Exhibit 10.36 





AMENDED AND RESTATED LOAN AGREEMENT


among


ACADIA CORTLANDT LLC,

as Borrower


and


BANK OF AMERICA, N.A.,

a national banking association,

as Administrative Agent


and


THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO


Dated as of October 26, 2010


BANC OF AMERICA SECURITIES LLC,

as Sole Arranger and Sole Book Manager





TABLE OF CONTENTS


	
  
 	
  
 	
  
 	
  
 	
  
 	
  
 
	
  
 	
  
 	
  
 	
  
 	
  
 	
 Page
 
	
  
 	
  
 	
  
 	
  
 	
  
 	

 
 
	
  
 	
  
 	
  
 	
  
 	
  
 	
  
 
	
 ARTICLE 1
 	
  
 	
 THE LOAN
 	
  
 	
 1
 
	
  
 	
 1.1.
 	
  
 	
 General
 Information and Exhibits
 	
  
 	
 1
 
	
  
 	
 1.2.
 	
  
 	
 Purpose
 	
  
 	
 2
 
	
  
 	
 1.3.
 	
  
 	
 Commitment
 to Lend
 	
  
 	
 2
 
	
  
 	
 1.4.
 	
  
 	
 Syndication/Special
 Condition to Future Advances
 	
  
 	
 2
 
	
  
 	
 1.5.
 	
  
 	
 Intentionally
 Omitted
 	
  
 	
 3
 
	
  
 	
 1.6.
 	
  
 	
 Evidence of
 Debt
 	
  
 	
 3
 
	
  
 	
 1.7.
 	
  
 	
 Interest
 Rates
 	
  
 	
 3
 
	
  
 	
 1.8.
 	
  
 	
 Prepayment
 	
  
 	
 4
 
	
  
 	
 1.9.
 	
  
 	
 Required
 Swap Transaction
 	
  
 	
 4
 
	
  
 	
 1.10.
 	
  
 	
 Late Charge
 	
  
 	
 5
 
	
  
 	
 1.11.
 	
  
 	
 Taxes
 	
  
 	
 5
 
	
  
 	
 1.12.
 	
  
 	
 Payment
 Schedule and Maturity Date
 	
  
 	
 6
 
	
  
 	
 1.13.
 	
  
 	
 Advances and
 Payments
 	
  
 	
 7
 
	
  
 	
 1.14.
 	
  
 	
 Administrative
 Agent Advances
 	
  
 	
 9
 
	
  
 	
 1.15.
 	
  
 	
 Defaulting
 Lender
 	
  
 	
 10
 
	
  
 	
 1.16.
 	
  
 	
 Several
 Obligations; No Liability, No Release
 	
  
 	
 12
 
	
  
 	
  
 	
  
 	
  
 	
  
 	
  
 
	
 ARTICLE 2
 	
  
 	
 ADDITIONAL
 COVENANTS AND AGREEMENTS
 	
  
 	
 12
 
	
  
 	
 2.1.
 	
  
 	
 Bank
 Accounts
 	
  
 	
 12
 
	
  
 	
 2.2.
 	
  
 	
 Intentionally
 Omitted
 	
  
 	
 12
 
	
  
 	
 2.3.
 	
  
 	
 Contracts
 	
  
 	
 12
 
	
  
 	
 2.4.
 	
  
 	
 Assignment
 of Contracts
 	
  
 	
 13
 
	
  
 	
 2.5.
 	
  
 	
 Financial
 Covenants
 	
  
 	
 13
 
	
  
 	
 2.6.
 	
  
 	
 Limitation
 on Debt
 	
  
 	
 14
 
	
  
 	
 2.7.
 	
  
 	
 Inspection
 	
  
 	
 14
 
	
  
 	
 2.8.
 	
  
 	
 Notice to
 Lenders
 	
  
 	
 15
 
	
  
 	
 2.9.
 	
  
 	
 Financial
 Statements
 	
  
 	
 15
 
	
  
 	
 2.10.
 	
  
 	
 Other
 Information
 	
  
 	
 15
 
	
  
 	
 2.11.
 	
  
 	
 Administrative
 Agent Fee
 	
  
 	
 15
 
	
  
 	
 2.12.
 	
  
 	
 Unused Fee
 	
  
 	
 15
 
	
  
 	
 2.13.
 	
  
 	
 Appraisal
 	
  
 	
 16
 
	
  
 	
 2.14.
 	
  
 	
 Payment of
 Withholding Taxes
 	
  
 	
 16
 
	
  
 	
 2.15.
 	
  
 	
 ERISA and
 Prohibited Transaction Taxes
 	
  
 	
 16
 
	
  
 	
  
 	
  
 	
  
 	
  
 	
  
 
	
 ARTICLE 3
 	
  
 	
 REPRESENTATIONS
 AND WARRANTIES
 	
  
 	
 17
 
	
  
 	
  
 	
  
 	
  
 	
  
 	
  
 
	
 ARTICLE 4
 	
  
 	
 DEFAULT AND
 REMEDIES
 	
  
 	
 18
 
	
  
 	
 4.1.
 	
  
 	
 Events of
 Default
 	
  
 	
 18
 
	
  
 	
 4.2.
 	
  
 	
 Remedies
 	
  
 	
 18
 













	
  
 	
  
 	
  
 	
  
 	
  
 	
  
 
	
 ARTICLE 5
 	
  
 	
 ADMINISTRATIVE
 AGENT
 	
  
 	
 20
 
	
  
 	
 5.1.
 	
  
 	
 Appointment
 and Authorization of Administrative Agent
 	
  
 	
 20
 
	
  
 	
 5.2.
 	
  
 	
 Delegation
 of Duties
 	
  
 	
 21
 
	
  
 	
 5.3.
 	
  
 	
 Liability of
 Administrative Agent
 	
  
 	
 21
 
	
  
 	
 5.4.
 	
  
 	
 Reliance by
 Administrative Agent
 	
  
 	
 22
 
	
  
 	
 5.5.
 	
  
 	
 Notice of
 Default
 	
  
 	
 22
 
	
  
 	
 5.6.
 	
  
 	
 Credit
 Decision; Disclosure of Information by Administrative Agent
 	
  
 	
 23
 
	
  
 	
 5.7.
 	
  
 	
 Indemnification
 of Administrative Agent
 	
  
 	
 24
 
	
  
 	
 5.8.
 	
  
 	
 Administrative
 Agent in Individual Capacity
 	
  
 	
 24
 
	
  
 	
 5.9.
 	
  
 	
 Successor
 Administrative Agent
 	
  
 	
 24
 
	
  
 	
 5.10.
 	
  
 	
 Releases;
 Acquisition and Transfers of Collateral
 	
  
 	
 25
 
	
  
 	
 5.11.
 	
  
 	
 Application
 of Payments
 	
  
 	
 26
 
	
  
 	
 5.12.
 	
  
 	
 Benefit
 	
  
 	
 27
 
	
  
 	
  
 	
  
 	
  
 	
  
 	
  
 
	
 ARTICLE 6
 	
  
 	
 GENERAL
 TERMS AND CONDITIONS
 	
  
 	
 27
 
	
  
 	
 6.1.
 	
  
 	
 Consents;
 Borrower’s Indemnity
 	
  
 	
 27
 
	
  
 	
 6.2.
 	
  
 	
 Miscellaneous
 	
  
 	
 28
 
	
  
 	
 6.3.
 	
  
 	
 Notices
 	
  
 	
 29
 
	
  
 	
 6.4.
 	
  
 	
 Payments Set
 Aside
 	
  
 	
 30
 
	
  
 	
 6.5.
 	
  
 	
 Successors
 and Assigns
 	
  
 	
 30
 
	
  
 	
 6.6.
 	
  
 	
 Confidentiality
 	
  
 	
 33
 
	
  
 	
 6.7.
 	
  
 	
 Set-off
 	
  
 	
 34
 
	
  
 	
 6.8.
 	
  
 	
 Sharing of
 Payments
 	
  
 	
 34
 
	
  
 	
 6.9.
 	
  
 	
 Amendments;
 Survival
 	
  
 	
 34
 
	
  
 	
 6.10.
 	
  
 	
 Costs and
 Expenses
 	
  
 	
 36
 
	
  
 	
 6.11.
 	
  
 	
 Tax Forms
 	
  
 	
 37
 
	
  
 	
 6.12.
 	
  
 	
 Further
 Assurances
 	
  
 	
 38
 
	
  
 	
 6.13.
 	
  
 	
 Inducement
 to Lenders
 	
  
 	
 39
 
	
  
 	
 6.14.
 	
  
 	
 Forum
 	
  
 	
 39
 
	
  
 	
 6.15.
 	
  
 	
 Interpretation
 	
  
 	
 39
 
	
  
 	
 6.16.
 	
  
 	
 No
 Partnership, etc
 	
  
 	
 39
 
	
  
 	
 6.17.
 	
  
 	
 Records
 	
  
 	
 40
 
	
  
 	
 6.18.
 	
  
 	
 Commercial
 Purpose
 	
  
 	
 40
 
	
  
 	
 6.19.
 	
  
 	
 WAIVER OF
 JURY TRIAL
 	
  
 	
 40
 
	
  
 	
 6.20.
 	
  
 	
 Service of
 Process
 	
  
 	
 40
 
	
  
 	
 6.21.
 	
  
 	
 USA Patriot
 Act Notice
 	
  
 	
 41
 
	
  
 	
 6.22.
 	
  
 	
 Entire
 Agreement
 	
  
 	
 41
 
	
  
 	
 6.23.
 	
  
 	
 Limitation
 on Liability
 	
  
 	
 41
 
	
  
 	
 6.24.
 	
  
 	
 Third
 Parties; Benefit
 	
  
 	
 42
 
	
  
 	
 6.25.
 	
  
 	
 Rules of
 Construction
 	
  
 	
 42
 
	
  
 	
 6.26.
 	
  
 	
 Cross-Default
 	
  
 	
 42
 
	
  
 	
 6.27.
 	
  
 	
 Lien Law
 	
  
 	
 42
 


iii









	
  
 	
  
 	
  
 
	
 EXHIBITS
 	
  
 	
  
 
	

 
 	
  
 	
  
 
	
  
 	
  
 
	
 EXHIBIT “A”
 	
 Legal
 Description of Land
 
	
 EXHIBIT “B”
 	
 Definitions
 and Financial Statements
 
	
 EXHIBIT “C”
 	
 Conditions
 Precedent to the Advance
 
	
 EXHIBIT
 “C-1”
 	
 Conditions
 Precedent to the Future Advance
 
	
 EXHIBIT “D”
 	
 Monthly
 Amortization Schedule
 
	
 EXHIBIT “E”
 	
 Intentionally
 Omitted
 
	
 EXHIBIT “F”
 	
 Advances
 
	
 EXHIBIT
 “F-1”
 	
 Draw Request
 
	
 EXHIBIT “G”
 	
 Survey
 Requirements
 
	
 EXHIBIT “H”
 	
 Intentionally
 Omitted
 
	
 EXHIBIT “I”
 	
 Leasing and
 Tenant Matters
 
	
 EXHIBIT “J”
 	
 Intentionally
 Omitted
 
	
 EXHIBIT “K”
 	
 Intentionally
 Omitted
 
	
 EXHIBIT “L”
 	
 Assignment
 and Assumption
 
	
 EXHIBIT “M”
 	
 Note
 
	
 EXHIBIT “N”
 	
 Schedule of
 Lenders and Other Parties
 
	
  
 	
 EXHIBIT “O” Swap Contracts
 


iv





AMENDED AND RESTATED LOAN
AGREEMENT


          THIS AMENDED
AND RESTATED LOAN AGREEMENT (this “Agreement”) dated as of October 26, 2010 is
made by and among each lender from time to time a party hereto (individually, a
“Lender” and collectively, the “Lenders”), and BANK OF AMERICA, N.A., a
national banking association (“BofA”) as Administrative Agent, and ACADIA
CORTLANDT LLC, a Delaware limited liability company (“Borrower”).


          WHEREAS,
BofA, People’s United Bank (“People’s”), Borrower and Administrative Agent are
parties to that certain Loan Agreement dated as of July 29, 2009 (the “Original
Loan Agreement”);


          WHEREAS,
pursuant to an Assignment and Assumption Agreement dated as of the date hereof
by and between People’s, as assignor, and BofA, as assignee, People’s assigned
all of its interest under the Original Agreement to BofA and, following such
assignment, BofA was the only Lender; and


          WHEREAS,
BofA, Administrative Agent and Borrower have agreed that the Loan Agreement be
modified, amended and restated in its entirety in the manner hereinafter set
forth.


          NOW,
THEREFORE, in consideration of the mutual promises and agreements herein
contained, Borrower, Administrative Agent and Lenders hereby agree that the
terms, conditions and provisions of the Original Loan Agreement are hereby
amended and restated in their entirety as follows:


ARTICLE 1

THE LOAN


          1.1. General
Information and Exhibits. This Agreement includes the Exhibits listed below
which are marked by an “X”, all of which Exhibits are attached hereto and made a
part hereof for all purposes. Borrower and Lenders agree that if any Exhibit to
be attached to this Agreement contains blanks, the same shall be completed
correctly and in accordance with this Agreement prior to or at the time of the
execution and delivery thereof.



	
  
 	
  
 	
  
 	
  
 
	
 X           
 	
 Exhibit “A”
 	
 -
 	
 Legal
 Description of the Land
 
	
 X           
 	
 Exhibit “B”
 	
 -
 	
 Definitions
 and Financial Statements
 
	
 X           
 	
 Exhibit “C”
 	
 -
 	
 Conditions
 Precedent to the Advance
 
	
 X           
 	
 Exhibit
 “C-1”
 	
 -
 	
 Conditions
 Precedent to Advances in Excess of the Initial Advance
 
	
 X           
 	
 Exhibit “D”
 	
 -
 	
 Monthly
 Amortization Schedule
 
	
               
 	
 Exhibit “E”
 	
 -
 	
 Intentionally
 Omitted
 
	
 X           
 	
 Exhibit “F”
 	
 -
 	
 Advances
 
	
 X           
 	
 Exhibit
 “F-1”
 	
 -
 	
 Draw Request
 
	
 X           
 	
 Exhibit “G”
 	
 -
 	
 Survey
 Requirements
 













	
  
 	
  
 	
  
 	
  
 
	
               
 	
 Exhibit “H”
 	
 -
 	
 Intentionally
 Omitted
 
	
 X           
 	
 Exhibit “I”
 	
 -
 	
 Leasing and
 Tenant Matters
 
	
               
 	
 Exhibit “J”
 	
 -
 	
 Intentionally
 Omitted
 
	
               
 	
 Exhibit “K”
 	
 -
 	
 Intentionally
 Omitted
 
	
 X           
 	
 Exhibit “L”
 	
 -
 	
 Assignment
 and Assumption
 
	
 X           
 	
 Exhibit “M”
 	
 -
 	
 Loan Note
 
	
 X           
 	
 Exhibit “N”
 	
 -
 	
 Schedule of
 Lenders and Other Parties
 
	
 X           
 	
 Exhibit “O”
 	
 -
 	
 Swap
 Contracts
 


2





The Exhibits contain other terms, provisions and conditions applicable
to the Loan. Capitalized terms used in this Agreement shall have the meanings
assigned to them in Exhibit “B”. This Agreement and the other Loan
Documents, which must be in form, detail and substance satisfactory to Lenders,
evidence the agreements of Borrower and Lenders with respect to the Loan.
Borrower shall comply with all of the Loan Documents. 


