eighty percent (80%) of the Adjusted Net OperatingIncome for all Unencumbered Assets of the Borrower and its Subsidiaries on aConsolidated basis, then, at the time that Borrower is to provide theCompliance Certificate with respect to such quarter to Administrative Agent,Borrower shall cause such Subsidiaries of Borrower, as designated by theBorrower and approved by Administrative Agent (such approval not to beunreasonably withheld), to execute and deliver a Guaranty to the AdministrativeAgent, for the benefit of the Lenders, duly executed by such Subsidiaries(together with certificates and attachments of a nature similar to thosedescribed in Section 5.1(b) and (c) with respect to such Subsidiariesand an opinion of counsel of a nature similar to those in the form requiredpursuant to Section 5.6 (iii)) so that Borrower and the SubsidiaryGuarantors will again own Unencumbered Assets which contribute at least 80% ofthe Adjusted Net Operating Income for all Unencumbered Assets of the Borrowerand its Subsidiaries on a Consolidated basis. Additionally, in the event that any Subsidiary of the Borrower, whetherpresently existing or hereafter formed or acquired, which is not a SubsidiaryGuarantor at such time, shall after the date hereof become a guarantor underany existing or future unsecured Indebtedness of Borrower, then promptly afterthe Administrative Agent’s request therefor, Borrower shall cause suchSubsidiary to execute and deliver a Guaranty to the Administrative Agent, forthe benefit of the Lenders, duly executed by such Subsidiaries (together withcertificates and attachments of a nature similar to those described inSection 5.1(b) and (c) with respect to such Subsidiaries and anopinion of counsel of a nature similar to those in the form required pursuantto Section 5.6 (iii)).  Notwithstandingthe foregoing, the foregoing Adjusted Net Operating Income for all UnencumberedAssets threshold of this Section shall not be applicable from and after theoccurrence 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 areduction by Moody’s of its Senior Debt Rating below Baa3 (it being understoodthat at such time, the Administrative Agent can require any Subsidiary of theBorrower (other than an Excluded Subsidiary) which has not executed a Guarantyto immediately comply with requirements of this Section).

 

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7.12         REIT Status; Operation of Business.

 

(a)           Maintain its statusunder §§856 *etseq*. of the Code as a REIT.

 

(b)           Carry on allbusiness operations of the Borrower as a self–advised, self–managedREIT.

 

(c)           Manage, or cause one or more of itsSubsidiaries at all times to manage, at least 90% of all Properties of theBorrower and its Subsidiaries.

 

(d)           Cause the common stock of Borrower atall times to be listed for trading and to be traded on the New York StockExchange, the American Stock Exchange or another nationally recognized stockexchange.

 

7.13         More Restrictive Agreements.

 

ShouldBorrower or any Subsidiary Guarantor after the date hereof enter into anyagreement or modify any existing agreement (a “More Restrictive Agreement”)relating to any unsecured Indebtedness of Borrower or any Subsidiary Guarantorthat includes negative covenants or default provisions (or any other provisionwhich may have the same practical effect) which are more restrictive againstBorrower or any Subsidiary Guarantor than those set forth in Section 8, Section9.1(g) or Section 9.1(j) of this Agreement (the “Original Provisions”), theBorrower shall promptly notify the Administrative Agent and, if requested bythe Required Lenders, the Borrower, the Administrative Agent, and the RequiredLenders shall (and if applicable, the Borrower shall cause any SubsidiaryGuarantor to) promptly amend this Agreement and the other Loan Documents toinclude some or all of such more restrictive provisions as determined by theRequired Lenders in their sole discretion. The Borrower and each Subsidiary Guarantor agree to deliver to theAdministrative Agent copies of any agreements or documents (or modifications thereof)pertaining to any such Indebtedness as the Administrative Agent from time totime may request.  Notwithstanding theforegoing, any amendments to provisions contained in this Agreement and theother Loan Documents made pursuant to this Section 7.13 shall only be effectivefor such period of time as the applicable More Restrictive Agreement is in fullforce and effect (or continues to be more restrictive), and upon thetermination of the effectiveness of such More Restrictive Agreement (or uponsuch More Restrictive Agreement becoming less restrictive than thecorresponding Original Provision), the provisions affected by such amendmentshall return to the applicable Original Provisions.

 

8.             NEGATIVE COVENANTS.

 

The Borroweragrees that, so long as any Loan remains outstanding and unpaid or any otheramount is owing under any Loan Document to any Lender or the AdministrativeAgent 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 ownedor hereafter acquired, or permit any Subsidiary of the Borrower so to do,except the

 

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following “PermittedLiens”:  (i) Liens for Taxes,assessments or similar charges incurred in the ordinary course of businesswhich are not delinquent or the existence of which do not otherwise violate thecovenants in Section 7.4, (ii) Liens in connection with workers’ compensation,unemployment insurance or other social security obligations (but not ERISA andother types of statutory obligation incurred in the ordinary course ofbusiness), (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 otherobligations of like nature arising in the ordinary course of business, (iv)zoning ordinances, easements, rights of way, use restrictions, exclusive uselimitations in any lease of Real Property, reciprocal easement agreements,minor defects, irregularities, and other restrictions, charges or encumbrancesaffecting Real Property (whether or not recorded), which do not materiallyadversely affect the value of such Real Property or materially impair its usefor 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 businesswhich are not delinquent or the existence of which do not otherwise violate thecovenants in Section 7.6, (vi) Liens arising out of judgments or decrees whichare being contested in accordance with Section 7.8 or the existence of which donot otherwise violate the covenants in Section 7.8 or result in a defaultpursuant to Section 9.1(j), (vii) mortgages and related financing statementsand security agreements on Real Property, provided that the existence of suchmortgages, and the indebtedness secured thereby, does not cause the Borrower tobe in violation of Section 8.15 or 8.16, (viii) Liens in favor of theBorrower or any Subsidiary Guarantor, provided that the Indebtedness secured byany such Lien is held by the Borrower or such Subsidiary Guarantor, (ix) the interestsof lessees and lessors under leases of real or personal property made in theordinary course of business which could not reasonably be expected(individually or in the aggregate) to have a Material Adverse Effect, (x) Lienson the interests of Borrower or any Subsidiary of Borrower in a Joint Venture,provided that the existence of such Liens, and the indebtedness securedthereby, 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 inviolation of Section 8.15, and (xii) Liens not otherwise permitted byclauses (i) through (xi) of this Section which do not in the aggregate exceed,in principal amount, $15,000,000.

 

8.2           Merger, Consolidation and CertainDispositions of Property.

 

(a)           Consolidate with, be acquired by, ormerge into or with any Person, or sell, lease or otherwise dispose of all orsubstantially all of its Property (in one transaction or a series oftransactions), or permit any Subsidiary Guarantor so to do, or liquidate ordissolve, except (i) the merger or consolidation of any Subsidiary Guarantor ofthe Borrower into or with the Borrower, (ii) the merger or consolidation of anytwo or more Subsidiary Guarantors (including any Subsidiaries that becomeSubsidiary Guarantors upon the consummation of such a transaction with aSubsidiary Guarantor), (iii) the merger or consolidation of the Borrower or aSubsidiary Guarantor with any other Person, provided that (A) the Borrower orsuch Subsidiary Guarantor is the surviving entity in such merger orconsolidation, or contemporaneously with the consummation of such transactionthe surviving entity becomes a Subsidiary Guarantor, (B) the total book valueof the assets of the entity which is merged into or consolidated with theBorrower or such Subsidiary Guarantor is less than 35% of the total book valueof the assets of the Borrower and its Subsidiaries on a Consolidated basisimmediately following such merger or

 