                    1.2.
Purpose. The proceeds of the Loan shall only be used by Borrower to (i)
refinance a portion of the acquisition cost of the Land and the Improvements,
(ii) fund other costs related to the Land and the Improvements and (iii) fund
closing costs in connection with the Loan. 


                    1.3.
Commitment to Lend. Borrower agrees to borrow from each Lender, and each
Lender severally agrees to make advances of its Pro Rata Share of the Loan
proceeds to Borrower in amounts at any one time outstanding not to exceed such
Lender’s Pro Rata Share of the Loan and (except for Administrative Agent with
respect to Administrative Agent Advances), on the terms and subject to the
conditions set forth in this Agreement, including, without limitation, Section
1.4, and Exhibit “C”, Exhibit “C-1” and Exhibit “F”
attached to this Agreement. Lender’s commitment to lend shall expire and
terminate automatically if the Loan is prepaid in full. The Loan is not
revolving. Any amount repaid may not be reborrowed. 


                    1.4.
Syndication/Special Condition to Future Advances.
Notwithstanding anything to the contrary contained herein, Lenders shall have
no obligation whatsoever to make the Future Advance unless, within thirty (30)
months of the date hereof, one or more Eligible Assignees, acceptable to
Administrative Agent in Administrative Agent’s sole and absolute discretion,
become Lenders with Commitments which will result in a positive Syndication
Increase Amount (as hereinafter defined). The Loan Amount on the date hereof is
the Initial Advance Amount. Administrative Agent shall endeavor to locate one
or more Eligible Assignees, acceptable to Administrative Agent in its sole and
absolute discretion, which are willing to become Lenders hereunder with
Commitments of up to an aggregate amount equal to the sum of (x) the Future Advance
Amount and (y) $10,000,000. The first $10,000,000 of Commitments taken by new
Lenders after the date hereof, if any, shall be applied to reduce the
Commitment of BofA to $40,000,000. To the extent that, within thirty (30)
months after the date hereof, new Lenders enter into Assignment and Assumption
Agreements to accept commitments in the aggregate amount in excess of
$10,000,000 (the amount of such excess, the “Syndication Increase Amount”),
such occurrence shall constitute a “Successful Syndication”. BofA shall have no
liability to Borrower or any other Person if, for any reason whatsoever,
Eligible Assignees acceptable to BofA, in its sole and absolute discretion, do
not become Lenders within thirty (30) months of the date hereof in such manner
as to allow for the Future Advance to be available to Borrower in accordance
with the terms hereof. If a Successful Syndication does not, for any reason
whatsoever, occur within six (6) months of the date hereof, then Borrower
shall, on the date following the six (6) month anniversary of the date hereof,
be required to make a mandatory principal payment in the amount (the “Lump Sum
Amortization Payment”) sufficient to reduce the Principal Debt to the sum of
(x) $40,000,000 plus (y) the Commitment of any Lender other than BofA. It shall
be a condition to any Syndication Increase Amount taking effect that (i)
Borrower and all Lenders enter into an agreement modifying or supplementing
this Agreement, in form and substance acceptable to Administrative Agent,
setting forth the





Commitment and Pro Rata Share of each Lender, the Syndication Increase
Amount and Future Advance Amount as of such date (subject to adjustment in
accordance with the definition of Future Advance Amount) and (ii) Borrower
shall execute such Future Advance Notes and replacement initial Advance Notes
as Administrative Agent shall reasonably request to effectuate the syndication
of Commitments contemplated hereby. If a Successful Syndication does not, for
any reason whatsoever, occur within thirty (30) months of the date hereof, then
the commitment to lend the Future Advance shall terminate and the Lenders shall
have no obligation to make, and Borrower shall not be entitled to receive, any
Future Advance. 


                    1.5.
Intentionally Omitted.


                    1.6.
Evidence of Debt. Amounts of the Loan made by each Lender shall be
evidenced by one or more accounts or records maintained by such Lender and by
Administrative Agent in the ordinary course of business. The accounts or
records maintained by Administrative Agent and each Lender shall be conclusive
absent manifest error of the amount of the Loan made by Lenders to Borrower and
the interest and payments thereon. Any failure to so record or any error in
doing so shall not, however, limit or otherwise affect the obligation of
Borrower hereunder to pay any amount owing with respect to the Indebtedness. In
the event of any conflict between the accounts and records maintained by any
Lender and the accounts and records of Administrative Agent in respect of such
matters, the accounts and records of Administrative Agent shall control in the
absence of manifest error. 


                    1.7.
Interest Rates.


                    1.7.1.
Interest Rate.


                    (a)
The unpaid principal balance of this Loan from day to day outstanding which is
not past due, shall bear interest at a fluctuating rate of interest equal to
the BBA LIBOR Daily Floating Rate plus the LIBOR Margin. The “BBA LIBOR Daily
Floating Rate” shall mean a fluctuating rate of interest equal to the British
Bankers Association LIBOR Rate (“BBA LIBOR”), as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as selected by
Administrative Agent from time to time) as determined for each Business Day at
approximately 11:00 a.m. London time two (2) London Banking Days prior to the
date in question, for U.S. Dollar deposits (for delivery on the first day of
such interest period) with a one month term, as adjusted from time to time in
Administrative Agent’s sole discretion for reserve requirements, deposit
insurance assessment rates and other regulatory costs. If such rate is not
available at such time for any reason, then the rate will be determined by such
alternative method as reasonably selected by Administrative Agent. A “London
Banking Day” is a day on which banks in London are open for business and
dealing in offshore dollars. Interest shall be computed for the actual number
of days which have elapsed, on the basis of a 360-day year. 


                    (b)
If Administrative Agent determines that no adequate basis exists for
determining the BBA LIBOR Daily Floating Rate or that the BBA LIBOR Daily
Floating Rate will not adequately and fairly reflect the cost to Lenders of
funding the Loan, or that any applicable law or regulation or compliance
therewith by any Lender prohibits or restricts or makes impossible the charging of interest based on the BBA LIBOR
Daily Floating Rate and


2





such Lender so notifies Administrative Agent and Borrower, then until
Administrative Agent notifies Borrower that the circumstances giving rise to
such suspension no longer exist, interest shall accrue and be payable on the
unpaid principal balance of this Loan from the date Administrative Agent so
notifies Borrower until the Maturity Date of this Loan (whether by
acceleration, declaration, extension or otherwise) at a fluctuating rate of
interest equal to the Base Rate. Each Lender agrees to designate a different
Lending Office if such designation will avoid the need for such notice and will
not, in the good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender. 


                    1.7.2.
Past Due Rate. If any amount payable by Borrower under any Loan Document
is not paid when due (without regard to any applicable grace periods), such
amount shall thereafter bear interest at a fluctuating interest rate per annum
at all times equal to the Past Due Rate to the fullest extent permitted by
applicable law. Accrued and unpaid interest on past due amounts (including
interest on past due interest) shall be due and payable on demand, at a rate
per annum (the “Past Due Rate”) equal to the BBA LIBOR Daily Floating Rate (or,
if unavailable pursuant to Section 1.7.1, the Prime Rate) plus 6.2%. 


                    1.8.
Prepayment. Borrower may prepay the principal balance of this Loan, in
full at any time or in part from time to time, without fee, premium or penalty,
provided that: (a) Administrative Agent shall have actually received from Borrower
prior written notice of (i) Borrower’s intent to prepay, (ii) the amount of
principal which will be prepaid (the “Prepaid Principal”), and (iii) the date
on which the prepayment will be made; (b) each prepayment shall be in a minimum
amount of $1,000 or more (unless the prepayment retires the outstanding balance
of this Loan in full); and (c) each prepayment shall be in the amount of 100%
of the Prepaid Principal, plus accrued unpaid interest thereon to the date of
prepayment, plus any other sums which have become due to Administrative Agent
and Lenders under the Loan Documents on or before the date of prepayment but
have not been paid. If this Loan is prepaid in full, any commitment of Lenders
for further advances shall automatically terminate. 


                    1.9.
Required Swap Transaction. If at any time when there is not a Swap
Transaction approved by Administrative Agent in effect with respect to the
entire Principal Debt, the BBA LIBOR Daily Floating Rate equals or exceeds 3.0%
per annum, Borrower shall, within five (5) Business Days of notice from
Administrative Agent to Borrower of such event, purchase an interest rate cap
or swap with respect to the Loan (including the Future Advance Amount, unless
Lenders’ commitment with respect thereto has been terminated) for the period
remaining through the Maturity Date, or such lesser period as Administrative
Agent may approve in its discretion, with a BBA LIBOR Daily Floating Rate
maximum rate (in the case of an interest rate cap) or a swapped rate (in the
case of an interest rate swap) specified by Administrative Agent. The Swap
Counterparty providing the Required Swap Transaction shall either be BofA or
have a long-term unsecured debt credit rating from the Rating Agencies of A-
(or its equivalent) or better. Borrower shall afford Administrative Agent a
right of first opportunity to provide all Required Swap Transactions but shall
not be required to purchase such Required Swap Transactions from Administrative
Agent or any Lender, provided that any Required Swap Transaction shall be
collaterally assigned to Administrative Agent as security for the Loan with an
acknowledgment of such assignment by the Swap Counterparty thereunder and
evidence of the due authorization, execution and delivery thereof, all in form
and substance reasonably acceptable to Administrative Agent. In the event that
(a) BofA is not the Swap Counterparty, if


3





the long-term unsecured debt obligations of the Swap Counterparty are
downgraded by the Rating Agency below “BBB+” or its equivalent or (b) the Swap
Counterparty shall default in any of its obligations under a Required Swap
Transaction and such default shall remain uncured for more than five (5)
Business Days after Administrative Agent sends notice to Borrower of such default
(provided, however, that, if a default by the Counterparty results in an Event
of Default, the foregoing five (5) Business Day cure period shall not apply
with respect to such other default), Borrower shall, at the request of
Administrative Agent, promptly but in all events within five (5) Business Days
of Administrative Agent’s request, (x) replace the Required Swap Transaction
with an agreement having identical payment terms and maturity and which is
otherwise in form and substance substantially similar to the initial Required
Swap Transaction and otherwise reasonably acceptable to Lender with a cap
provider, the long-term unsecured debt of which is rated at least “A-” (or its
equivalent) by each Rating Agency or (y) cause the Swap Counterparty to provide
collateral reasonably acceptable to Administrative Agent. In the event that
Borrower fails to maintain the Required Swap Transaction as provided in this
Section 1.9, Administrative Agent may purchase the Required Swap Transactions
and the cost incurred by Administrative Agent in connection therewith shall be
paid by Borrower to Administrative Agent with interest thereon at the Past Due
Rate from the date which is five (5) days after demand until such cost is paid
by Borrower to Administrative Agent. 


                    1.10.
Late Charge. If Borrower shall fail to make any payment due hereunder or
under the terms of any Note within fifteen (15) days after the date such
payment is due, Borrower shall pay to the applicable Lender or Lenders on
demand a late charge equal to 4% of such payment. Such fifteen (15) day period
shall not be construed as in any way extending the due date of any payment. The
“late charge” is imposed for the purpose of defraying the expenses of a Lender
incident to handling such defaulting payment. This charge shall be in addition
to, and not in lieu of, any other remedy Lenders may have and is in addition to
any fees and charges of any agents or attorneys which Administrative Agent or
Lenders may employ upon the occurrence of a Default, whether authorized herein
or by Law. 


                    1.11.
Taxes.


                    (a)
Any and all payments by Borrower to or for the account of Administrative Agent
or any Lender under any Loan Document shall be made free and clear of and without
deduction for any and all present or future taxes, duties, levies, imposts,
deductions, assessments, fees, withholdings or similar charges, and all
liabilities with respect thereto, excluding, in the case of Administrative
Agent and any Lender, taxes imposed on or measured by its net income, and
franchise taxes imposed on it (in lieu of net income taxes), by the
jurisdiction (or any political subdivision thereof) under the Laws of which
Administrative Agent or such Lender, as the case may be, is organized or
maintains a lending office (all such non-excluded taxes, duties, levies,
imposts, deductions, assessments, fees, withholdings or similar charges, and
liabilities being hereinafter referred to as “Taxes”). If Borrower shall be
required by any Laws to deduct any Taxes from or in respect of any sum payable
under any Loan Document to Administrative Agent or any Lender, (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section), Administrative Agent and such Lender receives an amount equal to
the sum it would have received had no such deductions been made, (ii) Borrower
shall make such deductions, (iii) Borrower shall pay the full amount deducted
to the relevant taxation authority or other authority


4





in accordance with applicable Laws, and (iv) within thirty (30) days
after the date of such payment, Borrower shall furnish to Administrative Agent
(which shall forward the same to such Lender) the original or a certified copy
of a receipt evidencing payment thereof. 


                    (b)
In addition, Borrower agrees to pay any and all present or future stamp, court
or documentary taxes and any other excise or property taxes or charges or similar
levies which arise from any payment made under any Loan Document or from the
execution, delivery, performance, enforcement or registration of, or otherwise
with respect to, any Loan Document (hereinafter referred to as “Other Taxes”). 


                    (c)
If Borrower shall be required by the Laws of any jurisdiction outside the
United States to deduct any Taxes or Other Taxes from or in respect of any sum
payable under any Loan Document to Administrative Agent or any Lender, Borrower
shall also pay to Administrative Agent (for the account of such Lender) or to
such Lender, at the time interest is paid, such additional amount that such
Lender specifies is necessary to preserve the after-tax yield (after factoring
in United States (federal and state) taxes imposed on or measured by net
income) Lender would have received if such deductions (including deductions
applicable to additional sums payable under this Section) had not been made. 


                    (d)
Borrower agrees to indemnify Administrative Agent and each Lender for the full
amount of Taxes and Other Taxes (including any Taxes or Other Taxes imposed or
asserted by any jurisdiction on amounts payable under this Section) paid by
Administrative Agent and such Lender and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto, in each case
whether or not such Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Tribunal. Payment under this subsection (d) shall be
made within thirty (30) days after the date Lender or Administrative Agent
makes a demand therefor. 


                    (e)
Without prejudice to the survival of any other agreement of Borrower hereunder,
the agreements and obligations of Borrower contained in this Section shall
survive the termination of the Commitments and the payment in full of all the
other Indebtedness. 


                    1.12.
Payment Schedule and Maturity Date.


                    (a)
The principal of the Loan shall be due and payable in monthly installments
equal to the amount for the applicable month (by specific calendar months) set
forth on Exhibit “D” (each such monthly amount, a “Monthly Principal
Amount”), which principal amortization payments shall be applied first to the
principal evidenced by the Future Advance Notes, if any, and then to the
principal evidenced by the Initial Advance Notes. Such principal amortization
payments shall be due and payable on December 1, 2010 and on the first day of
each succeeding month thereafter until the Loan shall have been fully paid and
satisfied; and accrued unpaid interest on the Loan shall be due and payable on
November 1, 2010 and on the first day of each succeeding month thereafter until
all principal and accrued interest owing on the Loan shall have been fully paid
and satisfied; provided, that on the Maturity Date the entire principal balance
of the Loan then unpaid and all accrued interest then unpaid shall be finally
due and payable. 