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consolidation,(C) immediately prior to such merger or consolidation the Borrower shallhave provided to the Administrative Agent a Compliance Certificate prepared ona pro–forma basis (and adjusted in the best good faith estimate of theBorrower, based on the advice of the Accountants, to give effect to such mergeror consolidation) demonstrating that after giving effect to such merger orconsolidation, no Default shall exist with respect to any of the covenants setforth 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 ofDefault shall then exist, or (iv)  the merger or consolidation of a SubsidiaryGuarantor with any other Person in which such other Person shall be thesurviving entity, the liquidation or dissolution of a Subsidiary Guarantor, orthe sale, lease or other disposition by a Subsidiary Guarantor of all orsubstantially all of its Property, so long as, after giving effect to suchtransaction, (x) no Default or Event of Default shall then exist, (y) suchtransaction does not violate Section 8.2(b) and (z) Borrower and/or theSubsidiary Guarantors (including any new Subsidiary Guarantors provided by theBorrower pursuant to Section 7.11 in connection with such transaction) ownUnencumbered Assets which contribute at least 80% of the Adjusted Net OperatingIncome for all Unencumbered Assets of the Borrower and its Subsidiaries on aConsolidated basis.  In the event that aSubsidiary Guarantor shall engage in a transaction permitted by Section8.2(a)(iv) (other than a lease of all or substantially all of its assets), thensuch Subsidiary Guarantor shall be released by Administrative Agent from liabilityunder the Subsidiary Guaranty, provided that the Borrower shall deliver toAdministrative Agent evidence satisfactory to Administrative Agent that(X) the Borrower will be in compliance with all covenants of thisAgreement after giving effect to such transaction, (Y) if such transactioninvolves the sale or disposition by a Subsidiary Guarantor of all orsubstantially all of its Property, such Subsidiary Guarantor shall be legallydissolved after its release from the Subsidiary Guaranty (provided further thata Subsidiary Guarantor that has transferred substantially all of its assets maybe released from its liability under the Subsidiary Guaranty without dissolvingupon the approval of the Administrative Agent, which approval may be withheldin its sole discretion) and (Z) the net cash proceeds from such sale ordisposition are being distributed to Borrower as part of such dissolution.  Nothing in this Section 8.2(a) shall in anyway restrict the activities of a Subsidiary that is not a Subsidiary Guarantor.

 

(b)           Except as expressly permitted bySection 8.2(a), sell, transfer, contribute, master lease or dispose of any ofits Property, either directly or indirectly, or permit any Subsidiary Guarantorso to do, except that if at the time thereof and immediately after givingeffect thereto, no Default shall have occurred and be continuing, (i) anySubsidiary Guarantor may sell, transfer, contribute, master lease or otherwisedispose of its assets to the Borrower or to any other Subsidiary Guarantor,(ii) the Borrower may sell, transfer, contribute, master lease orotherwise dispose of its assets to any Subsidiary Guarantor, (iii) inconnection with any transaction pursuant to which a Real Property asset ofBorrower or any Subsidiary Guarantor is or will be encumbered with a mortgage(as permitted under Section 8.1(vii)), the Borrower or any SubsidiaryGuarantor may transfer such asset to any Subsidiary, (iv) Borrower or anySubsidiary Guarantor of Borrower may sell, transfer, contribute or dispose ofworn-out or obsolete Property, (v) Borrower or any Subsidiary Guarantormay sell, transfer, contribute, master lease or otherwise dispose of any of itsassets to any Subsidiary, so long as, after giving effect to such transaction,Borrower and/or the Subsidiary Guarantors (including any new SubsidiaryGuarantors provided by the Borrower pursuant to Section 7.11 in connectionwith such transaction) own Unencumbered Assets which contribute at least 80% ofthe Adjusted Net Operating Income for all Unencumbered Assets of the Borrowerand its Subsidiaries on a

 

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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 lengthtransaction (or, if the transaction involves an Affiliate of the Borrower, ifthe transaction complies with Section 8.8), including, without limitation, adisposition of Property pursuant to a merger or consolidation (so long as suchmerger or consolidation is not prohibited by Section 8.2(a)), provided,however, that for any fiscal year of the Borrower, any sale, transfer, masterlease, 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) madein such fiscal year shall not exceed 25% of the total book value of allProperty of the Borrower and its Subsidiaries determined as of the date of eachsuch transaction.  Nothing in thisSection 8.2(b) (other than clause (vi)) shall in any way restrict theactivities 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 otherinterest in, any Person, or make any loan or advance to, or enter into anyarrangement for the purpose of acquiring, holding or investing in or loaning oradvancing to, or make any other investment, whether by way of capitalcontribution, time deposit or otherwise, in or with any Person, or permit anySubsidiary of the Borrower so to do, (all of which are sometimes referred toherein as “Investments”, it being understood, without limitation, thatthe provision by Borrower or any Subsidiary of guarantees and/or letters ofcredit to other Persons shall not constitute Investments but shall insteadconstitute Indebtedness) except the following (to the extent that maintainingany thereof would not at any time violate the requirements of Section 856(c) ofthe Code):

 

(a)           demand deposits, certificates ofdeposit, bankers acceptances and domestic and eurodollar time deposits with anyLender, or any other commercial bank, trust company or national bankingassociation incorporated under the laws of the United States or any Statethereof 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 obligationsof the United States of America or agencies thereof whose obligations areguaranteed by the United States of America;

 

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

 

(d)           mortgage–backed securitiesguaranteed by the Governmental National Mortgage Association, the FederalNational Mortgage Association or the Federal Home Loan Mortgage Corporation andother mortgage–backed bonds which at the time of purchase are rated byS&P or Moody’s at not less than “Aa” or “AA,” respectively;

 

(e)           repurchase agreements having a termnot greater than 90 days and fully secured by securities described in theforegoing paragraph (b) or (d) with banks described in the

 

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foregoing paragraph (a) or withfinancial 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 maintaina level per-share value, invest principally in the investments described in oneor more of the foregoing paragraphs (a) through (e) and have total assets of inexcess of $50,000,000;

 

(g)           Real Property;

 

(h)           Subject to Section 8.17, equityinvestments in any Person (other than Subsidiaries) and Notes Receivableinvestments;

 

(i)            Investments (debt or equity) inSubsidiaries of the Borrower;

 

(j)            investments in respect of (1)equipment, inventory and other tangible personal property or intangibleproperty acquired in the ordinary course of business, (2) current trade andcustomer accounts receivable for services rendered in the ordinary course ofbusiness, (3) advances to employees for travel expenses other company–relatedexpenses, and (4) prepaid expenses made in the ordinary course of business;

 

(k)           Hedging Agreements made in connectionwith any Indebtedness;

 

(l)            repurchases of any common orpreferred stock or other equity interests (or securities convertible into suchinterests) in the Borrower that have been previously issued by the Borrowerwhich do not exceed, in any calendar year, (1) 10% of the aggregate outstandingshares of common and preferred stock and other equity interests in Borrower asof the date hereof, in any combination, plus (2) 10% of the aggregate of anyadditional shares of common and preferred stock and other equity interests inBorrower issued after the date hereof, in any combination;

 

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

 

(n)           redemptions for cash or common Stockof the Borrower of units of limited partner interests or limited liabilitycompany interests in a DownREIT Partnership;

 

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

 

(p)           Capital Leases; and

 

(q)           subject to Section 8.17, any otherInvestments not included in paragraphs (a) through (p) deemed appropriate bythe Borrower (provided that in no event shall Investments made in reliance uponthe exception set forth in this paragraph (q) exceed $75,000,000 in any fiscalyear of Borrower).

 

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8.4           Business Changes.

 

Change in anymaterial respect the nature of the business of the Borrower or its Subsidiariesas conducted on the Effective Date.

 

8.5           Amendments to Organizational Documents.

 

Amend orotherwise modify its corporate charter or by–laws in any way (other thanin connection with the issuance or classification of preferred stock of theBorrower) which would adversely affect the interests of the AdministrativeAgent and the Lenders under any of the Loan Documents, or permit any Subsidiaryof the Borrower to amend its organizational documents in a manner which couldhave the same result.

 

8.6           [Intentionally Omitted.]

 

8.7           Sale and Leaseback.

 

Enter into anyarrangement with any Person providing for the leasing by it of Property whichhas been or is to be sold or transferred by it to such Person or to any otherPerson to whom funds have been or are to be advanced by such Person on thesecurity of such Property or its rental obligations, or permit any Subsidiaryof the Borrower so to do, except for sale and leasing transactions describedherein for which the combined selling price of all Property subject to all suchtransactions does not exceed $100,000,000 in any fiscal year of Borrower.

 

8.8           Transactions with Affiliates.

 

Become a partyto any transaction in an amount that exceeds $100,000 with an Affiliate unlessthe terms and conditions relating thereto (i) have been approved by a majorityof the disinterested directors of the Borrower, (ii) have been approved by amajority of votes cast by the stockholders of the Borrower, or (iii) are uponfair and reasonable terms, no less favorable to the Borrower or itsSubsidiaries than would be obtained in a comparable arm’s–length transactionwith a Person not an Affiliate of the Borrower or its Subsidiary, or permit anySubsidiary of the Borrower so to do.