5





                    (b)
Notwithstanding anything to the contrary in Section 1.12(a), (i) until the
Future Advance Determination Date, in lieu of principal amortization, on the
first day of each month the maximum Future Advance Amount shall be permanently
reduced by the amount of the Monthly Principal Amount and (ii) if Borrower is
required to make the Lump Sum Amortization Payment in accordance with Section
1.4, then no monthly principal amortization payments shall be required under
Section 1.12(b) unless and until the Future Advance is made, but in any event
on the Maturity Date the entire principal balance of the Loan then unpaid and
all accrued interest then unpaid shall be finally due and payable. Nothing
contained in this Section 1.12(b) shall limit or reduce Borrower’s obligation
to make payments in respect of the principal amount of the Loan pursuant to any
provision of this Agreement (other than Section 1.12(a)) or any other Loan
Documents, including, without limitation, Section 1.4. 


                    1.13.
Advances and Payments.


                    (a)
The Loan shall be advanced as follows: (i) subject to Borrower’s satisfaction
of the conditions set forth in this Agreement including, without limitation, Exhibit
“C”, Exhibit “C-1” and Exhibit “F” hereto, the Initial
Advance in the Initial Advance Amount shall be advanced as a single, lump sum
advance and (ii) subject to the occurrence of a Successful Syndication prior to
the thirty (30) month anniversary of the date hereof and Borrower’s
satisfaction of the other conditions set forth in this Agreement including,
without limitation, Exhibit “C”, Exhibit “C-1” and Exhibit “F”
hereto, a single Future Advance in the Future Advance Amount shall be advanced
as a single, lump sum advance. Following receipt of a Draw Request,
Administrative Agent shall promptly provide each Lender with a copy of the Draw
Request. Administrative Agent shall notify each Lender telephonically (with
confirmation by facsimile) or by facsimile (with confirmation by telephone) not
later than 1:00 p.m. Administrative Agent’s Time two (2) Business Days prior to
the advance Funding Date for LIBOR Rate Principal advances, and one (1)
Business Day prior to the advance Funding Date for all other advances, of its
Pro Rata Share of the amount Administrative Agent has determined shall be advanced
in connection therewith (“Advance Amount”). In the case of an advance of the
Loan, each Lender shall make the funds for its Pro Rata Share of the Advance
Amount available to Administrative Agent not later than 11:00 a.m.
Administrative Agent’s Time on the Funding Date thereof. After Administrative
Agent’s receipt of the Advance Amount from Lenders, Administrative Agent shall
make proceeds of the Loan in an amount equal to the Advance Amount (or, if
less, such portion of the Advance Amount that shall have been paid to
Administrative Agent by Lenders in accordance with the terms hereof) available
to Borrower on the applicable Funding Date by advancing such funds to Borrower
in accordance with the provisions of Exhibit “F”.


                    (b)
All payments by Borrower shall be made without condition or deduction for any
counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein, all payments by Borrower hereunder shall be made to
Administrative Agent not later than 12:00 p.m. (Administrative Agent’s Time) on
the date specified herein. Administrative Agent shall distribute to each Lender
such funds as such Lender may be entitled to receive hereunder (i) on or before
3:00 p.m. (Administrative Agent’s Time) on the day Administrative Agent
receives such funds, if Administrative Agent has received such funds on or
before 12:00 p.m. (Administrative Agent’s Time), or (ii) on or before 12:00
p.m. (Administrative Agent’s Time) on the Business Day following the day
Administrative Agent receives such funds, if Administrative 


6





Agent receives such funds after 12:00 p.m. (Administrative Agent’s
Time). If Administrative Agent fails to timely pay any amount to any Lender in
accordance with this subsection, Administrative Agent shall pay to such Lender
interest at the Federal Funds Rate on such amount, for each day from the day
such amount was to be paid until it is paid to such Lender.


                    (c)
Except as otherwise provided herein, all payments by Borrower or any Lender shall
be made to Administrative Agent at Administrative Agent’s Office not later than
the time for such type of payment specified in this Agreement. All payments
received after such time shall be deemed received on the next succeeding
Business Day. All payments shall be made in immediately available funds in
lawful money of the United States of America. Whenever any payment falls due on
a day which is not a Business Day, such payment may be made on the next
succeeding Business Day.


                    (d)
Upon satisfaction of any applicable terms and conditions set forth herein,
Administrative Agent shall promptly make any amounts received in accordance
with the prior subsection available in like funds received as follows: (i) if
payable to Borrower, in accordance with Exhibit “F”, except as otherwise
specified herein, and (ii) if payable to any Lender, by wire transfer to such
Lender at the address specified in the Schedule of Lenders. 


                    (e)
Unless Borrower or any Lender has notified Administrative Agent, prior to the
date any payment is required to be made by it to Administrative Agent, that
Borrower or such Lender, as the case may be, will not make such payment,
Administrative Agent may assume that Borrower or such Lender, as the case may be,
has timely made such payment and may (but shall not be required to do so) in
reliance thereon, make available a corresponding amount to the person or entity
entitled thereto. If and to the extent that such payment was not in fact made
to Administrative Agent in immediately available funds, then:


	
  
 	
  
 
	
  
 	
           (i) if
 Borrower failed to make such payment, each Lender shall forthwith on demand
 repay to Administrative Agent the portion of such assumed payment that was
 made available to such Lender in immediately available funds, together with
 interest thereon in respect of each day from and including the date such
 amount was made available by Administrative Agent to such Lender to the date
 such amount is repaid to Administrative Agent in immediately available funds
 at the Federal Funds Rate from time to time in effect; and
 
	
  
 	
  
 
	
  
 	
           (ii) if
 any Lender failed to make such payment, such Lender or, if applicable,
 Electing Lender or Lenders shall forthwith on demand pay to Administrative
 Agent the amount thereof in immediately available funds, together with
 interest thereon for the period from the date such amount was made available
 by Administrative Agent to Borrower to the date such amount is recovered by
 Administrative Agent (the “Compensation Period”) at a rate per annum equal to
 the interest rate applicable to such amount under the Loan. If such Lender
 pays such amount to Administrative Agent, then such amount shall constitute
 such Lender’s Pro Rata Share, included in the applicable Loan advance. If
 such Lender does not pay such amount forthwith upon Administrative Agent’s
 demand therefor, Administrative Agent may make a demand therefor upon
 Borrower, and Borrower shall pay such amount to Administrative Agent,
 together with interest thereon for the Compensation Period at a rate per
 annum equal to the rate of
 


7









	
  
 	
  
 
	
  
 	
 interest applicable to such amount under the Loan. Nothing herein
 shall be deemed to relieve any Lender from its obligation to fulfill its
 Commitment or to prejudice any rights which Administrative Agent or Borrower
 may have against any Lender as a result of any default by such Lender
 hereunder.
 
	
  
 	
  
 
	
  
 	
           A notice
 of Administrative Agent to any Lender or to Borrower with respect to any
 amount owing under this subsection shall be conclusive, absent manifest
 error.
 


                    (f)
If any Lender makes available to Administrative Agent funds for the Loan
advance to be made by such Lender as provided in the foregoing provisions of
this Section, and the funds are not advanced to Borrower or otherwise used to
satisfy any Obligations of such Lender hereunder, Administrative Agent shall
return such funds (in like funds as received from such Lender) to such Lender,
without interest. 


                    (g)
Nothing herein shall be deemed to obligate any Lender to obtain the funds for
the Loan advance in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for
the Loan advance in any particular place or manner. 


                    1.14.
Administrative Agent Advances.


                    (a)
Administrative Agent is authorized, from time to time, in Administrative
Agent’s sole discretion to make, authorize or determine advances of the Loan,
or otherwise expend funds, on behalf of Lenders (“Administrative Agent
Advances”), (i) to pay any costs, fees and expenses as described in Section
6.10 herein, (ii) when the applicable conditions precedent set forth in Exhibit
“C” and Exhibit “F” have been satisfied to the extent required by Administrative
Agent, and (iii) when Administrative Agent deems necessary or desirable to
preserve or protect the Loan collateral or any portion thereof (including those
with respect to property taxes, insurance premiums, completion of construction,
operation, management, improvements, maintenance, repair, sale and disposition)
(A) subject to Section 5.5, after the occurrence of a Default, and (B) subject
to Section 5.10, after acquisition of all or a portion of the Loan collateral
by foreclosure or otherwise.


                    (b)
Administrative Agent Advances shall constitute obligatory advances of Lenders
under this Agreement, shall be repayable on demand and secured by the Loan
collateral, and if unpaid by Lenders as set forth below shall bear interest at
the rate applicable to such amount under the Loan or if no longer applicable,
at the Base Rate. Administrative Agent shall notify each Lender in writing of
each Administrative Agent Advance. Upon receipt of notice from Administrative
Agent of its making of an Administrative Agent Advance, each Lender shall make
the amount of such Lender’s Pro Rata Share of the outstanding principal amount
of Administrative Agent Advance available to Administrative Agent, in same day
funds, to such account of Administrative Agent as Administrative Agent may
designate, (i) on or before 3:00 p.m. (Administrative Agent’s Time) on the day
Administrative Agent provides Lenders with notice of the making of such
Administrative Agent Advance if Administrative Agent provides such notice on or
before 12:00 p.m. (Administrative Agent’s Time), or (ii) on or before 12:00
p.m. on the Business Day immediately following the day Administrative Agent
provides Lenders 


8





with notice of the making of such advance if Administrative Agent provides
notice after 12:00 p.m. (Administrative Agent’s Time). 


                    1.15.
Defaulting Lender. 


                    1.15.1.
Notice and Cure of Lender Default; Election Period; Electing Lenders.
Administrative Agent shall notify (such notice being referred to as the
“Default Notice”) Borrower (for Loan advances) and each non-Defaulting Lender
if any Lender is a Defaulting Lender. Each non-Defaulting Lender shall have the
right, but in no event or under any circumstance the obligation, to fund such
Defaulting Lender Amount, provided that within twenty (20) days after the date
of the Default Notice (the “Election Period”), such non-Defaulting Lender or
Lenders (each such Lender, an “Electing Lender”) irrevocably commit(s) by
notice in writing (an “Election Notice”) to Administrative Agent, the other
Lenders and Borrower to fund the Defaulting Lender Amount. If Administrative
Agent receives more than one Election Notice within the Election Period, then
the commitment to fund the Defaulting Lender Amount shall be apportioned pro
rata among the Electing Lenders in the proportion that the amount of each such
Electing Lender’s Commitment bears to the total Commitments of all Electing
Lenders. If the Defaulting Lender fails to pay the Defaulting Lender Payment
Amount within the Election Period, the Electing Lender or Lenders, as
applicable, shall be automatically obligated to fund the Defaulting Lender
Amount (and Defaulting Lender shall no longer be entitled to fund such
Defaulting Lender Amount) within three (3) Business Days following the
expiration of the Election Period to reimburse Administrative Agent or make
payment to Borrower, as applicable. Notwithstanding anything to the contrary
contained herein, if Administrative Agent has funded the Defaulting Lender
Amount, Administrative Agent shall be entitled to reimbursement for its portion
of the Defaulting Lender Payment Amount pursuant to Section 5.11. 


                    1.15.2.
Removal of Rights; Indemnity. Administrative Agent shall not be
obligated to transfer to a Defaulting Lender any payments made by or on behalf
of Borrower to Administrative Agent for the Defaulting Lender’s benefit; nor
shall a Defaulting Lender be entitled to the sharing of any payments hereunder
or under any Note until all Defaulting Lender Payment Amounts are paid in full.
Amounts payable to a Defaulting Lender shall be paid by Administrative Agent to
reimburse Administrative Agent and any Electing Lender pro rata for all
Defaulting Lender Payment Amounts. Solely for the purposes of voting or
consenting to matters with respect to the Loan Documents, a Defaulting Lender
shall be deemed not to be a “Lender” and such Defaulting Lender’s Commitment
shall be deemed to be zero. A Defaulting Lender shall have no right to
participate in any discussions among and/or decisions by Lenders hereunder
and/or under the other Loan Documents. Further, any Defaulting Lender shall be
bound by any amendment to, or waiver of, any provision of, or any action taken
or omitted to be taken by Administrative Agent and/or the non-Defaulting
Lenders under, any Loan Document which is made subsequent to the Defaulting
Lender’s becoming a Defaulting Lender. This Section shall remain effective with
respect to a Defaulting Lender until such time as the Defaulting Lender shall
no longer be in default of any of its obligations under this Agreement by
curing such default by payment of all Defaulting Lender Payment Amounts (i)
within the Election Period, or (ii) after the Election Period with the consent
of the non-Defaulting Lenders. Such Defaulting Lender nonetheless shall be
bound by any amendment to or waiver of any provision of, or any action taken or
omitted to be taken by Administrative Agent and/or the non-Defaulting Lenders
under any Loan Document which is made subsequent to that Lender’s 


9 





becoming a Defaulting Lender and prior to such cure or waiver. The
operation of this subsection or the subsection above alone shall not be
construed to increase or otherwise affect the Commitment of any non-Defaulting
Lender, or relieve or excuse the performance by Borrower of their duties and
obligations hereunder or under any of the other Loan Documents. Furthermore,
nothing contained in this Section shall release or in any way limit a
Defaulting Lender’s obligations as a Lender hereunder and/or under any other of
the Loan Documents. Further, a Defaulting Lender shall indemnify and hold
harmless Administrative Agent and each of the non-Defaulting Lenders from any
claim, loss, or costs incurred by Administrative Agent and/or the
non-Defaulting Lenders as a result of a Defaulting Lender’s failure to comply
with the requirements of this Agreement, including, without limitation, any and
all additional losses, damages, costs and expenses (including, without
limitation, attorneys’ fees) incurred by Administrative Agent and any
non-Defaulting Lender as a result of and/or in connection with (i) a
non-Defaulting Lender’s acting as an Electing Lender, (ii) any enforcement
action brought by Administrative Agent against a Defaulting Lender, and (iii)
any action brought against Administrative Agent and/or Lenders. The
indemnification provided above shall survive any termination of this Agreement.



                    1.15.3.
Commitment Adjustments. In connection with the adjustment of the amounts
of the Loan Commitments of the Defaulting Lender and Electing Lender(s) upon
the expiration of the Election Period as aforesaid, Borrower, Administrative
Agent and Lenders shall execute such modifications to the Loan Documents as
shall, in the reasonable judgment of Administrative Agent, be necessary or
desirable in connection with the adjustment of the amounts of Commitments in
accordance with the foregoing provisions of this Section. For the purpose of
voting or consenting to matters with respect to the Loan Documents such
modifications shall also reflect the removal of voting rights of the Defaulting
Lender and increase in voting rights of Electing Lenders to the extent an
Electing Lender has funded the Defaulting Lender Amount. In connection with
such adjustments, Defaulting Lenders shall execute and deliver an Assignment
and Assumption covering that Lender’s Commitment and otherwise comply with
Section 6.5. If a Lender refuses to execute and deliver such Assignment and
Assumption or otherwise comply with Section 6.5, such Lender hereby appoints
Administrative Agent to do so on such Lender’s behalf. Administrative Agent
shall distribute an amended Schedule of Lenders, which shall thereafter be
incorporated into this Agreement, to reflect such adjustments. However, all
such Defaulting Lender Amounts funded by Administrative Agent or Electing
Lenders shall continue to be Defaulting Lender Amounts of the Defaulting Lender
pursuant to its obligations under this Agreement. 


                    1.15.4.
No Election. In the event that no Lender elects to commit to fund the
Defaulting Lender Amount within the Election Period, Administrative Agent
shall, upon the expiration of the Election Period, so notify Borrower and each
Lender. 