 

8.9           Issuance of Additional Capital Stockby Subsidiary Guarantors.

 

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

 

8.10         Hedging Agreements.

 

Enter into, orpermit any of its Subsidiaries to enter into, any Hedging Agreement, other thanHedging Agreements entered into in the ordinary course of business to hedge ormitigate interest rate risks to which the Borrower or any Subsidiary of theBorrower is exposed in the conduct of its business or the management of itsliabilities.

 

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8.11         Restricted Payments.

 

Permit theBorrower 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 itsequity securities in any fiscal quarter of the Borrower if after giving effectto such dividend, such dividend, when added to the amount of all other suchdividends paid in the same fiscal quarter and the preceding three (3) fiscalquarters, would not exceed the greater of (A) ninety-five percent (95%) of itsFunds from Operations for the four fiscal quarters ending prior to the quarterin which such dividend is paid or (B) the minimum amount of such dividendsrequired under the Code to enable the Borrower to continue to maintain its statusunder the Code as a REIT, as evidenced (in the case of clause (B)) by acertification of Chief Financial Officer containing calculations in reasonabledetail satisfactory in form and substance to Administrative Agent;

 

(ii)           if an Event of Default under Section9.1(a) or (b) has occurred and is continuing, the Borrower may declare and paydividends with respect to its equity securities which shall not exceed theminimum amount of such dividends required under the Code to enable the Borrowerto continue to maintain its status under the Code as a REIT, as evidenced by acertification of Chief Financial Officer containing calculations in reasonabledetail reasonably satisfactory in form and substance to Administrative Agent;

 

(iii)          the Borrower may effect Stockrepurchases to the extent permitted by Sections 8.3(l) or 8.3(m);

 

(iv)          the Borrower may effect “cashlessexercises” of options granted under the Borrower’s stock option plans;

 

(v)           the Borrower may distribute rights orequity securities under any rights plan adopted by the Borrower; and

 

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

 

8.12         Unencumbered Assets Coverage Ratio.

 

Permit theUnencumbered Assets Coverage Ratio to be less than 2.0:1.0 at any time.

 

8.13         Fixed Charge Coverage Ratio.

 

Permit theFixed Charge Coverage Ratio to be less than 1.75:1.0 at any time.

 

8.14         Minimum Tangible Net Worth.

 

Permit theTangible Net Worth of the Borrower and its Subsidiaries on a Consolidated basisat any time to be less than the sum of (i) $1,250,000,000, plus (ii) 80% of theaggregate net

 

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proceeds received by theBorrower from and after the Effective Date in connection with the issuance ofany capital stock of the Borrower.

 

8.15         Maximum Total Indebtedness.

 

(a)           Permit at any time Consolidated TotalIndebtedness (i) to be more than 55% of Adjusted Consolidated Total Assets atany time prior to the EIG Acquisition Date, (ii) to be more than 57.5% ofAdjusted Consolidated Total Assets at any time after the EIG Acquisition Datebut 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 ConsolidatedTotal Indebtedness secured by mortgages on Real Property owned by the Borrowerand its Subsidiaries at such time to exceed 40% of Adjusted Consolidated Total Assetsat such time.

 

8.16         Indebtedness to UnencumberedAssets Ratio.

 

Permit at anytime the portion of the Consolidated Total Indebtedness (which shall excludeIndebtedness of Joint Ventures that are not Subsidiaries) consisting ofConsolidated unsecured Indebtedness of the Borrower and its Subsidiaries atsuch time (i) to be more than 55% of Unencumbered Asset Value at any time priorto the EIG Acquisition Date, (ii) to be more than 57.5% of Unencumbered AssetValue at any time after the EIG Acquisition Date but prior to the occurrence ofa Capital Event, and (iii) to be more than 55% of Unencumbered Asset Value atany time thereafter.

 

8.17         Maximum Book Value of AncillaryAssets.

 

Permit thebook value of the Ancillary Assets at any time to be more than 25% of theAdjusted Consolidated Total Assets of the Borrower and its Subsidiaries on aConsolidated basis at such time.  Forpurposes of this Section 8.17 the book value of any Ancillary Asset not owned100%, directly or indirectly, by the Borrower or any of its Subsidiaries shallbe adjusted by multiplying the same by the Borrower’s Interest in suchAncillary Asset during the fiscal quarter of the Borrower ending as of any dateof determination of such book value.

 

8.18         Development Activity.

 

Engage, directlyor indirectly, or permit any Subsidiary or Joint Venture to engage, in theground-up development of Real Property except for the ground-up development ofNew Construction Assets to be used principally as a retail shopping center,provided that the book value of New Construction Assets by Borrower and itsSubsidiaries 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 thebook value of any New Construction Assets not owned 100%, directly orindirectly, by the Borrower or any of its Subsidiaries shall be adjusted bymultiplying the same by the Borrower’s Interest in such New Construction Assetduring the fiscal quarter of the Borrower ending as of any date ofdetermination of such book value.

 

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9.             DEFAULT.

 

9.1           Events of Default.

 

The followingshall each constitute an “Event of Default” hereunder:

 

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

 

(b)           The failure of the Borrower to payany installment of interest or any other fees, expenses or other chargespayable under any Loan Document within five Business Days of the date when dueand payable; or

 

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

 

(d)           The failure of the Borrower toobserve 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 whichthe provisions of paragraph (e) below shall apply); or

 

(e)           The failure to observe or perform anyother term, covenant, or agreement contained in any Loan Document and suchfailure shall have continued unremedied for a period of 30 days after noticethereof from the Administrative Agent to the Borrower, provided that ifBorrower shall have exercised reasonable diligence to cure such failure andsuch failure cannot be cured within such 30 day period despite such reasonablediligence, Borrower shall have the right to cure such failure within 90 daysafter the date of such notice from Administrative Agent provided Borrowerdiligently and continuously pursues the completion of such cure; or

 

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

 

(g)           Any obligation of the Borrower (otherthan its obligations under the Notes) or any Subsidiary of the Borrower,whether as principal, guarantor, surety or other obligor, for the payment ofany Indebtedness shall (i) become or shall be declared to be due and payableprior to the expressed maturity thereof, or (ii) shall not be paid when due orwithin any grace period for the payment thereof, or (iii) shall be subject, bythe holder of the obligation evidencing such Indebtedness, to acceleration(after the expiration of any applicable notice and cure periods) prior to theexpressed maturity thereof, and the sum of all such Indebtedness which is thesubject of paragraphs (i) - (iii) inclusive exceeds (A) at any time, in thecase 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 theBorrower shall (i) suspend or discontinue its business (except as permitted bySection 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,

 

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(iv) admit in writing itsinability to pay its debts as they become due, (v) file a voluntary petition inbankruptcy, (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 orsimilar relief under any present or future statute, law or regulation of anyjurisdiction, (viii) petition or apply to any tribunal for any receiver,custodian or any trustee for any substantial part of its Property, (ix) be thesubject of any such proceeding filed against it which remains undismissed for aperiod of 60 days, (x) file any answer admitting or not contesting the materialallegations of any such petition filed against it or any order, judgment ordecree approving such petition in any such proceeding, (xi) seek, approve,consent to, or acquiesce in any such proceeding, or in the appointment of anytrustee, receiver, custodian, liquidator, or fiscal agent for it, or anysubstantial part of its Property, or an order is entered appointing any suchtrustee, receiver, custodian, liquidator or fiscal agent and such order remainsin effect for 60 days, or (xii) take any formal action for the purpose ofeffecting any of the foregoing; provided that the events described in thisSection 9.1(h) as to any Subsidiary of the Borrower that is not a SubsidiaryGuarantor shall not constitute an Event of Default unless the aggregate bookvalue of Borrower’s direct or indirect equity Investment in all suchSubsidiaries exceeds $50,000,000; or

 

(i)            An order for relief is entered underthe United States bankruptcy laws or any other decree or order is entered by acourt having jurisdiction (i) adjudging the Borrower or any Subsidiary bankruptor insolvent, (ii) approving as properly filed a petition seekingreorganization, liquidation, arrangement, adjustment or composition of or inrespect of the Borrower or any Subsidiary under the United States bankruptcylaws or any other applicable Federal or state law, (iii) appointing a receiver,liquidator, assignee, trustee, custodian, sequestrator (or other similarofficial) of the Borrower or any Subsidiary or of any substantial part of theProperty thereof, or (iv) ordering the winding up or liquidation of the affairsof the Borrower or any Subsidiary, and any such decree or order continuesunstayed and in effect for a period of 60 days; provided that the eventsdescribed in this Section 9.1(i) as to any Subsidiary of the Borrower that isnot a Subsidiary Guarantor shall not constitute an Event of Default unless theaggregate book value of Borrower’s direct or indirect equity Investment in allsuch Subsidiaries exceeds $50,000,000; or