                    1.16.
Several Obligations; No Liability, No Release. Notwithstanding that
certain of the Loan Documents now or hereafter may have been or will be
executed only by or in favor of Administrative Agent in its capacity as such,
and not by or in favor of Lenders, any and all obligations on the part of
Administrative Agent (if any) to make any advances of the Loan or
reimbursements for other Payment Amounts shall constitute the several (and not
joint) obligations of the respective Lenders on a ratable basis, according to
their respective Pro Rata Shares. Except as may be specifically provided in
this Agreement, no Lender shall have any 


10 





liability for the acts of any other Lender. No Lender shall be
responsible to Borrower or any other person for any failure by any other Lender
to fulfill its obligations to make advances of the Loan or reimbursements for
other Payment Amounts, nor to take any other action on its behalf hereunder or
in connection with the financing contemplated herein. The failure of any Lender
to pay to Administrative Agent its Pro Rata Share of a Payment Amount shall not
relieve any other Lender of any obligation hereunder to pay to Administrative
Agent its Pro Rata Share of such Payment Amounts as and when required herein,
but no Lender shall be responsible for the failure of any other Lender to so
fund its Pro Rata Share of the Payment Amount. In furtherance of the foregoing,
Lenders shall comply with their obligation to pay Administrative Agent their
Pro Rata Share of such Payment Amounts regardless of (i) the occurrence of any
Default hereunder or under any Loan Document; (ii) any failure of
consideration, absence of consideration, misrepresentation, fraud, or any other
event, failure, deficiency, breach or irregularity of any nature whatsoever in
the Loan Documents; or (iii) any bankruptcy, insolvency or other like event
with regard to any Borrower or Guarantor. The obligation of Lenders to pay to
such Payment Amounts are in all regards independent of any claims between
Administrative Agent and any Lender. 


ARTICLE 2 

ADDITIONAL COVENANTS AND AGREEMENTS


                    2.1.
Bank Accounts. Borrower shall maintain all security deposits collected
from tenants or others with respect to the Property in one or more accounts
with Administrative Agent in accordance with all applicable legal requirements.
Borrower shall maintain all bank accounts used by Borrower in connection with
the operation of the Property with Administrative Agent. 


                    2.2.
Intentionally Omitted. 


                    2.3.
Contracts. Without Administrative Agent’s prior written approval as to
parties, terms, and all other matters, Borrower shall not (a) enter into any
Material Contract, (b) enter into any management, leasing, maintenance or other
contract pertaining to the Property not described in clause (a) that is not
unconditionally terminable by Borrower or any successor owner without penalty
or payment on not more than thirty (30) days’ notice to the other party
thereunder, or (c) modify, amend, or terminate any such contracts. All such
contracts shall provide that all rights and liens of the applicable contractor,
architect, engineer, supplier, surveyor or other party and any right to remove
removable Improvements are subordinate to Lender’s rights and liens, shall
require all subcontracts and purchase orders to contain a provision
subordinating the subcontractors’ and mechanics’ and materialmen’s liens and
any right to remove removable Improvements to Lender’s rights and liens.
Borrower shall not default under any contract, Borrower shall not permit any
contract to terminate by reason of any failure of Borrower to perform
thereunder, and Borrower shall promptly notify Administrative Agent of any
default thereunder. Borrower will deliver to Administrative Agent, upon request
of Administrative Agent, the names and addresses of all persons or entities
with whom each contractor has contracted or intends to contract for the
construction of the Improvements or for the furnishing of labor or materials
therefor. 


11





                    2.4.
Assignment of Contracts. As additional security for the Obligations,
Borrower hereby transfers and assigns to Administrative Agent for the ratable
benefit of Administrative Agent and Lenders and grants a security interest in
all of Borrower’s right, title and interest, but not its liability, in, under,
and to all construction, architectural and design contracts, and agrees that
all of the same are covered by the security agreement provisions of the
Mortgage. Borrower agrees to deliver to Administrative Agent from time to time
upon Administrative Agent’s request such consents to the foregoing assignment
from parties contracting with Borrower as Administrative Agent may require.
Neither this assignment nor any action by Administrative Agent or Lenders shall
constitute an assumption by Administrative Agent or Lenders of any obligation
under any contract, Borrower hereby agrees to perform all of its obligations
under any contract, and Borrower shall continue to be liable for all obligations
of Borrower with respect thereto. Administrative Agent shall have the right at
any time (but shall have no obligation) to take in its name or in the name of
Borrower such action as Administrative Agent may determine to be necessary to
cure any default under any contract or to protect the rights of Borrower,
Administrative Agent or Lenders with respect thereto. Borrower irrevocably
constitutes and appoints Administrative Agent as Borrower’s attorney-in-fact,
which power of attorney is coupled with an interest and irrevocable, to enforce
in Borrower’s name or in Administrative Agent’s and Lender’s name all rights of
Borrower under any contract. Administrative Agent shall incur no liability if
any action so taken by it or on its behalf shall prove to be inadequate or
invalid. Borrower indemnifies and holds Administrative Agent and Lenders
harmless against and from any loss, cost, liability or expense (including, but
not limited to, consultants’ fees and expenses and attorneys’ fees and
expenses) incurred in connection with Borrower’s failure to perform such
contracts or any such action taken by Administrative Agent or Lenders. Borrower
represents and warrants to Administrative Agent and Lenders that the copy of
any contract furnished or to be furnished to Administrative Agent is and shall
be a true and complete copy thereof, that there have been no modifications
thereof which are not fully set forth in the copies delivered, and that
Borrower’s interest therein is not subject to any claim, setoff, or encumbrance.



                    2.5.
Financial Covenants. 


                    (a)
Loan to Value Ratio. The Property shall have a “Loan to Value Ratio” of not
greater than the Maximum Loan to Value, which Loan to Value Ratio shall be
calculated, and defined, as follows: the sum of (x) the Principal Debt, (y)
prior to the Future Advance Determination Date, the Future Advance Amount and
(z) accrued but unpaid interest on the Loan, all as of the date of the
determination of the ratio shall be divided by the appraised “As-Is” value of
the Property. The appraised “As-Is” value of the Property shall be based upon
the most recent appraisal performed pursuant to Section 2.13, as reviewed,
adjusted and approved by Administrative Agent. The Loan to Value Ratio
requirement shall be tested no more often than once per calendar year, unless
one or more events have occurred which have, alone or in the aggregate, a
Material Adverse Effect. In the event the Loan to Value Ratio covenant is not
met, Administrative Agent shall notify Borrower of such condition and Borrower
may satisfy the Loan to Value Ratio covenant by, within thirty (30) days of
such notice, either (A) making a principal curtailment on the Loan (which shall
not be credited towards future principal amortization required under the Loan
Documents) in an amount sufficient to bring this Loan to Value Ratio into
compliance and/or (B) provide additional collateral acceptable to
Administrative Agent, which shall have value (as determined by Administrative
Agent) which  


12





when added to the Property value is sufficient to satisfy the Loan to
Value Ratio covenant. If Borrower fails to satisfy the Loan to Value Ratio
covenant within such thirty (30) day period, such condition shall constitute an
immediate Default. 


                    (b)
Debt Service Coverage Ratio. Borrower shall at all times have a Debt
Service Coverage Ratio of at least the Minimum DSCR. In the event the Debt
Service Coverage Ratio covenant is not met, Administrative Agent shall notify
Borrower of such condition and Borrower may satisfy the Debt Service Coverage
Ratio covenant by, within thirty (30) days of such notice, either (A) making a
principal curtailment on the Loan (which shall not be credited towards future
principal amortization required under the Loan Documents) in an amount
sufficient to bring this Debt Service Coverage Ratio into compliance and/or (B)
provide additional collateral acceptable to Administrative Agent, which shall
have value (as determined by Administrative Agent) which would, assuming such
collateral were liquidated and applied to reduce the outstanding principal
amount of the Loan, be sufficient to satisfy the Debt Service Coverage Ratio
covenant. If Borrower fails to satisfy the Debt Service Coverage Ratio covenant
within such thirty (30) day period, such condition shall constitute an
immediate Default. 


                    2.6.
Limitation on Debt. Borrower will not incur, create, assume directly or
indirectly, or suffer to exist any Debt or encumber any of its assets nor form
or own any subsidiaries, nor acquire or hold a direct or indirect equity
investments in any other Person without in each such instance the prior written
consent of Administrative Agent, except for: 


	
  
 	
  
 
	
  
 	
           (a) Debt
 incurred pursuant to this Agreement and the other Loan Documents; 
 
	
  
 	
  
 
	
  
 	
           (b) Debt
 of Borrower under a Swap Contract; 
 
	
  
 	
  
 
	
  
 	
           (c) Debt
 constituting a trade payable which is payable in the ordinary course of
 business and is not past due; 
 
	
  
 	
  
 
	
  
 	
           (d)
 obligations to pay brokerage commissions in connection with executed leases
 so long as such commissions are at market rates; and 
 
	
  
 	
  
 
	
  
 	
           (e)
 amounts payable under leases in connection with build-out allowances or
 tenant improvement reimbursements (but only to the extent approved by
 Administrative Agent in its reasonable discretion to the extent
 Administrative Agent’s consent is required hereunder). 
 


                    2.7.
Inspection. Administrative Agent and its agents may enter upon the
Property to inspect the Property at any reasonable time, unless Administrative
Agent deems such inspection is of an emergency nature, in which event Borrower
shall provide Administrative Agent with immediate access to the Property.
Borrower will furnish to Administrative Agent and its agents for inspection and
copying, all books and records, and other documents and information that
Administrative Agent may request from time to time. 


                    2.8.
Notice to Lenders. Borrower shall promptly within ten (10) days after
the occurrence of any of the following events, notify each Lender in writing
thereof, specifying in each case the action Borrower has taken or will take
with respect thereto: (a) any violation of any Law or governmental requirement;
(b) any litigation, arbitration or governmental


13 





investigation or proceeding instituted or threatened against Borrower
or any Guarantor or the Property, and any material development therein; (c) any
actual or threatened condemnation of any portion of the Property, any
negotiations with respect to any such taking, or any loss of or substantial
damage to the Property; (d) any labor controversy pending or threatened against
Borrower or any contractor, and any material development in any labor
controversy; (e) any notice received by Borrower with respect to the
cancellation, alteration or non-renewal of any insurance coverage maintained
with respect to the Property; (f) Borrower receiving notice or otherwise having
knowledge of any lien in excess of $50,000 filed against the Property or any stop
notice served on Borrower in connection with construction of any alterations or
renovations of the Improvements; or (g) any required permit, license,
certificate or approval with respect to the Property lapses or ceases to be in
full force and effect. 


                    2.9.
Financial Statements. Borrower shall deliver to Administrative Agent
with sufficient copies for each Lender the Financial Statements and other
statements and information at the times and for the periods described in (a) Exhibit
“B” and (b) any other Loan Document, and Borrower shall deliver to
Administrative Agent with sufficient copies for each Lender from time to time
such additional financial statements and information as Administrative Agent
may at any time request. Borrower will make all of its books, records and
accounts available to Administrative Agent and its representatives at the
Property upon request and will permit them to review and copy the same.
Borrower shall promptly notify Administrative Agent of any event or condition
that could reasonably be expected to have a Material Adverse Effect in the
financial condition of Borrower. Administrative Agent shall provide a copy of
such Financial Statements to each Lender upon receipt. 


                    2.10.
Other Information. Borrower shall furnish to Administrative Agent from
time to time upon Administrative Agent’s request budgets of Borrower and
revisions thereof showing the estimated costs and expenses to be incurred in
connection with the completion of construction of the Improvements; (v) current
or updated detailed Project schedules or construction schedules; and (vi) such
other information relating to Borrower, Guarantor, the Improvements, the
Property, or any indemnitor or other person or party connected with Borrower,
the Loan or any security for the Loan. 


                    2.11.
Administrative Agent Fee. Borrower shall pay to Administrative Agent,
for Administrative Agent’s own account, an administrative agent fee of $1,667
per month (or partial month, without apportioning, in the event the Initial
Advance is made or the Loan repaid, on a day other than the last day of a
month) payable monthly in arrears commencing on November 1, 2010 and on the
first day of each month hereafter. 


                    2.12.
Unused Fee. Borrower shall pay to Administrative Agent, for the pro rata
account of Lenders, an unused fee (the “Unused Fee”) computed daily on the
Future Advance Amount at a rate per annum equal to 0.40%, calculated on the
basis of a year of 360 days for the actual number of days elapsed. Effective on
the date which is the first to occur of (x) the date on which Lenders advance
the Future Advance to Borrower or (y) the date on which the Commitment to lend
the Future Advance terminates in accordance with Section 1.4, no further Unused
Fee shall accrue. The accrued Unused Fee shall be due and payable in arrears on
the first day of each January, April, July and October of each year, commencing
on January 1, 2011, and upon the Maturity Date. 


14





                    2.13.
Appraisal. Administrative Agent may obtain from time to time, an
appraisal of all or any part of the Property prepared in accordance with
written instructions from Administrative Agent by a third-party appraiser
engaged directly by Administrative Agent. Each such appraiser and appraisal
shall be satisfactory to Administrative Agent (including satisfaction of
applicable regulatory requirements). The cost of any such appraisal shall be
borne by Borrower if such appraisal is the first appraisal in any calendar year
and in all events if Administrative Agent obtains such appraisal after the
occurrence of a Default, and such cost is due and payable by Borrower on demand
and shall be secured by the Loan Documents. Administrative Agent shall provide
a copy of such appraisal to each Lender upon receipt. Provided no Default
exists and Borrower has paid the cost of such appraisal as aforesaid,
Administrative Agent shall provide a copy of such appraisal to Borrower upon
request. 


                    2.14.
Payment of Withholding Taxes. Borrower shall not use, or permit the
property manager of the Property to use, any portion of the proceeds of any
Loan advance to pay the wages of employees unless a portion of the proceeds or
other funds are also used to make timely payment to or deposit with (a) the
United States of all amounts of tax required to be deducted and withheld with
respect to such wages under the Code, and (b) any state and/or local Tribunal
or agency having jurisdiction of all amounts of tax required to be deducted and
withheld with respect to such wages under any applicable state and/or local
Laws. 


                    2.15.
ERISA and Prohibited Transaction Taxes. As of the date hereof and
throughout the term of this Loan Agreement, (a) Borrower is not and will not be
(i) an “employee benefit plan”, as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”); or (ii) a “plan”
within the meaning of Section 4975(e) of the Internal Revenue Code of 1986, as
amended from time to time (the “Code”); (b) the assets of Borrower do not and
will not constitute “plan assets” within the meaning of the United States
Department of Labor Regulations set forth in 29 C.F.R. §2510.3-101; (c)
Borrower is not and will not be a “governmental plan” within the meaning of
Section 3(32) of ERISA; (d) transactions by or with Borrower are not and will
not be subject to state statutes applicable to Borrower regulating investments
of fiduciaries with respect to governmental plans; and (e) Borrower shall not
engage in any transaction which would cause any obligation, or action taken or
to be taken, hereunder (or the exercise by Administrative Agent of any of
Lender’s rights under this Agreement, any Note or the other Loan Documents) to
be a non-exempt (under a statutory or administrative class exemption)
prohibited transaction under ERISA or Section 4975 of the Code. Borrower
further agrees to deliver to Administrative Agent such certifications or other
evidence of compliance with the provisions of this Section 2.15 as
Administrative Agent may from time to time request. 