 

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

 

(k)           Any Loan Document shall cease, forany reason, to be in full force and effect, or the Borrower shall so assert inwriting or shall disavow any of its obligations thereunder; or

 

(l)            An event or condition specified inSection 7.2(d) shall occur or exist with respect to any Plan or MultiemployerPlan and, as a result of such event or condition, together with all other suchevents or conditions, the Borrower shall be reasonably likely to incur aliability to a Plan, a Multiemployer Plan, the PBGC, or any combinationthereof, 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) isdetermined by any court or Governmental Authority to be illegal, invalid orunenforceable in accordance with its terms, or (ii) shall be canceled,terminated, revoked or rescinded other than in accordance with its terms orwith the written consent or approval of the Lenders; or

 

(o)           (i) Any Subsidiary Guarantorshall fail to comply in any material respect with any covenant made by it inthe Guaranty or if at any time any representation or warranty made by anySubsidiary Guarantor in the Guaranty or in any other document, statement orwriting made to the Administrative Agent, the Lead Arranger or the Lendersshall prove to have been incorrect or misleading in any material respect whenmade, or (ii) if a default by any Subsidiary Guarantor shall occur under theGuaranty 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 continuingan Event of Default under and as defined in the Existing Credit Agreement.

 

Upon theoccurrence of an Event of Default or at any time thereafter during thecontinuance thereof, (a) if such event is an Event of Default specified inclause (h) or (i) above, the Loans, all accrued and unpaid interest thereon,and all other amounts owing under the Loan Documents shall immediately becomedue and payable, and the Administrative Agent may, and upon the direction ofthe Required Lenders shall, exercise any and all remedies and other rightsprovided in the Loan Documents, and (b) if such event is any other Event ofDefault with the consent of the Required Lenders, the Administrative Agent may,and upon the direction of the Required Lenders shall, by notice of default tothe Borrower, declare the Loans, all accrued and unpaid interest thereon andall other amounts owing under the Loan Documents to be due and payableforthwith, whereupon the same shall immediately become due and payable, and theAdministrative Agent may, and upon the direction of the Required Lenders shall,exercise any and all remedies and other rights provided pursuant to the LoanDocuments.  Except as otherwise providedin this Section, presentment, demand, protest and all other notices of any kindare hereby expressly waived.  TheBorrower hereby further expressly waives and covenants not to assert anyappraisement, valuation, stay, extension, redemption or similar laws, now or atany time hereafter in force which might delay, prevent or otherwise impede theperformance or enforcement of any Loan Document.

 

In the eventthat the Notes shall have been declared due and payable pursuant to theprovisions of this Section, any funds received by the Administrative Agent andthe Lenders from or on behalf of the Borrower shall be applied by theAdministrative Agent and the Lenders in liquidation of the Loans and theobligations of the Borrower under the Loan Documents in the following mannerand order:  (i) first, to the payment ofinterest on and then the principal portion of any Loans which theAdministrative Agent may have advanced on behalf of any Lender for which theAdministrative Agent has not then been reimbursed by such Lender or theBorrower; (ii) second, to reimburse the Administrative Agent and the Lendersfor any expenses due from the Borrower pursuant to the provisions of Section11.5; (iii) third, to the payment of all other fees, expenses and amountsdue under the Loan Documents (other than principal and interest on the Notes);provided, however, that distributions in respect of such fees and expenses dueto the

 

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Administrative Agent from theBorrower shall be made pari passu with respect to the payment of any otherfees, expenses or amounts due the Lenders from the Borrower; (iv) fourth, tothe payment of interest due on the Notes; (v) fifth, to the payment ofprincipal outstanding on the Notes; and (vi) sixth, to the payment of any otheramounts owing to the Administrative Agent, the Lead Arranger and the Lendersunder any Loan Document or other document or agreement entered into inconnection with the transactions contemplated thereby.

 

10.           THE AGENT.

 

10.1         Appointment.

 

Each Lenderhereby irrevocably designates and appoints FNB as the Administrative Agent ofsuch Lender under the Loan Documents and each such Lender hereby irrevocablyauthorizes FNB, as the Administrative Agent for such Lender, to take suchaction on its behalf under the provisions of the Loan Documents and to exercisesuch powers and perform such duties as are expressly delegated to theAdministrative Agent by the terms of the Loan Documents, together with suchother powers as are reasonably incidental thereto.  Notwithstanding any provision to the contrary elsewhere in anyLoan Document, the Administrative Agent shall not have any duties orresponsibilities, except those expressly set forth therein, or any fiduciary ortrustee relationship with any Lender, and no implied covenants, functions,responsibilities, duties, obligations or liabilities shall be read into theLoan Documents or otherwise exist against the Administrative Agent.

 

10.2         Delegation of Duties.

 

TheAdministrative Agent may execute any of its duties under the Loan Documents byor through agents or attorneys–in–fact and shall be entitled torely upon the advice of counsel concerning all matters pertaining to suchduties.

 

10.3         Exculpatory Provisions.

 

Neither theAdministrative Agent nor any of its officers, directors, employees, agents,attorneys–in–fact or affiliates shall be (i) liable for any actionlawfully taken or omitted to be taken by it or such Person under or inconnection with the Loan Documents (except for its own gross negligence orwillful misconduct), or (ii) responsible in any manner to any of the CreditParties for any recitals, statements, representations or warranties made by theBorrower or any officer thereof contained in the Loan Documents or in anycertificate, report, statement or other document referred to or provided forin, or received by the Administrative Agent under or in connection with, theLoan Documents or for the value, validity, effectiveness, genuineness,enforceability or sufficiency of any of the Loan Documents or for any failureof the Borrower or any other Person to perform its obligations thereunder.  The Administrative Agent shall not be underany obligation to any Credit Party to ascertain or to inquire as to theobservance or performance of any of the agreements contained in, or conditionsof, the Loan Documents, or to inspect the properties, books or records of theBorrower or any of its Subsidiaries. The Administrative Agent shall not be under any liability orresponsibility whatsoever, as Administrative Agent, to the Borrower or anyother Person as a consequence of any failure or

 

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delay in performance, or anybreach, by any Credit Party of any of its obligations under any of the LoanDocuments.

 

10.4         Reliance by Administrative Agent.

 

TheAdministrative Agent shall be entitled to rely, and shall be fully protected inrelying, 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 tobe genuine and correct and to have been signed, sent or made by the properPerson or Persons and upon advice and statements of legal counsel (including,without limitation, counsel to the Borrower), independent accountants and otherexperts selected by the Administrative Agent. The Administrative Agent may treat each Lender, or the Person designatedin the last notice filed with it under this Section, as the holder of all ofthe interests of such Lender in its Loans and in its Note until written noticeof transfer, signed by such Lender (or the Person designated in the last noticefiled with the Administrative Agent) and by the Person designated in suchwritten notice of transfer, in form and substance satisfactory to theAdministrative Agent, shall have been filed with the Administrative Agent.  The Administrative Agent shall not be underany duty to examine or pass upon the validity, effectiveness or genuineness ofthe Loan Documents or any instrument, document or communication furnishedpursuant thereto or in connection therewith, and the Administrative Agent shallbe entitled to assume that the same are valid, effective and genuine, have beensigned or sent by the proper parties and are what they purport to be.  The Administrative Agent shall be fullyjustified in failing or refusing to take any action under the Loan Documentsunless it shall first receive such advice or concurrence of the RequiredLenders as it deems appropriate or as set forth herein.  The Administrative Agent shall in all casesbe fully protected in acting, or in refraining from acting, under the LoanDocuments in accordance with a request or direction of the Required Lenders, andsuch request or direction and any action taken or failure to act pursuantthereto shall be binding upon all the Lenders and all future holders of theNotes.

 

10.5         Notice of Default.

 

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

 

10.6         Non-Relianceon Administrative Agent and Other Lenders.

 

Each Lenderexpressly acknowledges that neither the Administrative Agent nor any of itsofficers, directors, employees, agents, attorneys-in-fact or affiliates hasmade any representations

 

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or warranties to it and that noact by the Administrative Agent hereinafter, including any review of theaffairs of the Borrower or any of its Subsidiaries, shall be deemed toconstitute any representation or warranty by the Administrative Agent to anyLender.  Each Lender represents to theAdministrative Agent that it has, independently and without reliance upon theAdministrative Agent or any other Lender, and based on such documents andinformation as it has deemed appropriate, made its own evaluation of andinvestigation into the business, operations, Property, financial and othercondition and creditworthiness of the Borrower and its Subsidiaries and madeits own decision to enter into this Agreement. Each Lender also represents that it will, independently and withoutreliance upon the Administrative Agent or any other Lender, and based on suchdocuments and information as it shall deem appropriate at the time, continue tomake its own credit analysis, evaluations and decisions in taking or not takingaction under any Loan Document, and to make such investigation as it deemsnecessary to inform itself as to the business, operations, Property, financialand other condition and creditworthiness of the Borrower and itsSubsidiaries.  Except for notices,reports and other documents expressly required to be furnished to the Lendersby the Administrative Agent hereunder, the Administrative Agent shall not haveany duty or responsibility to provide any Lender with any credit or otherinformation concerning the business, operations, Property, financial and othercondition or creditworthiness of the Borrower and its Subsidiaries which maycome into the possession of the Administrative Agent or any of its officers,directors, employees, agents, attorneys-in-fact or affiliates.

 

10.7         Indemnification.

 

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

 

10.8         Administrative Agent in ItsIndividual Capacity.

 

FNB and itsaffiliates may make loans to, accept deposits from, issue letters of credit forthe account of, and generally engage in any kind of business with, the Borrowerand its Subsidiaries as though FNB was not Administrative Agent hereunder.  With respect to the

 

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Commitment made or renewed byFNB and the Note issued to FNB, FNB shall have the same rights and powers underthe Loan Documents as any Lender and may exercise the same as though it was notthe Administrative Agent, and the terms “Lender” and “Lenders” shall in eachcase include FNB.

 

10.9         Successor Administrative Agent.

 

If at any timethe Administrative Agent deems it advisable, in its sole discretion, it maysubmit to each of the Lenders a written notice of its resignation asAdministrative Agent under this Agreement, such resignation to be effectiveupon the earlier of (i) the written acceptance of the duties of theAdministrative Agent under the Loan Documents by a successor AdministrativeAgent and (ii) on the 60th day after the date of such notice.  Upon any such notice of resignation, theRequired Lenders shall have the right to appoint from among the Lenders asuccessor Administrative Agent.  If nosuccessor Administrative Agent shall have been so appointed by the RequiredLenders and accepted such appointment in writing within 45 days after theretiring Administrative Agent’s giving of notice of resignation, then theretiring Administrative Agent shall, in consultation with the Borrower, appointa successor Administrative Agent on behalf of the Lenders prior to the end ofthe 60th day from such notice from among any of the Lenders who shall have atsuch time agreed to act as the successor Administrative Agent and shall have atsuch 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 agreeto accept such appointment), then the retiring Administrative Agent shall, inconsultation with the Borrower (unless an Event of Default has occurred and iscontinuing), appoint any other Lender or any other commercial bank organizedunder the laws of the United States of America or any State thereof and havinga combined capital and surplus of at least $100,000,000 as a successorAdministrative Agent. Any appointment of a successor Administrative Agent shallbe subject to the approval of the Borrower, which approval shall not beunreasonably withheld or delayed, and shall be given in any event prior to theend of the 60th day from the date of the retiring Administrative Agent’s noticeof resignation, provided that during any period in which there exists and iscontinuing an Event of Default, no approval from the Borrower to theappointment of an Approved Successor shall be required. Upon the acceptance ofan appointment as Administrative Agent hereunder by a successor AdministrativeAgent and any required approval of such successor Administrative Agent by theBorrower in accordance with the terms of this Section, such successorAdministrative Agent shall thereupon succeed to and become vested with all therights, powers, privileges and duties of the retiring Administrative Agent, andthe retiring Administrative Agent’s rights, powers, privileges and duties asAdministrative Agent under the Loan Documents shall be terminated.  The Borrower and the Lenders shall executesuch documents as shall be necessary to effect such appointment.  After any retiring Administrative Agent’sresignation hereunder as Administrative Agent, the provisions of the LoanDocuments shall inure to its benefit as to any actions taken or omitted to betaken by it while it was Administrative Agent under the Loan Documents.  The Supermajority Lenders may remove theAdministrative Agent from its capacity as administrative agent in the event ofthe Administrative Agent’s willful misconduct or gross negligence.  The Commitment of the Lender then acting asAdministrative Agent, if the Administrative Agent is being removed due towillful misconduct or gross negligence pursuant to this Section 10.9, shall bedisregarded in determining the Supermajority Lenders.  Such removal shall be in accordance with the IntercreditorAgreement of even date herewith among the Administrative Agent and the Lenders

 

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which provides, among otherthings, that any successor Administrative Agent must satisfy the conditions fora successor Administrative Agent contained above in this Section 10.9.

 

11.           OTHER PROVISIONS.

 

11.1         Amendments and Waivers.

 

With thewritten consent of the Required Lenders, the Administrative Agent and theBorrower may, from time to time, enter into written amendments, supplements ormodifications of the Loan Documents and, with the consent of the RequiredLenders, the Administrative Agent on behalf of the Lenders may execute anddeliver to any such parties a written instrument waiving or a consent to adeparture from, on such terms and conditions as the Administrative Agent mayspecify in such instrument, any of the requirements of the Loan Documents orany Default or Event of Default and its consequences; provided, however, thatno such amendment, supplement, modification, waiver or consent shall, withoutthe consent of all of the Lenders: (i) increase the Commitment of any Lender or the Total CommitmentAmount; (ii) extend the Maturity Date; (iii) decrease the rate, or extend thetime of payment, of interest of, or change or forgive the principal amount of,or change the requirement that payments and prepayments of principal on, andpayments of interest on, the Notes be made pro rata to the Lenders on the basisof 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 obligationsunder a Guaranty except as provided in Section 8.2, or (vii) change theprovisions of Section 2.9, 2.10, 2.11, 2.12, 2.13, 2.14, 2.15, 2.16, 3.1 or11.1; and provided further that no such amendment, supplement, modification,waiver or consent shall amend, modify, waive or consent to a departure from anyprovision of Section 10 or otherwise change any of the rights or obligations ofthe Administrative Agent under the Loan Documents without the written consentof the Administrative Agent.  TheAdministrative Agent shall cause a copy of each written request for such anamendment, supplement or modification delivered by the Borrower to it to bedelivered to each Lender.  Any suchamendment, supplement, modification, waiver or consent shall apply equally toeach of the Lenders and shall be binding upon the parties to the applicableagreement, the Lenders, the Administrative Agent and all future holders of theNotes.  In the case of any waiver, theparties to the applicable agreement, the Lenders and the Administrative Agentshall 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 subsequentor other Default or Event of Default, or impair any right consequent thereon.  The Administrative Agent and the Lendersacknowledge and agree that certain rights among the Administrative Agent andthe Lenders, including, without limitation, deemed approval rights with respectto waivers and amendments, are governed by and set forth in that certainIntercreditor Agreement dated as of March 1, 2002 among the Lenders and theAdministrative Agent.

 

11.2         Notices.

 

All notices,requests and demands to or upon the respective parties hereto to be effectiveshall be in writing and, unless otherwise expressly provided herein, shall bedeemed to have been duly given or made when delivered by hand, or if sent bycertified mail (return receipt requested), when the return receipt is signed onbehalf of the party to whom such notice is given,

 

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or in the case of telecopiernotice, when sent with a confirmation received, or if sent by overnightnationwide commercial courier, the Business Day following the date such noticeis deposited with said courier, and in any case addressed as follows in thecase of the Borrower or the Administrative Agent, and at the Domestic LendingOffice in the case of each Lender, or to such other addresses as to which theAdministrative Agent may be hereafter notified by the respective parties heretoor any future holders of the Notes:

 

The Borrower:

 

New Plan ExcelRealty Trust, Inc.1120 Avenue of the Americas; 12th FloorNew York, New York 10036Attention:              John B. Roche,Chief Financial OfficerTelephone:            (212) 869–3000Telecopy:              (212) 869–3989

 

with a copyto:

 

New Plan ExcelRealty Trust, Inc.1120 Avenue of the AmericasNew York, New York 10036Attention:              Steven F. Siegel,Esq., General CounselTelephone:            (212) 869–3000Telecopy:              (212) 869-7460

 

TheAdministrative Agent:

 

Fleet NationalBank100 Federal StreetBoston, Massachusetts 02110Attention:              Real EstateDivision

 

with a copy to:

 

Fleet National Bank

115 Perimeter Center Place, N.E.Suite 500Atlanta, Georgia 30346Attention:              William Lamb, VicePresidentTelephone:            (770) 390-6547Telecopy:              (770) 390-8434

 

except thatany notice, request or demand by the Borrower to or upon the AdministrativeAgent or the Lenders pursuant to Section 2.8 shall not be effective untilreceived.  Any party to a Loan Documentmay rely on signatures of the parties thereto which are transmitted bytelecopier or other electronic means as fully as if originally signed.