ARTICLE 3

REPRESENTATIONS AND WARRANTIES 


                    To
induce Lenders to make the Loan, Borrower hereby represents and warrants to
Administrative Agent and Lenders that except as otherwise disclosed to
Administrative Agent in writing (a) Borrower has complied with any and all Laws
and regulations concerning its organization, existence and the transaction of
its business, and has the right and power to own the Property and to develop
the Improvements as contemplated in this Agreement and the other Loan 


15





Documents; (b) Borrower is authorized to execute, deliver and perform
all of its obligations under the Loan Documents; (c) the Loan Documents are
valid and binding obligations of Borrower; (d) Borrower is not in violation of
any Law, regulation or ordinance, or any order of any court or Tribunal, and no
provision of the Loan Documents violates any applicable Law, any covenants or
restrictions affecting the Property, any order of any court or Tribunal or any
contract or agreement binding on Borrower or the Property; (e) to the extent
required by applicable Law, Borrower and Guarantor have filed all necessary tax
returns and reports and have paid all taxes and governmental charges thereby
shown to be owing; (f) the Land is not part of a larger tract of land owned by
Borrower or any of its affiliates or any Guarantor, is not otherwise included
under any unity of title or similar covenant with other lands not encumbered by
the Mortgage, and constitutes a separate tax lot or lots with a separate tax
assessment or assessments for the Land and Improvements, independent of those
for any other lands or improvements; (g) the Land and Improvements comply with
all Laws and governmental requirements, including all subdivision and platting
requirements, without reliance on any adjoining or neighboring property; (h)
the Improvements comply with all legal requirements regarding access and
facilities for handicapped or disabled persons; (i) Borrower has not directly
or indirectly conveyed, assigned or otherwise disposed of or transferred (or
agreed to do so) any development rights, air rights or other similar rights,
privileges or attributes with respect to the Property, including those arising
under any zoning or land use ordinance or other Law or governmental
requirement; (j) the Financial Statements delivered to Administrative Agent are
true, correct, and complete in all material respects, and there has been no
event or condition that could reasonably be expected to have a Material Adverse
Effect in Borrower’s or Guarantor’s financial condition from the financial
condition of Borrower or Guarantor (as the case may be) indicated in such
Financial Statements; (k) all utility services necessary for operation of the
Improvements for their intended purpose are available at the boundaries of the
Land, including electric and natural gas facilities, telephone service, water
supply, storm and sanitary sewer facilities; (l) except as otherwise provided
for in the Loan Documents, Borrower has made no contract or arrangement of any
kind the performance of which by the other party thereto would give rise to a
lien on the Property; and (m) the current and anticipated use of the Property
complies with all applicable zoning ordinances, regulations and restrictive
covenants affecting the Land without the existence of any variance,
non-complying use, nonconforming use or other special exception, all use
restrictions of any Tribunal having jurisdiction have been satisfied, and no
violation of any Law or regulation exists with respect thereto. 


ARTICLE 4 

DEFAULT AND REMEDIES


                    4.1.
Events of Default. The occurrence of any one of the following shall be a
default under this Agreement (“Default”): (a) any of the Indebtedness is not
paid when due, whether on the scheduled due date or upon acceleration, maturity
or otherwise and such default shall have continued for a period of ten (10)
days; (b) any covenant, agreement, condition, representation or warranty in
this Agreement (other than covenants to pay the Indebtedness and other than
Defaults expressly listed in this Section) is not fully and timely performed,
observed or kept and except with respect to provisions which are specified to
be immediate Defaults such default shall have continued for a period of thirty
(30) days after notice thereof shall have been


16 





given to Borrower by Administrative Agent (or such other grace period
as may be specified elsewhere in this Agreement with respect to specific provisions),
provided, however, if such default is not susceptible of being cured within
such thirty (30) day period and Borrower has commenced such cure within such
thirty (30) day period and is diligently pursuing such cure to Administrative
Agent’s satisfaction, such thirty (30) day cure period shall be extended, but
in no event shall such cure period exceed sixty (60) days, or, in the case of
such other documents, such shorter grace period, if any, as may be provided for
therein; (c) the occurrence of a Default under any other Loan Document (taking
into account any applicable notice and cure period set forth in such Loan
Document); (d) any required permit, license, certificate or approval with
respect to the Property lapses or ceases to be in full force and effect and
Borrower fails to have such required permit, license, certificate or approval
renewed or reinstated within thirty (30) days; (e) Borrower, Administrative
Agent or any Lender is enjoined or prohibited from performing any of its
respective obligations under any of the Loan Documents; (f) the owner of the
Property enters into any lease of part or all of the Property which does not
comply with the Loan Documents; (g) a lien for the performance of work or the
supply of materials which is established against the Property remains
unsatisfied or unbonded for a period of twenty (20) days after Borrower’s
receipt of notice or otherwise obtaining knowledge of the date of filing or
service; (h) the entry of a judgment against Borrower or any Guarantor for an
amount in excess of $500,000 and Borrower shall not discharge the same or cause
it to be discharged within sixty (60) days from the entry thereof, or shall not
appeal therefrom or from the order, decree or process upon which or pursuant to
which said judgment was granted, based or entered, and secure a stay of
execution or bond over such judgment by a commercially acceptable bonding
company pending such appeal; (i) the issuance of any attachment, sequestration,
or similar writ levied upon any of Borrower’s or Guarantor’s property which is
not discharged within a period of ten (10) days; (j) Administrative Agent
determines that an event or condition that could reasonably be expected to have
a Material Adverse Effect has occurred in the financial condition of Borrower
or any Guarantor or in the condition of the Property; (k) the death,
incompetency, dissolution or insolvency of Borrower or any Guarantor; (l) a
Default as specified in Section 6.26; and (m) a default occurs under any other
Loan Document which is not cured within any applicable notice and cure period
provided therein. 


                    4.2.
Remedies. Upon a Default, Administrative Agent may with the consent of,
and shall at the direction of the Required Lenders, without notice, exercise
any and all rights and remedies afforded by this Agreement, the other Loan
Documents, Law, equity or otherwise, including (a) declaring any and all
Indebtedness immediately due and payable; (b) reducing any claim to judgment;
or (c) obtaining appointment of a receiver (to which Borrower hereby consents)
and/or judicial or nonjudicial foreclosure under the Mortgage; provided,
however, that upon a Default, Administrative Agent at its election may (but
shall not be obligated to) without the consent of and shall at the direction of
the Required Lenders, without notice, do any one or more of the following:
set-off and apply, to the extent thereof and to the maximum extent permitted by
Law, any and all deposits, funds, or assets at any time held and any and all
other indebtedness at any time owing by Administrative Agent or any Lender to
or for the credit or account of Borrower against any Indebtedness. 


                    Borrower
hereby appoints Administrative Agent as Borrower’s attorney-in-fact, which
power of attorney is irrevocable and coupled with an interest, with full power
of substitution if Administrative Agent so elects, to do any of the following
in Borrower’s name 


17





upon the occurrence of a Default: (i) endorse the name of Borrower on
any checks or drafts representing proceeds of any insurance policies, or other
checks or instruments payable to Borrower with respect to the Property; (ii)
prosecute or defend any action or proceeding incident to the Property, (iii)
pay, settle, or compromise all bills and claims so as to clear title to the
Property; and (iv) take over and use all or any part of the labor, materials,
supplies and equipment contracted for, owned by, or under the control of
Borrower, whether or not previously incorporated into the Improvements. Any
amounts expended by Administrative Agent itself or on behalf of Lenders in
connection with the exercise of its remedies herein shall be deemed to have
been advanced to Borrower hereunder as a demand obligation owing by Borrower to
Administrative Agent or Lenders as applicable and shall constitute a portion of
the Indebtedness, regardless of whether such amounts exceed any limits for
Indebtedness otherwise set forth herein. Neither Administrative Agent nor
Lenders shall have any liability to Borrower for the sufficiency or adequacy of
any such actions taken by Administrative Agent. 


                    No
delay or omission of Administrative Agent or Lenders to exercise any right,
power or remedy accruing upon the happening of a Default shall impair any such
right, power or remedy or shall be construed to be a waiver of any such Default
or any acquiescence therein. No delay or omission on the part of Administrative
Agent or Lenders to exercise any option for acceleration of the maturity of the
Indebtedness, or for foreclosure of the Mortgage following any Default as
aforesaid, or any other option granted to Administrative Agent and Lenders
hereunder in any one or more instances, or the acceptances by Administrative
Agent or Lenders of any partial payment on account of the Indebtedness, shall
constitute a waiver of any such Default, and each such option shall remain
continuously in full force and effect. No remedy herein conferred upon or
reserved to Administrative Agent and/or Lenders is intended to be exclusive of
any other remedies provided for in any Note or any of the other Loan Documents,
and each and every such remedy shall be cumulative, and shall be in addition to
every other remedy given hereunder, or under any Note or any of the other Loan
Documents, or now or hereafter existing at Law or in equity or by statute.
Every right, power and remedy given to Administrative Agent and Lenders by this
Agreement, any Note or any of the other Loan Documents shall be concurrent, and
may be pursued separately, successively or together against Borrower, or the
Property or any part thereof, or any personal property granted as security
under the Loan Documents, and every right, power and remedy given by this
Agreement, any Note or any of the other Loan Documents may be exercised from
time to time as often as may be deemed expedient by the Required Lenders. 


                    Regardless
of how a Lender may treat payments received from the exercise of remedies under
the Loan Documents for the purpose of its own accounting, for the purpose of
computing the Indebtedness, payments shall be applied as elected by Lenders. No
application of payments will cure any event of Default, or prevent
acceleration, or continued acceleration, of amounts payable under the Loan
Documents, or prevent the exercise, or continued exercise, of rights or
remedies of Administrative Agent and Lenders hereunder or thereunder or at Law
or in equity. 


18





ARTICLE 5 

ADMINISTRATIVE AGENT


                    5.1.
Appointment and Authorization of Administrative Agent.


                    (a)
Each Lender hereby irrevocably (subject to Section 5.9) appoints, designates
and authorizes Administrative Agent to take such action on its behalf under the
provisions of this Agreement and each other Loan Document and to exercise such
powers and perform such duties as are expressly delegated to it by the terms of
this Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding
any provision to the contrary contained elsewhere herein or in any other Loan
Document, Administrative Agent shall not have any duties or responsibilities,
except those expressly set forth herein, nor shall Administrative Agent have or
be deemed to have any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or any other Loan Document or otherwise exist
against Administrative Agent. Without
limiting the generality of the foregoing sentence, the use of the term “agent”
herein and in the other Loan Documents with reference to Administrative Agent
is not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable Law. Instead, such term is used merely as a matter
of market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties. 


                    (b)
No individual Lender or group of Lenders shall have any right to amend or
waive, or consent to the departure of any party from any provision of any Loan
Document, or secure or enforce the obligations of Borrower or any other party
pursuant to the Loan Documents, or otherwise.
All such rights, on behalf of Administrative Agent or any Lender or
Lenders, shall be held and exercised solely by and at the option of
Administrative Agent for the pro rata benefit of Lenders. Such rights, however,
are subject to the rights of a Lender or Lenders, as expressly set forth in
this Agreement, to approve matters or direct Administrative Agent to take or
refrain from taking action as set forth in this Agreement. Except as expressly
otherwise provided in this Agreement or the other Loan Documents,
Administrative Agent shall have and may use its sole discretion with respect to
exercising or refraining from exercising any discretionary rights, or taking or
refraining from taking any actions which Administrative Agent is expressly
entitled to exercise or take under this Agreement and the other Loan Documents,
including, without limitation, (i) the determination if and to what extent
matters or items subject to Administrative Agent’s satisfaction are acceptable
or otherwise within its discretion, (ii) the making of Administrative Agent
Advances, and (iii) the exercise of remedies pursuant to, but subject to,
Article 4 or pursuant to any other Loan Document and any action so taken or not
taken shall be deemed consented to by Lenders. 


                    (c)
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to Borrower or Guarantor, no individual Lender or
group of Lenders shall have the right, and Administrative Agent (irrespective
of whether the principal of the Loan shall then be due and payable as herein
expressed or by declaration or otherwise and irrespective of whether
Administrative Agent shall have made any demand on Borrower) shall be
exclusively entitled and empowered on behalf of itself and Lenders, by
intervention in such proceeding or otherwise: 


19









	
  
 	
  
 
	
  
 	
           (i) to
file and prove a claim for the whole amount of the principal and interest
owing and unpaid in respect of the Loan and all other Obligations that are
owing and unpaid and to file such other documents as may be necessary or
advisable in order to have the claims of Lenders and Administrative Agent
(including any claim for the reasonable compensation, expenses, disbursements
and advances of Lenders and Administrative Agent and their respective agents
and counsel and all other amounts due Lenders and Administrative Agent under
Section 6.10 and Exhibit “K” allowed in such judicial proceeding; and 
 
	
  
 	
  
 
	
  
 	
           (ii) to
 collect and receive any monies or other property payable or deliverable on
 any such claims and to distribute the same;
 


and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is
hereby authorized by each Lender to make such payments to Administrative Agent
and, in the event that Administrative Agent shall consent to the making of such
payments directly to Lenders, to pay to Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of
Administrative Agent and its agents and counsel, and any other amounts due
Administrative Agent under Section 6.10. 


                    Nothing
contained herein shall be deemed to authorize Administrative Agent to authorize
or consent to or accept or adopt on behalf of any Lender any plan of
reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of Lenders except as approved by Required Lenders or
to authorize Administrative Agent to vote in respect of the claims of Lenders
except as approved by Required Lenders in any such proceeding. 


                    5.2.
Delegation of Duties. Administrative Agent may execute any of its duties
under this Agreement or any other Loan Document by or through agents, employees
or attorneys-in-fact and shall be entitled to advice of counsel and other
consultant experts concerning all matters pertaining to such duties. Administrative Agent shall not be
responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects with reasonable care. 


                    5.3.
Liability of Administrative Agent. No Agent-Related Persons shall (i) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful
misconduct), or (ii) be responsible in any manner to any of Lenders for any
recital, statement, representation or warranty made by Borrower or any
subsidiary or Affiliate of Borrower, or any officer thereof, contained herein
or in any other Loan Document, or in any certificate, report, statement or
other document referred to or provided for in, or received by Administrative
Agent under or in connection with, this Agreement or any other Loan Document,
or the validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Loan Document, or for any failure of Borrower or
any other party to any Loan Document to perform its obligations hereunder or
thereunder. No Agent-Related Person
shall be under any obligation to any Lender to ascertain or to inquire as to
the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of Borrower, Guarantor or any of their Affiliates.



20





                    5.4.
Reliance by Administrative Agent. Administrative Agent shall be entitled
to rely, and shall be fully protected in relying, upon any writing, resolution,
notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or
telephone message, statement or other document or conversation believed by it
to be genuine and correct and to have been signed, sent or made by the proper
person or persons, and upon advice and statements of legal counsel (including
counsel to any party to the Loan Documents), independent accountants and other
experts selected by Administrative Agent. Administrative Agent shall be fully
justified in failing or refusing to take any action under this Agreement or any
other Loan Document unless it shall first receive such advice or concurrence of
the Required Lenders or all Lenders if required hereunder as it deems appropriate
and, if it so requests, it shall first be indemnified to its satisfaction by
Lenders against any and all liability and expense which may be incurred by it
by reason of taking or continuing to take any such action. Administrative Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement
or any other Loan Document in accordance with a request or consent of the
Required Lenders or such greater number of Lenders as may be expressly required
hereby in any instance, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all Lenders. In the absence of written instructions from the Required Lenders
or such greater number of Lenders, as expressly required hereunder, Administrative
Agent may take or not take any action, at its discretion, unless this Agreement
specifically requires the consent of the Required Lenders or such greater
number of Lenders. 