 

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11.3         No Waiver; Cumulative Remedies.

 

No failure toexercise and no delay in exercising any right, remedy, power or privilege underany Loan Document shall operate as a waiver thereof; nor shall any single orpartial exercise of any right, remedy, power or privilege under any LoanDocument preclude any other or further exercise thereof or the exercise of anyother right, remedy, power or privilege. The rights, remedies, powers and privileges under the Loan Documents arecumulative and not exclusive of any rights, remedies, powers and privilegesprovided by law.

 

11.4         Survival of Representations andWarranties.

 

Allrepresentations and warranties made under the Loan Documents and in anydocument, certificate or statement delivered pursuant hereto or in connectiontherewith shall survive the execution and delivery of the Loan Documents.  After the termination of this Agreement inaccordance with its terms, without any extension thereof, the payment in fullof all obligations of the Borrower under the Loan Documents and the expirationof any obligations of the Borrower hereunder which survive the termination of thisAgreement, the Borrower shall have no liability to the Lenders under suchrepresentations and warranties, except that the foregoing shall not apply withrespect to any claim, action or proceeding made or brought under any suchrepresentations or warranties prior to such termination or payment.

 

11.5         Payment of Expenses and Taxes.

 

The Borroweragrees, promptly upon presentation of a statement or invoice therefor, andwhether any Loan is made (i) to pay or reimburse FNB, Administrative Agent andLead Arranger for all of their reasonable out–of–pocket costs andexpenses reasonably incurred in connection with the development, preparation,negotiation and execution of, the Loan Documents, the syndication of the loantransaction evidenced by this Agreement (whether or not such syndication iscompleted) and any amendment, supplement or modification hereto (whether or notexecuted), any documents prepared in connection therewith and the consummationof the transactions contemplated thereby, including, without limitation, thereasonable fees and disbursements of Special Counsel, (ii) to pay or reimburseeach 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 andany enforcement or collection proceedings resulting therefrom (including,without limitation, any reasonable costs incurred after the entry of judgmentin an attempt to collect money due in the judgment) or in connection with thenegotiation of any restructuring or “work–out” (whether consummated ornot) 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 CreditParty harmless from and against, any and all recording and filing fees and anyand all liabilities with respect to, or resulting from any delay in paying,stamp, excise and other similar taxes, if any, which may be payable ordetermined to be payable in connection with the execution and delivery of, orconsummation 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 andhold each Credit Party and each of their respective officers, directors,employees, affiliates, agents, controlling persons and attorneys (as used inthis Section, each an “indemnified person”) harmless from and

 

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against any and all otherliabilities, obligations, claims, losses, damages, penalties, actions,judgments, suits, costs, expenses or disbursements of any kind or naturewhatsoever (including, without limitation, reasonable counsel fees anddisbursements) with respect to any claim, investigation or proceeding from anythird party relating to this Agreement or the Loan Documents, including theenforcement and performance of the Loan Documents and the use of the proceedsof the Loans (all the foregoing, collectively, the “indemnified liabilities”),whether or not any such indemnified person is a party to this Agreement or theLoan Documents, and to reimburse each indemnified person for all reasonablelegal and other expenses incurred in connection with investigating or defendingany indemnified liabilities, and, if and to the extent that the foregoingindemnity may be unenforceable for any reason, the Borrower agrees to make themaximum payment permitted or not prohibited under applicable law; provided,however, that the Borrower shall have no obligation hereunder to payindemnified liabilities to any Credit Party arising from (A) the grossnegligence or willful misconduct of such Credit Party or (B) disputes solelybetween the Credit Parties and which are not related to any act or failure toact on the part of the Borrower or the failure of the Borrower to perform anyof its obligations under this Agreement or the Loan Documents.

 

Notwithstandingthe foregoing, the fees and expenses referred to in clause (iv) of thepreceding paragraph shall not be payable by the Borrower if (x) any suchenforcement action brought by such Credit Party is dismissed, with prejudice,on the pleadings or pursuant to a motion made by the Borrower for summaryjudgment, and (y) if such Credit Party appeals such dismissal, such dismissalis affirmed and the time for any further appeals has expired.  The obligations of the Borrower under thisSection shall survive the termination of this Agreement and the Commitments andthe payment of the Notes and all other amounts payable under the LoanDocuments.

 

11.6         Lending Offices.

 

Each Lendershall have the right at any time and from time to time to transfer its Loans toa different office, provided that such Lender shall promptly notify theAdministrative Agent and the Borrower of any such change of office.  Such office shall thereupon become suchLender’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 greateramount under Section 2.13, 2.14 or 2.16 as a result of a transfer of any suchLoans to a different office of such Lender than it would be entitled toimmediately prior thereto unless such claim would have arisen even if suchtransfer had not occurred.

 

11.7         Successors and Assigns.

 

(a)           The Loan Documents shall be bindingupon and inure to the benefit of the Borrower, the Lenders, the AdministrativeAgent, all future holders of the Notes and their respective successors andassigns, except that the Borrower may not assign, delegate or transfer any ofits rights or obligations under the Loan Documents without the prior writtenconsent of the Administrative Agent and all of the Lenders.

 

(b)           Each Lender shall have the right atany time, upon written notice to the Administrative Agent of its intent to doso, to sell, assign, transfer or negotiate all or any part of

 

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such Lender’s rights and/orobligations under the Loan Documents to one or more of its Affiliates, to oneor more of the other Lenders (or to Affiliates of such other Lenders) or, withthe prior written consent of the Borrower, and the Administrative Agent (whichconsent, from each of them, shall not be unreasonably withheld or delayed andshall not be required from the Borrower upon the occurrence and during thecontinuance of an Event of Default), to sell, assign, transfer or negotiate allor any part of such Lender’s rights and obligations under the Loan Documents toany other bank, insurance company, pension fund, mutual fund or other financialinstitution, provided that (a) any such bank, insurance company, pensionfund, 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 otherwiseapproved by the Administrative Agent, (b) unless otherwise approved by theAdministrative Agent and the Borrower (which consent from Borrower shall not beunreasonably withheld or delayed and shall not be required from Borrower uponthe occurrence and during the continuance of an Event of Default), suchassignee shall acquire an interest in the Loans of not less than $5,000,000unless such assignee is acquiring all of the assigning Lender’s Commitment,(c) such sale, assignment, transfer or registration is subject to theterms of the intercreditor agreement dated of even date herewith among theLenders 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 frominfluence or control by, the Borrower or any Subsidiary Guarantor or anyAffiliate thereof, which rights shall instead be allocated pro rata among theother remaining Lenders, and (e) there shall be paid to the AdministrativeAgent by the assigning Lender a fee (the “Assignment Fee”) of $3,500.  For each assignment, the parties to such assignmentshall execute and deliver to the Administrative Agent for its acceptance andrecording an Assignment and Assumption Agreement.  Upon such execution, delivery, acceptance and recording by theAdministrative Agent, from and after the effective date specified in suchAssignment and Assumption Agreement, the assignee thereunder shall be a partyhereto and, to the extent provided in such Assignment and Assumption Agreement,the assignor Lender thereunder shall be released from its obligations under theLoan Documents.  The Borrower agreesupon written request of the Administrative Agent and at the Borrower’s expenseto execute and deliver (1) to such assignee, a Note, dated the effective dateof such Assignment and Assumption Agreement, in an aggregate principal amountequal to the Loans assigned to, and Commitments assumed by, such assignee and(2) to such assignor Lender, a Note, dated the effective date of suchAssignment and Assumption Agreement, in an aggregate principal amount equal tothe balance of such assignor Lender’s Loans and Commitment, if any, and eachassignor Lender shall cancel and return to the Borrower its existing Note.  Upon any such sale, assignment or othertransfer, the Commitment Amounts set forth in Exhibit B shall beadjusted accordingly by the Administrative Agent and a new Exhibit Bshall be distributed by the Administrative Agent to the Borrower and eachLender.