                    5.5.
Notice of Default. Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default, unless Administrative
Agent shall have received written notice from a Lender or Borrower referring to
this Agreement, describing such Default that Administrative Agent determines
will have a Material Adverse Effect.
Administrative Agent will notify Lenders of its receipt of any such
notice. Administrative Agent shall take
such action with respect to such Default as may be requested by the Required
Lenders in accordance with Article 4; provided, however, that unless and until
Administrative Agent has received any such request, Administrative Agent may
(but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default as it shall deem advisable or in the best
interest of Lenders. 


                    5.6.
Credit Decision; Disclosure of Information by Administrative Agent.


                    (a)
Each Lender acknowledges that none of Agent-Related Persons has made any
representation or warranty to it, and that no act by Administrative Agent
hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of Borrower and Guarantor, shall be deemed to constitute
any representation or warranty by any Agent-Related Person to any Lenders as to
any matter, including whether Agent-Related Persons have disclosed material
information in their possession. Each
Lender represents to Administrative Agent that it has, independently and
without reliance upon any Agent-Related Person and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial and
other condition and creditworthiness of Borrower and Guarantor, and all
applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and
to extend credit to Borrower and Guarantor hereunder. Each Lender also represents that it will, independently and
without reliance upon any Agent-Related Person and 


21







based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents,
and to make such investigations as it deems necessary to inform itself as to
the business, prospects, operations, property, financial and other condition
and creditworthiness of Borrower and Guarantor. 


                   (b)
Administrative Agent upon its receipt shall provide each Lender such notices,
reports and other documents expressly required to be furnished to Lenders by
Administrative Agent herein. To the
extent not already available to a Lender, Administrative Agent shall also
provide Lender and/or make available for Lender’s inspection during reasonable
business hours and at Lender’s expense, upon Lender’s written request therefor:
(i) copies of the Loan Documents; (ii) such information as is then in
Administrative Agent’s possession in respect of the current status of principal
and interest payments and accruals in respect of the Loan; (iii) copies of all
current financial statements in respect of Borrower, any Guarantor or other
person liable for payment or performance by Borrower of any obligations under
the Loan Documents, then in Administrative Agent’s possession with respect to
the Loan; and (iv) other current factual information then in Administrative
Agent’s possession with respect to the Loan and bearing on the continuing
creditworthiness of Borrower or any Guarantor, or any of their respective
Affiliates; provided that nothing contained in this Section shall impose any
liability upon Administrative Agent for its failure to provide a Lender any of
such Loan Documents, information, or financial statements, unless such failure
constitutes willful misconduct or gross negligence on Administrative Agent’s
part; and provided further that Administrative Agent shall not be obligated to
provide any Lender with any information in violation of Law or any contractual
restrictions on the disclosure thereof (provided such contractual restrictions
shall not apply to distributing to a Lender factual and financial information
expressly required to be provided herein).
Except as set forth above, Administrative Agent shall not have any duty
or responsibility to provide any Lenders with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of Borrower or Guarantor or any of their
respective Affiliates which may come into the possession of any of
Agent-Related Persons. 


                    5.7.
Indemnification of Administrative Agent. Whether or not the transactions
contemplated hereby are consummated, Lenders shall indemnify upon demand each
Agent-Related Person (to the extent not reimbursed by or on behalf of Borrower
and without limiting the obligation of Borrower to do so), pro rata, and hold
harmless each Agent-Related Person from and against any and all Indemnified
Liabilities incurred by it; provided, however, that no Lender shall be liable
for the payment to any Agent-Related Person of any portion of such Indemnified
Liabilities to the extent determined in a final, non-appealable judgment by a
court of competent jurisdiction to have resulted from such Agent-Related
Person’s own gross negligence or willful misconduct; provided, however, that no
action taken in accordance with the directions of the Required Lenders shall be
deemed to constitute gross negligence or willful misconduct for purposes of
this Section. Without limitation of the
foregoing, to the extent that Administrative Agent is not reimbursed by or on
behalf of Borrower, each Lender shall reimburse Administrative Agent upon
demand for its ratable share of any costs or out-of-pocket expenses (including
attorney fees) incurred by Administrative Agent as described in Section
6.10. The undertaking in this Section
shall survive the payment of all Indebtedness hereunder and the resignation or
replacement of Administrative Agent. 


22





                    5.8.
Administrative Agent in Individual Capacity. Administrative Agent, in
its individual capacity, and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity interests in
and generally engage in any kind of banking, trust, financial advisory,
underwriting or other business with any party to the Loan Documents and their
respective Affiliates as though Administrative Agent were not Administrative
Agent hereunder and without notice to or consent of Lenders. Lenders acknowledge that Borrower and Bank
of America, N.A. or its Affiliate have entered or may enter into Swap
Transactions. A portion of the Loan may
be funded to honor Borrower’s payment obligations under the terms of such Swap
Transactions, and Lenders shall have no right to share in any portion of such
payments. Lenders acknowledge that,
pursuant to such activities, Bank of America, N.A. or its Affiliates may receive
information regarding any party to the Loan Documents, or their respective
Affiliates (including information that may be subject to confidentiality
obligations in favor of such parties or such parties’ Affiliates) and
acknowledge that Administrative Agent shall be under no obligation to provide
such information to them. With respect
to its Pro Rata Share of the Loan, Bank of America, N.A. shall have the same
rights and powers under this Agreement as any other Lenders and may exercise
such rights and powers as though it were not Administrative Agent or party to
Swap Transactions, and the terms “Lender” and “Lenders” include Bank of
America, N.A. in its individual capacity. 


                    5.9.
Successor Administrative Agent. Administrative Agent may, and at the
request of the Required Lenders as a result of Administrative Agent’s gross
negligence or willful misconduct in performing its duties under this Agreement
shall, resign as Administrative Agent upon thirty (30) days’ notice to Lenders. If Administrative Agent resigns under this
Agreement, the Required Lenders shall appoint from among Lenders a successor
administrative agent for Lenders, which successor administrative agent shall be
consented to by Borrower at all times other than during the existence of a
Default (which consent of Borrower shall not be unreasonably withheld or
delayed). If no successor
administrative agent is appointed prior to the effective date of the
resignation of Administrative Agent, Administrative Agent may appoint, after
consulting with Lenders and Borrower, a successor administrative agent from
among Lenders. Upon the acceptance of
its appointment as successor administrative agent hereunder, such successor
administrative agent shall succeed to all the rights, powers and duties of the
retiring Administrative Agent and the term “Administrative Agent” shall mean
such successor administrative agent, and the retiring Administrative Agent’s
appointment, powers and duties as Administrative Agent shall be terminated. After any retiring Administrative Agent’s
resignation hereunder as Administrative Agent, the provisions of this Article
and other applicable Sections of this Agreement shall inure to its benefit as
to any actions taken or omitted to be taken by it while it was Administrative
Agent under this Agreement. If no
successor administrative agent has accepted appointment as Administrative Agent
by the date which is thirty (30) days following a retiring Administrative
Agent’s notice of resignation, the retiring Administrative Agent’s resignation
shall nevertheless thereupon become effective and Lenders shall perform all of
the duties of Administrative Agent hereunder until such time, if any, as the
Required Lenders appoint a successor agent as provided for above. 


                    5.10.
Releases; Acquisition and Transfers of Collateral. 


                    (a)
Lenders hereby irrevocably authorize Administrative Agent to transfer or
release any lien on, or after foreclosure or other acquisition of title by
Administrative Agent on 


23





behalf of Lenders to transfer or sell, any Loan collateral (i) upon the
termination of the Commitments and payment and satisfaction in full of all
Indebtedness, (ii) constituting a release, transfer or sale of a lien or Loan
collateral if Borrower will certify to Administrative Agent that the release,
transfer or sale is permitted under this Agreement or the other Loan Documents
(and Administrative Agent may rely conclusively on any such certificate,
without further inquiry); or (iv) after foreclosure or other acquisition of
title (1) for a purchase price of at least 90% of the value indicated in the
most recent appraisal of the collateral obtained by Administrative Agent made
in accordance with regulations governing Administrative Agent, less any
reduction indicated in the appraisal estimated by experts in such areas; or (2)
if approved by the Required Lenders. 


                    (b)
If all or any portion of the Loan collateral is acquired by foreclosure or by
deed in lieu of foreclosure, Administrative Agent shall take title to the
collateral in its name or by an Affiliate of Administrative Agent, but for the
benefit of all Lenders in their Pro Rata Shares on the date of the foreclosure
sale or recordation of the deed in lieu of foreclosure (the “Acquisition
Date”). Administrative Agent and all
Lenders hereby expressly waive and relinquish any right of partition with
respect to any collateral so acquired.
After any collateral is acquired, Administrative Agent shall appoint and
retain one or more persons (individually and collectively, “Property Manager”)
experienced in the management, leasing, sale and/or dispositions of similar
properties. 


                    After
consulting with the Property Manager, Administrative Agent shall prepare a
written plan for completion of construction (if required), operation,
management, improvement, maintenance, repair, sale and disposition of the Loan
collateral and a budget for the aforesaid, which may include a reasonable
management fee payable to Administrative Agent (the “Business Plan”). Administrative Agent will deliver the
Business Plan not later than the sixtieth (60th) day after the Acquisition Date
to each Lender with a written request for approval of the Business Plan. If the
Business Plan is approved by the Required Lenders, Administrative Agent and the
Property Manager shall adhere to the Business Plan until a different Business
Plan is approved by the Required Lenders.
Administrative Agent may propose an amendment to the Business Plan as it
deems appropriate, which shall also be subject to Required Lender
approval. If the Business Plan (as may
be amended) proposed by Administrative Agent is not approved by the Required
Lenders, (or if sixty (60) days have elapsed following the Acquisition Date
without a Business Plan being proposed by Administrative Agent), any Lender may
propose an alternative Business Plan, which Administrative Agent shall submit
to all Lenders for their approval. If an alternative Business Plan is approved
by the Required Lenders, Administrative Agent may appoint one of the approving
Lenders to implement the alternative Business Plan. Notwithstanding any other provision of this Agreement, unless in
violation of an approved Business Plan or otherwise in an emergency situation,
Administrative Agent shall, subject to subsection (a) of this Section, have the
right but not the obligation to take any action in connection with the Loan
collateral (including those with respect to property taxes, insurance premiums,
completion of construction, operation, management, improvement, maintenance,
repair, sale and disposition), or any portion thereof. 


                    (c)
Upon request by Administrative Agent or Borrower at any time, Lenders will
confirm in writing Administrative Agent’s authority to sell, transfer or
release any such liens of particular types or items of Loan collateral pursuant
to this Section; provided, however, that 


24





(i) Administrative Agent shall not be required to execute any document
necessary to evidence such release, transfer or sale on terms that, in
Administrative Agent’s opinion, would expose Administrative Agent to liability
or create any obligation or entail any consequence other than the transfer,
release or sale without recourse, representation or warranty, and (ii) such
transfer, release or sale shall not in any manner discharge, affect or impair
the obligations of Borrower other than those expressly being released. 


                    (d)
If only two (2) Lenders exist at the time Administrative Agent receives a
purchase offer for Loan collateral for which one of Lenders does not consent
within ten (10) Business Days after notification from Administrative Agent, the
consenting Lender may offer (“Purchase Offer”) to purchase all of
non-consenting Lender’s right, title and interest in the collateral for a
purchase price equal to non-consenting Lender’s Pro Rata Share of the net
proceeds anticipated from such sale of such collateral (as reasonably
determined by Administrative Agent, including the undiscounted face principal
amount of any purchase money obligation not payable at closing) (“Net
Proceeds”). Within ten (10) Business
Days thereafter the non-consenting Lender shall be deemed to have accepted such
Purchase Offer unless the non-consenting Lender notifies Administrative Agent
that it elects to purchase all of the consenting Lender’s right, title and
interest in the collateral for a purchase price payable by the non-consenting
Lender in an amount equal to the consenting Lender’s Pro Rata Share of the Net
Proceeds. Any amount payable hereunder
by a Lender shall be due on the earlier to occur of the closing of the sale of
the collateral or ninety (90) days after the Purchase Offer, regardless of
whether the collateral has been sold. 


                    5.11.
Application of Payments. Except as otherwise provided below with respect
to Defaulting Lenders, aggregate principal and interest payments, payments for
Indemnified Liabilities and/or foreclosure or sale of the collateral, and net
operating income from the collateral during any period it is owned by
Administrative Agent on behalf of Lenders (“Payments”) shall be apportioned pro
rata among Lenders and payments of any fees (other than fees designated for
Administrative Agent’s separate account) shall, as applicable, be apportioned
pro rata among Lenders. Notwithstanding
anything to the contrary in this Agreement, all Payments due and payable to
Defaulting Lenders shall be due and payable to and be apportioned pro rata
among Administrative Agent and Electing Lenders. Such apportionment shall be in the proportion that the Defaulting
Lender Payment Amounts paid by them bears to the total Defaulting Lender
Payment Amounts of such Defaulting Lender.
Such apportionment shall be made until Administrative Agent and Lenders
have been paid in full for the Defaulting Lender Payment Amounts. All pro rata Payments shall be remitted to
Administrative Agent and all such payments not constituting payment of specific
fees, and all proceeds of the Loan collateral received by Administrative Agent,
shall be applied first, to pay any fees, indemnities, costs, expenses
(including those in Section 5.7) and reimbursements then due to Administrative
Agent from Borrower; second, to pay any fees, costs, expenses and reimbursements
then due to Lenders from Borrower; third, to pay pro rata interest and late
charges due in respect of the Indebtedness and Administrative Agent Advances;
fourth, to pay or prepay pro rata principal of the Indebtedness and
Administrative Agent Advances; fifth, to pay any indebtedness of Borrower under
Swap Transactions; and last, to Borrower, if required by law, or Lenders in Pro
Rata Share percentages equal to their percentages at the termination of the
Aggregate Commitments. 


25





                    5.12.
Benefit. The terms and conditions of this Article are inserted for the
sole benefit of Administrative Agent and Lenders; the same may be waived in
whole or in part, with or without terms or conditions, without prejudicing
Administrative Agent’s or Lenders’ rights to later assert them in whole or in
part. 


ARTICLE 6

GENERAL TERMS AND CONDITIONS


                    6.1.
Consents; Borrower’s Indemnity. Except where otherwise expressly
provided in the Loan Documents, in any instance where the approval, consent or
the exercise of Administrative Agent’s or Lenders’ judgment is required, the
granting or denial of such approval or consent and the exercise of such
judgment shall be (a) within the sole discretion of Administrative Agent or
Lenders; (b) deemed to have been given only by a specific writing intended for
the purpose given and executed by Administrative Agent or Lenders; and (c) free
from any limitation or requirement of reasonableness. Notwithstanding any approvals or consents by Administrative Agent
or Lenders, neither Administrative Agent nor any Lender has any obligation or
responsibility whatsoever for the adequacy, form or content of any appraisal,
any contract, any lease, or any other matter incident to the Property. Any inspection, appraisal or audit of the
Property or the books and records of Borrower, or the procuring of documents
and financial and other information, by or on behalf of Administrative Agent
shall be for Administrative Agent’s and Lenders’ protection only, and shall not
constitute an assumption of responsibility to Borrower or anyone else with
regard to the condition, value, construction, maintenance or operation of the
Property, or relieve Borrower of any of Borrower’s obligations. Borrower has selected all surveyors,
architects, engineers, contractors, materialmen and all other persons or
entities furnishing services or materials to the Project. Neither Administrative Agent nor any Lender
has any duty to supervise or to inspect the Property or the construction of the
Improvements nor any duty of care to Borrower or any other person to protect
against, or inform Borrower or any other person of the existence of, negligent,
faulty, inadequate or defective design or construction of the Improvements. Neither Administrative Agent nor any Lender
shall be liable or responsible for, and Borrower shall indemnify each
Agent-Related Person and each Lender and their respective Affiliates,
directors, officers, agents, attorneys and employees (collectively, the
“Indemnitees”) from and against: (a) any claim, action, loss or cost (including
attorney’s fees and costs) arising from or relating to (i) any defect in the
Property or the Improvements, (ii) the performance or default of Borrower,
Borrower’s surveyors, architects, engineers, contractors or any other person,
(iii) any failure to construct, complete, protect or insure the Improvements,
(iv) the payment of costs of labor, materials, or services supplied for the
construction, alteration or renovation of the Improvements, including, without
limitation, tenant improvements, (v) in connection with the protection and
preservation of the Loan collateral (including those with respect to property
taxes, insurance premiums, completion of construction, operation, management,
improvements, maintenance, repair, sale and disposition), or (vi) the
performance of any obligation of Borrower whatsoever; (b) any and all
liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses and disbursements (including attorney fees
and costs) of any kind or nature whatsoever which may at any time be imposed
on, incurred by or asserted against any such Indemnitee in any way relating to or
arising out of or in connection with (i) the execution, delivery, 


26





enforcement, performance or administration of any Loan Document or any
other agreement, letter or instrument delivered in connection with the
transactions contemplated thereby or the consummation of the transactions
contemplated thereby, (ii) any Commitment or Loan, or (iii) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory (including
any investigation of, preparation for, or defense of any pending or threatened
claim, investigation, litigation or proceeding) and regardless of whether any
Indemnitee is a party thereto; (c) any and all claims, demands, actions or
causes of action arising out of or relating to the use of Information (as
defined in Section 6.6) or other materials obtained through internet,
Intralinks or other similar information transmission systems in connection with
this Agreement; and (d) any and all liabilities, losses, costs or expenses
(including attorney fees and costs) that any Indemnitee suffers or incurs as a
result of the assertion of any foregoing claim, demand, action, cause of action or
proceeding, or as a result of the preparation of any defense in connection with
any foregoing claim, demand, action, cause of action or proceeding, in all cases,
whether or not an Indemnitee is a party to such claim, demand, action, cause of
action or proceeding and whether it is defeated, successful or withdrawn, (all the
foregoing, collectively, the “Indemnified Liabilities”); provided, however,
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such liabilities, obligations, losses, damages, penalties, claims,
demands, actions, judgments, suits, costs, expenses or disbursements are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee. Nothing, including any
advance or acceptance of any document or instrument, shall be construed as a representation
or warranty, express or implied, to any party by Administrative Agent or
Lenders. Inspection, whether or not
followed by notice of Default, shall not constitute a waiver of any Default
then existing, or a waiver of Administrative Agent’s and Lenders’ right
thereafter to insist that the Improvements be in compliance with the Loan
Documents, and all applicable Laws, governmental requirements and restrictive
covenants. Administrative Agent’s
failure to inspect shall not constitute a waiver of any of Administrative
Agent’s or Lenders’ rights under the Loan Documents or at Law or in equity. 


                    6.2.
Miscellaneous. This Agreement
may be executed in several counterparts, all of which are identical, and all of
which counterparts together shall constitute one and the same instrument. A determination that any provision of this
Agreement is unenforceable or invalid shall not affect the enforceability or
validity of any other provision and the determination that the application of
any provision of this Agreement to any person or circumstance is illegal or
unenforceable shall not affect the enforceability or validity of such provision
as it may apply to other persons, entities or circumstances. Time shall be of the essence with respect to
obligations under the Loan Documents.
This Agreement, and its validity, enforcement and interpretation, shall
be governed by New York law (without regard to any conflict of Laws principles)
and applicable United States federal Law. 


                    6.3.
Notices.


                    6.3.1.
Modes of Delivery; Changes. Except as otherwise provided herein, all
notices, and other communications required or which any party desires to give
under this Agreement or any other Loan Document shall be in writing. Unless otherwise specifically provided in
such other Loan Document, all such notices and other communications shall be 


27





deemed sufficiently given or furnished if delivered by personal
delivery, by courier (including overnight delivery services such as FedEx), by
registered or certified United States mail, postage prepaid, or by facsimile
(with, subject to Subsection 6.3.2 below, a confirmatory duplicate copy sent by
first class United States mail), addressed to the party to whom directed or by
(subject to Subsection 6.3.3 below) electronic mail address to Borrower, at the
addresses set forth at the end of this Agreement or to Administrative Agent or
Lenders at the addresses specified for notices on the Schedule of Lenders
(unless changed by similar notice in writing given by the particular party
whose address is to be changed). Any such notice or communication shall be
deemed to have been given and received either at the time of personal delivery
or, in the case of courier or mail, as of the date of first attempted delivery
at the address and in the manner provided herein, or, in the case of facsimile,
upon receipt; provided, however, that service of a notice required by any
applicable statute shall be considered complete when the requirements of that
statute are met. Notwithstanding the
foregoing, no notice of change of address shall be effective except upon actual
receipt. This Section shall not be
construed in any way to affect or impair any waiver of notice or demand
provided in any Loan Document or to require giving of notice or demand to or
upon any person in any situation or for any reason. 


                    6.3.2.
Effectiveness of Facsimile Documents and Signatures. Loan Documents may
be transmitted and/or signed by facsimile.
The effectiveness of any such documents and signatures shall, subject to
applicable Law, have the same force and effect as manually-signed originals and
shall be binding on all parties to the Loan Documents. Administrative Agent may also require that
any such documents and signatures be confirmed by a manually-signed original
thereof; provided, however, that the failure to request or deliver the same
shall not limit the effectiveness of any facsimile document or signature. 


                    6.3.3.
Limited Use of Electronic Mail. Electronic mail and internet and
intranet websites may be used only to distribute routine communications, such
as financial statements and other information, and to distribute Loan Documents
for execution by the parties thereto, and may not be used for any other
purpose. 


                    6.3.4.
Reliance by Administrative Agent and Lenders. Administrative Agent and
Lenders shall be entitled to rely and act upon any notices (including
telephonic Loan advance notices) purportedly given by or on behalf of Borrower
even if (i) such notices were not made in a manner specified herein, were
incomplete or were not preceded or followed by any other form of notice
specified herein, or (ii) the terms thereof, as understood by the recipient,
varied from any confirmation thereof.
Borrower shall indemnify each Agent-Related Person and each Lender from
all losses, costs, expenses and liabilities resulting from the reliance by such
person on each notice purportedly given by or on behalf of Borrower. All telephonic notices to and other
communications with Administrative Agent may be recorded by Administrative
Agent, and each of the parties hereto hereby consents to such recording. If a Lender does not notify or inform
Administrative Agent of whether or not it consents to, or approves of or agrees
to any matter of any nature whatsoever with respect to which its consent,
approval or agreement is required under the express provisions of this
Agreement or with respect to which its consent, approval or agreement is
otherwise requested by Administrative Agent, in connection with the Loan or any
matter pertaining to the Loan, within ten (10) Business Days (or such longer
period as may be specified by Administrative Agent) after such consent,
approval or agreement is 


28





requested by Administrative Agent, Lender shall be deemed to have given
its consent, approval or agreement, as the case may be, with respect to the
matter in question. 


                    6.4.
Payments Set Aside. To the extent that any payment by or on behalf of
Borrower is made to Administrative Agent or any Lender, or Administrative Agent
or any Lender exercises its right of set-off, and such payment or the proceeds
of such set-off or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by Administrative Agent or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law, to a depository
(including Administrative Agent, any Lender or its or their Affiliates) for
returned items or insufficient collected funds, or otherwise, then (a) to the
extent of such recovery, the obligation or part thereof originally intended to
be satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such set-off had not occurred, and (b) each Lender
severally agrees to pay to Administrative Agent upon demand its applicable
share of any amount so recovered from or repaid by Administrative Agent, plus
interest thereon from the date of such demand to the date such payment is made
at a rate per annum equal to the Federal Funds Rate from time to time in
effect. 


                    6.5.
Successors and Assigns.


                    (a)
The provisions of this Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns permitted
hereby, except that Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each
Lender, and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an Eligible Assignee in accordance with the
provisions of subsection (b) of this Section, (ii) by way of participation in
accordance with the provisions of subsection (d) of this Section, or (iii) by
way of pledge or assignment of a security interest subject to the restrictions
of subsection (f) of this Section (and any other attempted assignment or transfer
by any party hereto shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any person (other than
the parties hereto, their respective successors and assigns permitted hereby
and, to the extent expressly contemplated hereby, the Indemnitees) any legal or
equitable right, remedy or claim under or by reason of this Agreement. 


                    (b)
Any Lender may assign to one or more Eligible Assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitment and Pro Rata Share of the Loan at the time owing to it); provided
that: 


	
  
 	
  
 
	
  
 	
           (i) so
 long as no Default has occurred and is continuing the assigning Lender’s
 Commitment after the assignment must be at least $10,000,000.00, and except
 in the case of an assignment of the entire remaining amount of the assigning
 Lender’s Commitment and Pro Rata Share of the Loan at the time owing to it or
 in the case of an assignment to a Lender or an Affiliate of a Lender or an
 Approved Fund as defined in subsection (h) of this Section with respect to a
 Lender, the aggregate amount of the Commitment (which for this purpose
 includes its Pro Rata Share of the Loan outstanding) subject to each such
 assignment, determined as of the date the Assignment and
 


29









	
  
 	
  
 
	
  
 	
 Assumption with respect to such assignment is delivered to
 Administrative Agent, shall not be less than $10,000,000 unless each of
 Administrative Agent and, so long as no Default has occurred and is continuing,
 Borrower otherwise consents (each such consent not to be unreasonably
 withheld or delayed);
 
	
  
 	
  
 
	
  
 	
           (ii) each
 partial assignment shall be made as an assignment of a proportionate part of
 all the assigning Lender’s rights and obligations under this Agreement with
 respect to its Pro Rata Share of the Loan, the Initial Advance, the Future
 Advance and the Commitment assigned; 
 
	
  
 	
  
 
	
  
 	
           (iii) any
 assignment of a Commitment must be approved by Administrative Agent, unless
 the person that is the proposed assignee is itself a Lender (whether or not
 the proposed assignee would otherwise qualify as an Eligible Assignee); and 
 
	
  
 	
  
 
	
  
 	
           (iv) the
 parties to each assignment shall execute and deliver to Administrative Agent
 an Assignment and Assumption, together with a processing and recordation fee
 of $3,500. 
 


Subject to acceptance and recording thereof by Administrative Agent
pursuant to subsection (c) of this Section, from and after the effective date
specified in each Assignment and Assumption, the assignee thereunder shall be a
party hereto and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering
all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to
the benefits of this Agreement with respect to Borrower’s obligations surviving
termination of this Agreement). Upon request, Administrative Agent shall
prepare and Borrower shall execute and deliver one or more Notes (each, a
“Replacement Note”) to the assignee Lender. Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this subsection shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance
with subsection (d) of this Section. 


                    (c)
Administrative Agent, acting solely for this purpose as an agent of Borrower
shall maintain at Administrative Agent’s Office a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and
addresses of Lenders, and the Commitments of, and principal amount of each
Lender’s Pro Rata Share of the Loan owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”). The entries in the Register shall be
conclusive, and Borrower, Administrative Agent and Lenders may treat each
person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary. The Register shall be available for inspection by Borrower and
any Lender, at any reasonable time and from time to time upon reasonable prior
notice. 


                    (d)
Any Lender may, without the consent of, but with prior notice to Administrative
Agent, sell participations to one or more banks or other entities (a
“Participant”)


30





in all or a portion of such Lender’s rights and/or obligations under
this Agreement (including all or a portion of its Commitment and/or its Pro
Rata Share of the Loan owing to it); provided that (i) such Lender’s
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) Borrower, Administrative Agent and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender’s rights and obligations under this Agreement, and (iv) except to
the extent consented to by Administrative Agent in its sole discretion with
respect to each participation, any agreement or instrument pursuant to which a
Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement. 


                    (e)
A Participant shall not be entitled to receive any greater payment under
Sections 1.7, 1.8, 1.12 or any other provision of this Agreement than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant. 


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


                    (g)
If the consent of Borrower to an assignment or to an assignee is required
hereunder (including a consent to an assignment which does not meet the minimum
assignment threshold specified in clause (i) of the provision to the first
sentence of subsection (b) above), Borrower shall be deemed to have given its
consent five (5) Business Days after the date notice thereof has been delivered
by the assigning Lender (through Administrative Agent) unless such consent is
expressly refused by Borrower prior to such fifth Business Day. 


                    (h)
As used herein, the following terms have the following meanings: 


	
  
 	
  
 
	
  
 	
           “Approved
 Fund” means any Fund that is administered or managed by (a) a Lender, (b)
 an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
 administers or manages a Lender. 
 
	
  
 	
  
 
	
  
 	
           “Eligible
 Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an
 Approved Fund; and (d) any other person (other than a natural person)
 approved by Administrative Agent, and, unless a Default has occurred and is
 continuing, Borrower (each such approval not to be unreasonably withheld or
 delayed). 
 
	
  
 	
  
 
	
  
 	
           “Fund”
 means any person (other than a natural person) that is (or will be) engaged
 in making, purchasing, holding or otherwise investing in commercial real
 estate loans and similar extensions of credit in the ordinary course of its
 business. 
 


                    6.6.
Confidentiality. Each of Administrative Agent and Lenders agrees to
maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates’ directors,
officers, employees and agents, including


31





accountants, legal counsel and other advisors (it being understood that
the persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential); (b) to the extent requested by any regulatory authority; (c) to
the extent required by applicable Laws or regulations or by any subpoena or
similar legal process; (d) to any other party to this Agreement; (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder;
(f) subject to an agreement containing provisions substantially the same as
those of this Section, to (i) any assignee of or participant in, or any
prospective assignee of or participant in, any of its rights or obligations
under this Agreement or (ii) any direct or indirect contractual counterparty or
prospective counterparty (or such contractual counterparty’s or prospective
counterparty’s professional advisor) to any Swap Transaction or credit
derivative transaction relating to obligations of Borrower and Guarantor; (g)
with the consent of Borrower; or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii)
becomes available to Administrative Agent or any Lender on a nonconfidential
basis from a source other than Borrower; or (i) to the National Association of
Insurance Commissioners or any other similar organization. For the purposes of
this Section, “Information” means all information received from Borrower or
Guarantor relating to Borrower or Guarantor or their business, other than any
such information that is available to Administrative Agent or any Lender on a
nonconfidential basis prior to disclosure by Borrower or Guarantor; provided
that in the case of information received from Borrower or Guarantor after the
date hereof, such information is clearly identified in writing at the time of
delivery as confidential. Any person required to maintain the confidentiality
of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such person has exercised the same degree of care
to maintain the confidentiality of such Information as such person would accord
to its own confidential information. Administrative Agent and Lenders may
disclose the existence of this Agreement and information about this Agreement
to market data collectors, similar service providers to the lending industry,
and service providers to Administrative Agent and Lenders in connection with
the administration and management of this Agreement, the Loan and Loan
Documents. 