 

(c)           Each Lender may grant participationsin all or any part of its Loans, its Note and its Commitment to one or morebanks, insurance companies, financial institutions, pension funds or mutualfunds, provided that (i) such Lender’s obligations under the Loan Documentsshall remain unchanged, (ii) such Lender shall remain solely responsible to theother parties to the Loan Documents for the performance of such obligations,(iii) the Borrower, the Administrative Agent and the other Lenders shallcontinue to deal solely and directly with such Lender in connection with suchLender’s rights and obligations under the Loan Documents, (iv) no sub–participationsshall be permitted and (v) the voting rights of any holder of any

 

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participation shall be limitedto 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 amountspayable hereunder, and (C) postpone any date fixed for the payment of principalof, or interest on the Notes or any fees or other amounts payablehereunder.  The Borrower acknowledgesand 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 anyinterest of any Lender hereunder any sum in excess of the sum which theBorrower would have been obligated to pay to such Lender in respect of suchinterest had such Lender not sold such participation.

 

(d)           If any (i) assignment made pursuantto 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 anyjurisdiction other than the United States of America or any State thereof, suchPerson shall furnish such certificates, documents or other evidence to theBorrower and the Administrative Agent, in the case of clause (i) and to theBorrower 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’sexemption from U.S. withholding taxes with respect to any payments under orpursuant to the Loan Documents because such Person is eligible for the benefitsof a tax treaty which provides for a zero percent rate of tax on any paymentsunder the Loan Documents or because any such payments to such Person areeffectively connected with the conduct by such Person of a trade or business inthe United States.

 

(e)           No Lender shall, as between and amongthe Borrower, the Administrative Agent and such Lender, be relieved of any ofits obligations under the Loan Documents as a result of any sale, assignment,transfer or negotiation of, or granting of participations in, all or any partof its Loans, its Commitment or its Note, except that a Lender shall berelieved 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 itsNote pursuant to paragraph (b) above.

 

(f)            Notwithstanding anything to thecontrary contained in this Section, any Lender may at any time or from time totime assign all or any portion of its rights under the Loan Documents to aFederal Reserve Bank, provided that any such assignment shall not release suchassignor from its obligations thereunder.

 

11.8         [Intentionally Omitted].

 

11.9         Counterparts.

 

Each LoanDocument (other than the Notes) may be executed by one or more of the partiesthereto on any number of separate counterparts and all of said counterpartstaken together shall be deemed to constitute one and the same document.  It shall not be necessary in making proof ofany Loan Document to produce or account for more than one counterpart signed bythe party to be charged.  A telecopiedcounterpart of any Loan Document or to any document evidencing, and of any anamendment, modification, consent or waiver to or of any Loan Document shall bedeemed to be an originally executed counterpart.  A set of the copies of the Loan Documents signed by all theparties thereto shall be deposited with each of the Borrower and theAdministrative Agent.  Any party to aLoan Document may rely upon the signatures of

 

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any other party thereto whichare transmitted by telecopier or other electronic means to the same extent asif 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 orinterest thereon, or receive any collateral in respect thereof (whethervoluntarily or involuntarily, by set–off, pursuant to events orproceedings 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 anyother Lender in respect of such other Lender’s Loans or interest thereon, suchBenefited Lender shall purchase for cash from each of the other Lenders suchportion of each such other Lender’s Loans and shall provide each of such otherLenders with the benefits of any such collateral, or the proceeds thereof, asshall be necessary to cause such Benefited Lender to share the excess paymentor benefits of such collateral or proceeds ratably with each of the Lenders,provided, however, that if all or any portion of such excess payment orbenefits is thereafter recovered from such Benefited Lender, such purchaseshall be rescinded, and the purchase price and benefits returned, to the extentof such recovery, but without interest. The Borrower agrees that each Lender so purchasing a portion of anotherLender’s Loans may exercise all rights of payment (including, withoutlimitation, rights of set–off, to the extent not prohibited by law) withrespect to such portion as fully as if such Lender were the direct holder ofsuch portion.

 

(b)           In addition to any rights andremedies of the Lenders provided by law, upon the occurrence of an Event ofDefault and the acceleration of the obligations owing in connection with theLoan Documents, or at any time upon the occurrence and during the continuanceof an Event of Default under Section 9.1(a) or (b), each Lender shall have theright, without prior notice to the Borrower, any such notice being expresslywaived by the Borrower to the extent not prohibited by applicable law, to set–offand apply against any indebtedness, whether matured or unmatured, of theBorrower 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–mentionedevents.  To the extent not prohibited byapplicable law, the aforesaid right of set–off may be exercised by suchLender against the Borrower or against any trustee in bankruptcy, custodian,debtor in possession, assignee for the benefit of creditors, receiver, orexecution, judgment or attachment creditor of the Borrower, or against anyoneelse 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 thefact that such right of set–off shall not have been exercised by suchLender 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 ofexecution, subpoena, order or warrant. Each Lender agrees promptly to notify the Borrower and theAdministrative Agent after any such set–off and application made by suchLender, provided that the failure to give such notice shall not affect thevalidity of such set–off and application.

 

11.11       Lenders’ Representations.

 

Each Lenderrepresents to the Administrative Agent that, in acquiring its Note, it isacquiring the same for its own account for the purpose of investment and notwith a view to

 

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selling the same in connectionwith any distribution thereof, provided that the disposition of each Lender’sown Property shall at all times be and remain within its control.

 

11.12       Indemnity.

 

The Borroweragrees to indemnify and hold harmless each Credit Party and its affiliates,directors, officers, employees, affiliates, agents, controlling persons andattorneys (each an “Indemnified Person”) from and against any loss,reasonable cost, liability, damage or reasonable expense (including thereasonable fees and disbursements of counsel of such Indemnified Person,including all local counsel hired by any such counsel) incurred by suchIndemnified Person in investigating, preparing for, defending against, orproviding evidence, producing documents or taking any other action in respectof, any commenced or threatened litigation, administrative proceeding orinvestigation under any federal securities or tax laws or any other statute ofany jurisdiction, or any regulation, or at common law or otherwise, which isalleged to arise out of or is based upon: (i) any untrue statement of any material fact by the Borrower in any documentor schedule executed or filed with any Governmental Authority by or on behalfof the Borrower; (ii) any omission to state any material fact required to bestated in such document or schedule, or necessary to make the statements madetherein, in light of the circumstances under which made, not misleading; (iii)any acts, practices or omissions of the Borrower or its agents relating to theuse of the proceeds of any or all borrowings made by the Borrower which arealleged to be in violation of Section 2.15, or in violation of any federal securitiesor tax laws or of any other statute, regulation or other law of anyjurisdiction applicable thereto, whether or not such Indemnified Person is aparty thereto; or (iv) the Acquisitions. The indemnity set forth herein shallbe in addition to any other obligations, liabilities or other indemnificationsof the Borrower to each Indemnified Person under the Loan Documents or atcommon law or otherwise, and shall survive any termination of the LoanDocuments, the expiration of the Commitments and the payment of allindebtedness of the Borrower under the Loan Documents, provided that theBorrower shall have no obligation under this Section to an Indemnified Personwith respect to any of the foregoing to the extent found in a final judgment ofa court having jurisdiction to have resulted primarily out of the grossnegligence or willful misconduct of such Indemnified Person or arising solelyfrom claims between one such Indemnified Person and another such IndemnifiedPerson.

 

11.13       GoverningLaw.

 

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

 

11.14       Headings Descriptive.

 

Sectionheadings have been inserted in the Loan Documents for convenience only andshall not be construed to be a part thereof.

 

11.15       Severability.

 

Everyprovision of the Loan Documents is intended to be severable, and if any term orprovision thereof shall be invalid, illegal or unenforceable for any reason,the validity, legality

 

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and enforceability of theremaining provisions thereof shall not be affected or impaired thereby, and anyinvalidity, illegality or unenforceability in any jurisdiction shall not affectthe validity, legality or enforceability of any such term or provision in anyother jurisdiction.

 

11.16       Integration.

 

All exhibitsto a Loan Document shall be deemed to be a part thereof and shall be deemed aproper disclosure in all relevant provisions of the Loan Documents.  The Loan Documents embody the entireagreement and understanding among the Borrower, the Administrative Agent andthe Lenders with respect to the subject matter thereof and supersede all prioragreements and understandings among the Borrower, the Administrative Agent andthe Lenders with respect to the subject matter thereof.

 

11.17       Consent to Jurisdiction.

 

The Borrowerand each of the Credit Parties hereby irrevocably submit to the jurisdiction ofany New York State or Federal court sitting in the City of New York over anysuit, action or proceeding arising out of or relating to the LoanDocuments.  The Borrower and each of theCredit Parties hereby irrevocably waive, to the fullest extent permitted or notprohibited by law, any objection which any of them may now or hereafter have tothe laying of the venue of any such suit, action or proceeding brought in sucha court and any claim that any such suit, action or proceeding brought in sucha court has been brought in an inconvenient forum.  The parties intend that Section 5-1402 of the New York GeneralObligations Law shall apply to this Section 11.17.

 

11.18       Service of Process.

 

The Borrowerhereby agrees that process may be served against it in any suit, action orproceeding referred to in Section 11.17 by sending the same by first classmail, return receipt requested or by overnight courier service, to the addressof the Borrower set forth in Section 11.2 or in the applicable Loan Documentexecuted by the Borrower.  The Borrowerhereby agrees that any such service (i) shall be deemed in every respecteffective 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 bevalid personal service upon and personal delivery to it.

 

11.19       No Limitation on Service or Suit.

 

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

 

11.20       WAIVER OF TRIAL BY JURY.

 

THEADMINISTRATIVE AGENT, THE LENDERS AND THE BORROWER HEREBY KNOWINGLY,VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO A TRIALBY JURY IN RESPECT OF ANY LITIGATION

 

74

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ARISING OUT OF, UNDER OR INCONNECTION WITH THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATEDTHEREIN.  FURTHER, THE BORROWER HEREBYCERTIFIES THAT NO REPRESENTATIVE OR AGENT OF THE ADMINISTRATIVE AGENT, THELENDERS, OR COUNSEL TO THE ADMINISTRATIVE AGENT OR THE LENDERS, HASREPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE ADMINISTRATIVE AGENT OR THELENDERS WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVEROF RIGHT TO JURY TRIAL PROVISION.  THEBORROWER ACKNOWLEDGES THAT THE ADMINISTRATIVE AGENT AND THE LENDERS HAVE BEENINDUCED TO ENTER INTO THIS AGREEMENT BY, INTER ALIA, THE PROVISIONS OF THISSECTION.

 

11.21       TERMINATION.

 

After thetermination of this Agreement in accordance with its terms, without anyextension thereof, and the payment in full of all obligations of the Borrowerunder the Loan Documents (including without limitation, all principal,interest, Facility Fees and other amounts payable hereunder and under theNotes), the obligations of the Borrower hereunder (other than those which arestated herein to survive any termination of this Agreement) shall terminate,except that the foregoing shall not apply with respect to any claim, action orproceeding made or brought under any other provision of the Loan Documentsprior to such termination or payment. At the request of the Borrower, each Lender whose obligations under theNotes have been fully paid shall promptly return to the Borrower its Note marked“paid” or shall deliver other evidence that such Lender has received fullpayment of such obligations.

 

11.22       REPLACEMENT NOTES.

 

Upon receiptof evidence reasonably satisfactory to the Borrower of the loss, theft,destruction or mutilation of any Note, and in the case of any such loss, theftor destruction, upon delivery by the relevant Lender of an indemnity agreementreasonably satisfactory to the Borrower or, in the case of any such mutilation,upon surrender and cancellation of the applicable Note, the Borrower willexecute and deliver, in lieu thereof, a replacement Note, identical in form andsubstance to the applicable Note and dated as of the date of the applicableNote and upon such execution and delivery all references in the Loan Documentsto such Note shall be deemed to refer to such replacement Note.

 

11.23       INTERCREDITOR AGREEMENT.

 

The Lendersand Administrative Agent hereby acknowledge and agree that all references tothe “Credit Agreement” and the “Loan” set forth in that certain IntercreditorAgreement dated as of March 1, 2002, among the Lenders executed in connectionwith the Original Loan Agreement shall be deemed references to the Agreementand the Loan (as such terms are defined herein), respectively.

 

 

[SIGNATURES COMMENCE ON FOLLOWING PAGE]

 

75

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IN WITNESSWHEREOF, the parties hereto have caused this Agreement to be duly executed anddelivered by their proper and duly authorized officers as of the day and yearfirst above written.

 

 
|   | NEW PLAN  EXCEL REALTY TRUST, INC. |
|--------|------------------------------------|
|   |                               |
|   |                               |
|   | By:                                |    /s/  John B. Roche |   |
|   |                               |    John  B. Roche, |
|   |                               |    Chief  Financial Officer |

 

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|   | FLEET  NATIONAL BANK, a national banking  association, individually and as Administrative  Agent |
|--------|--------------------------------------------------------------------------------------------------|
|   |                                                                                             |
|   |                                                                                             |
|   | By:                                                                                              |    /s/  Bill Lamb |   |
|   |                                                                                             |    William  Lamb |
|   |                                                                                             |    Vice  President |

 

 

Fleet National Bank115 Perimeter Center Place, N.E.Suite 500Atlanta, Georgia  30346Attn:  William LambFacsimile:  770/390-8434

 

and

 

Fleet National Bank100 Federal StreetBoston, Massachusetts  02110Attn:  Real Estate DivisionFacsimile:  617/434-7108

 

77

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|   | CITICORP  NORTH AMERICA, INC. |
|--------|-------------------------------|
|   |                          |
|   |                          |
|   | By:                           |    /s/  Michael Chlopak |   |
|   |                          |    Michael  Chlopak |
|   |                          |    Vice  President |

 

 

Citicorp North America, Inc.390 Greenwich Street1st FloorNew York, New York 10022Attn:  Mr. Michael ChlopakFacsimile:  (212) 723-8380

 

and

 

Citicorp North America, Inc.2 Penns WaySuite 200New Castle, Delaware 19720Attn:  Ms. Lizanne BradleyFacsimile:  (302) 894-6120

 

78

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|   | BANK OF  AMERICA, N.A. |
|--------|------------------------|
|   |                   |
|   |                   |
|   | By:                    |    /s/  Michael Edwards |   |
|   |                   |    Michael  Edwards |
|   |                   |    Managing  Director |

 

 

Bank of America, N.A.231 South LaSalle St., 12th FloorChicago, Illinois 60697Attn:  Mr. Jeffrey KahlFacsimile:  (312) 974-4970

 

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|   | BANK ONE, NA |
|--------|--------------|
|   |         |
|   |         |
|   | By:          |    /s/  Patricia Leung |   |
|   |         |    Patricia  Leung |
|   |         |    Director,  Capital Markets, Inc. |

 

 

Bank One, NAMail Code IL1-03151 Bank One Plaza14th FloorChicago, Illinois 60670Attn:  Ms. Patricia LeungFacsimile:  (312) 732-5939

 

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|   | KEYBANK  NATIONAL ASSOCIATION, a  national banking association |
|--------|----------------------------------------------------------------|
|   |                                                           |
|   |                                                           |
|   | By:                                                            |    /s/  John C. Scott |   |
|   |                                                           |    John  C. Scott |
|   |                                                           |    Assistant  Vice-President |

 

 

KeyBank National Association1146 19th Street, NWFourth FloorWashington, DC 20036Attn:  Mr. John C. ScottFacsimile:  (202) 452-4925

 

and

 

KeyBank National Association1146 19th Street, NWFourth FloorWashington, DC 20036Attn:  Douglas FrazerFacsimile:  (202) 452-4925

 

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|   | THE BANK OF  NEW YORK |
|--------|-----------------------|
|   |                  |
|   |                  |
|   | By:                   |    /s/  Rick Laudisi |   |
|   |                  |    Rick  Laudisi |
|   |                  |    Vice  President |

 

 

The Bank of New YorkOne Wall StreetNew York, New York 10286Attn:  Mr. Rick LaudisiFacsimile:  (212) 809-9526

 

82

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| 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 |

 

i

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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                                   |

 

ii

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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                                     |

 

iii

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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                                                  |

 

iv

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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                |

 

v

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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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