                    6.7.
Set-off. In addition to any rights and remedies of Administrative Agent
and Lenders provided by Law, upon the occurrence and during the continuance of
any Default, Administrative Agent and each Lender is authorized at any time and
from time to time, without prior notice to Borrower or any other party to the
Loan Documents, any such notice being waived by Borrower (on its own behalf and
on behalf of each party to the Loan Documents to the fullest extent permitted
by Law), to set-off and apply any and all deposits, general or special, time or
demand, provisional or final, any time owing by Administrative Agent or such
Lender hereunder or under any other Loan Document to or for the credit or the
account of such parties to the Loan Documents against any and all Indebtedness,
irrespective of whether or not Administrative Agent or such Lender shall have
made demand under this Agreement or any other Loan Document and although such
Indebtedness may be contingent or unmatured or denominated in a currency
different from that of the applicable depositor indebtedness. Each Lender
agrees promptly to notify Borrower and Administrative Agent after any such
set-off and application made by such Lender; provided, however, that the
failure to give such notice shall not affect the validity of such set-off and
application.


32





                    6.8.
 Sharing of Payments. If, other
than as expressly provided elsewhere herein, any Lender shall obtain on account
of the portions of the Loan advanced by it, any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) in
excess of its ratable share (or other share contemplated hereunder) thereof,
such Lender shall immediately (a) notify Administrative Agent of such fact, and
(b) purchase from the other Lenders such participations in the portions of the
Loan made by them as shall be necessary to cause such purchasing Lender to
share the excess payment in respect of such portions of the Loan or such
participations, as the case may be, pro rata with each of them; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from the purchasing Lender under any of the circumstances described
in Section 6.4 (including pursuant to any settlement entered into by the
purchasing Lender in its discretion), such purchase shall to that extent be
rescinded and each other Lender shall repay to the purchasing Lender the
purchase price paid therefor, together with an amount equal to such paying
Lender’s ratable share (according to the proportion of (i) the amount of such
paying Lender’s required repayment to (ii) the total amount so recovered from
the purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered without further
interest thereon. Borrower agrees that any Lender so purchasing a participation
from another Lender may, to the fullest extent permitted by Law, exercise all
its rights of payment (including the right of set-off), but subject to Section
6.7 with respect to such participation as fully as if such Lender were the
direct creditor of Borrower in the amount of such participation. Administrative
Agent will keep records (which shall be conclusive and binding in the absence
of manifest error) of participations purchased under this Section and will in
each case notify Lenders following any such purchases or repayments. Each
Lender that purchases a participation pursuant to this Section shall from and
after such purchase have the right to give all notices, requests, demands,
directions and other communications under this Agreement with respect to the
portion of the Obligations purchased to the same extent as though the
purchasing Lender were the original owner of the Obligations purchased. 


                    6.9.
 Amendments; Survival.
Administrative Agent and Lenders shall be entitled to amend (whether pursuant
to a separate intercreditor agreement or otherwise) any of the terms,
conditions or agreements set forth in Article 5 or as to any other matter in
the Loan Documents respecting payments to Administrative Agent or Lenders or
the required number of Lenders to approve or disapprove any matter or to take
or refrain from taking any action, without the consent of Borrower or any other
person or the execution by Borrower or any other person of any such amendment
or intercreditor agreement. Subject to the foregoing, Administrative Agent may
amend or waive any provision of this Agreement or any other Loan Document, or
consent to any departure by any party to the Loan Documents therefrom which
amendment, waiver or consent is intended to be within Administrative Agent’s
discretion or determination, or otherwise if such amendment, waiver or consent
does not constitute a material change to the Loan Documents; provided, however,
that otherwise no such amendment, waiver or consent shall be effective unless
in writing, signed by the Required Lenders and Borrower or the applicable party
to the Loan Documents, as the case may be, and acknowledged by Administrative
Agent, and each such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; and provided further
that no such amendment, waiver or consent shall: 


	
  
 	
  
 
	
  
 	
           (a)
 extend or increase the Commitment of any Lender (or reinstate any Commitment
 terminated pursuant to Section 4.2), without the written consent of such 
 


33









	
  
 	
  
 
	
  
 	
 Lender (it being understood that a waiver of a Default shall not
 constitute an extension or increase in any Lender’s Commitment);
 
	
  
 	
  
 
	
  
 	
           (b)
 postpone any date fixed by this Agreement or any other Loan Document for any
 payment of principal, interest, fees or other amounts due to Lenders (or any
 of them) hereunder or under any other Loan Document, without the written
 consent of each Lender directly affected thereby; 
 
	
  
 	
  
 
	
  
 	
           (c)
 reduce the principal of, or the rate of interest specified herein on, any
 portion of the Loan or any fees or other amounts payable hereunder or under
 any other Loan Document, without the written consent of each Lender directly
 affected thereby; provided, however, that Administrative Agent may waive any
 obligation of Borrower to pay interest at the Past Due Rate and/or late
 charges for periods of up to thirty (30) days, and only the consent of the
 Required Lenders shall be necessary to waive any obligation of Borrower to
 pay interest at the Past Due Rate or late charges thereafter, or to amend the
 definition of “Past Due Rate” or “late charges”; 
 
	
  
 	
  
 
	
  
 	
           (d)
 change the percentage of the combined Commitments or of the aggregate unpaid
 principal amount of the Loan which is required for Lenders or any of them to
 take any action hereunder, without the written consent of each Lender; 
 
	
  
 	
  
 
	
  
 	
           (e)
 change the definition of “Pro Rata Share” or “Required Lender” or any other
 provision hereof specifying the number or percentage of Lenders required to
 amend, waive or otherwise modify any rights hereunder or make any
 determination or grant any consent hereunder, without the written consent of
 each Lender; 
 
	
  
 	
  
 
	
  
 	
           (f) amend
 this Section, or Section 6.8, without the written consent of each Lender; 
 
	
  
 	
  
 
	
  
 	
           (g)
 release the liability of Borrower or any existing Guarantor without the
 written consent of each Lender; 
 
	
  
 	
  
 
	
  
 	
           (h)
 permit the sale, transfer, pledge, mortgage or assignment of any Loan
 collateral or any direct or indirect interest in Borrower, except as
 expressly permitted under the Loan Documents, without the written consent of
 each Lender; or 
 
	
  
 	
  
 
	
  
 	
           (i)
 transfer or release any lien on, or after foreclosure or other acquisition of
 title by Administrative Agent on behalf of Lenders transfer or sell, any Loan
 collateral except as permitted in Section 5.10, without the written consent
 of each Lender, 
 


and provided further that no amendment, waiver or consent shall, unless
in writing and signed by Administrative Agent in addition to Lenders required
above, affect the rights or duties of Administrative Agent under this Agreement
or any other Loan Document. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment,
waiver or consent hereunder, except that the Commitment of such Lender may not
be increased without the consent of such Lender. Notwithstanding anything to the contrary herein, Administrative Agent is hereby authorized, without
the consent of Lenders,


34





to enter into subordination, non-disturbance and
attornment agreements with tenants on reasonable and customary terms, as
determined by Administrative Agent. 


                              This
Agreement shall continue in full force and effect until the Indebtedness is
paid in full and all of Administrative Agent’s and Lenders’ obligations under
this Agreement are terminated; and all representations and warranties and all
provisions herein for indemnity of the Indemnitees, Administrative Agent and
Lenders (and any other provisions herein specified to survive) shall survive
payment in full, satisfaction or discharge of the Indebtedness, the resignation
or removal of Administrative Agent or replacement of any Lender, and any
release or termination of this Agreement or of any other Loan Documents.” 


                    6.10.
Costs and Expenses. Without limiting any Loan Document and to the extent
not prohibited by applicable Laws, Borrower shall pay when due, shall reimburse
to Administrative Agent for the benefit of itself and Lenders on demand and
shall indemnify Administrative Agent and Lenders from, all reasonable
out-of-pocket fees, costs, and expenses paid or incurred by Administrative
Agent in connection with the negotiation, preparation and execution of this
Agreement and the other Loan Documents (and any amendments, approvals,
consents, waivers and releases requested, required, proposed or done from time to
time), or in connection with the disbursement, administration or collection of
the Loan or the enforcement of the obligations of Borrower or the exercise of
any right or remedy of Administrative Agent, including (a) all reasonable fees
and expenses of Administrative Agent’s counsel; (b) reasonable fees and charges
of each inspector and engineer retained by Administrative Agent for purposes
specified in this Agreement; (c) appraisal, re-appraisal and survey costs; (d)
title insurance charges and premiums; (e) title search or examination costs,
including abstracts, abstractors’ certificates and uniform commercial code
searches; (f) judgment and tax lien searches for Borrower and each Guarantor;
(g) escrow fees; (h) fees and costs of environmental investigations, site
assessments and remediations; (i) recordation taxes, documentary taxes,
transfer taxes and mortgage taxes; (j) filing and recording fees; and (k) loan
brokerage fees. Borrower shall pay all costs and expenses incurred by
Administrative Agent, including attorneys’ fees, if the obligations or any part
thereof are sought to be collected by or through an attorney at law, whether or
not involving probate, appellate, administrative or bankruptcy proceedings.
Borrower shall pay all costs and expenses of complying with the Loan Documents,
whether or not such costs and expenses are included in any budget related to
the Property. Borrower’s obligations under this Section shall survive the
delivery of the Loan Documents, the making of advances, the payment in full of
the Indebtedness, the release or reconveyance of any of the Loan Documents, the
foreclosure of the Mortgage or conveyance in lieu of foreclosure, any
bankruptcy or other debtor relief proceeding, and any other event whatsoever. 


                    6.11.
Tax Forms. 


                              (a)
(i) Each Lender, and each holder of a participation interest herein, that is
not a “United States person” (a “Foreign Lender”) within the meaning of Section
7701(a)(30) of the Code shall deliver to Administrative Agent, prior to receipt
of any payment subject to withholding (or upon accepting an assignment or
receiving a participation interest herein), two duly signed completed copies of
either Form W-8BEN or any successor thereto (relating to such Foreign Lender
and entitling it to a complete exemption from withholding on all payments to be made to such Foreign Lender by
Borrower pursuant to this Agreement) or Form W-8ECI or any



35





successor thereto
(relating to all payments to be made to such Foreign Lender by Borrower
pursuant to this Agreement) of the United States Internal Revenue Service or
such other evidence satisfactory to Borrower and Administrative Agent that such
Foreign Lender is entitled to an exemption from or reduction of, United States withholding
tax, including any exemption pursuant to Section 881(c) of the Code. Thereafter
and from time to time, each such Foreign Lender shall (A) promptly submit to
Administrative Agent such additional duly completed and signed copies of one of
such forms (or such successor forms as shall be adopted from time to time by
the relevant United States taxing authorities) as may then be available under
then current United States Laws and regulations to avoid, or such evidence as
is satisfactory to Borrower and Administrative Agent of any available exemption
from or reduction of, United States withholding taxes in respect of all
payments to be made to such Foreign Lender by Borrower pursuant to the Loan
Documents, (B) promptly notify Administrative Agent of any change in
circumstances which would modify or render invalid any claimed exemption or
reduction, and (C) take such steps as shall not be materially disadvantageous
to it, in the reasonable judgment of such Lenders, and as may be reasonably
necessary (including the re-designation of its lending office, if any) to avoid
any requirement of applicable Laws that Borrower make any deduction or
withholding for taxes from amounts payable to such Foreign Lender. 


                              (ii)
 Each Foreign Lender, to the
extent it does not act or ceases to act for its own account with respect to any
portion of any sums paid or payable to such Lender under any of the Loan
Documents (for example, in the case of a typical participation by such Lender),
shall deliver to Administrative Agent on the date when such Foreign Lender
ceases to act for its own account with respect to any portion of any such sums
paid or payable, and at such other times as may be necessary in the
determination of Administrative Agent (in the reasonable exercise of its
discretion), (A) two duly signed completed copies of the forms or statements
required to be provided by such Lender as set forth above, to establish the
portion of any such sums paid or payable with respect to which such Lender acts
for its own account that is not subject to U.S. withholding tax, and (B) two
duly signed completed copies of United States Internal Revenue Service Form
W-8IMY (or any successor thereto), together with any information such Lender
chooses to transmit with such form, and any other certificate or statement of
exemption required under the Code, to establish that such Lender is not acting
for its own account with respect to a portion of any such sums payable to such
Lender. 


                              (iii)
Borrower shall not be required to pay any additional amount to any Foreign
Lender under Section 1.11, (A) with respect to any Taxes required to be
deducted or withheld on the basis of the information, certificates or
statements of exemption such Lender transmits with an United States Internal
Revenue Service Form W-8IMY pursuant to this subsection (a) of this Section, or
(B) if such Lender shall have failed to satisfy the foregoing provisions of
this subsection (a); provided that if such Lender shall have satisfied the
requirement of this subsection (a) on the date such Lender became a Lender or
ceased to act for its own account with respect to any payment under any of the
Loan Documents, nothing in this subsection (a) shall relieve Borrower of its
obligation to pay any amounts pursuant to Section 1.11 in the event that, as a
result of any change in any applicable law, treaty or governmental rule,
regulation or order, or any change in the interpretation, administration or
application thereof, such Lender is no longer properly entitled to deliver
forms, certificates or other evidence at a subsequent date establishing the
fact that such Lender or other person for the account of 


36





which such Lender receives any sums payable under any of the Loan
Documents is not subject to withholding or is subject to withholding at a
reduced rate. 


                              (iv)
Administrative Agent may, without reduction, withhold any Taxes required to be
deducted and withheld from any payment under any of the Loan Documents with
respect to which Borrower is not required to pay additional amounts under this
subsection (a). 


                    (b)
Upon the request of Administrative Agent, each Lender that is a “United States
person” within the meaning of Section 7701(a)(30) of the Code shall deliver to
Administrative Agent two duly signed completed copies of United States Internal
Revenue Service Form W-9. If such Lender fails to deliver such forms, then
Administrative Agent may withhold from any interest payment to such Lender an
amount equivalent to the applicable back-up withholding tax imposed by the Code,
without reduction. 


                    (c)
If any Tribunal asserts that Administrative Agent did not properly withhold or
backup withhold, as the case may be, any tax or other amount from payments made
to or for the account of any Lender, such Lender shall indemnify Administrative
Agent therefor, including all penalties and interest and costs and expenses
(including attorney fees) of Administrative Agent. The obligation of Lenders
under this subsection shall survive the removal or replacement of a Lender, the
payment of all Indebtedness and the resignation or replacement of
Administrative Agent. 


                    6.12.
Further Assurances. Borrower will, upon Administrative Agent’s request,
(a) promptly correct any defect, error or omission in any Loan Document; (b)
execute, acknowledge, deliver, procure, record or file such further instruments
and do such further acts as Administrative Agent deems reasonably necessary,
desirable or proper to carry out the purposes of the Loan Documents and to
identify and subject to the liens and security interest of the Loan Documents
any property intended to be covered thereby, including any renewals, additions,
substitutions, replacements, or appurtenances to the Property; (c) execute,
acknowledge, deliver, procure, file or record any document or instrument
Administrative Agent deems necessary, desirable, or proper to protect the liens
or the security interest under the Loan Documents against the rights or
interests of third persons; and (d) provide such certificates, documents,
reports, information, affidavits and other instruments and do such further acts
deemed necessary, desirable or proper by Administrative Agent to comply with
the requirements of any agency having jurisdiction over Administrative Agent.
In addition, at any time, and from time to time, upon request by Administrative
Agent or any Lender, Borrower will, at Borrower’s expense, provide any and all
further instruments, certificates and other documents as may, in the opinion of
Administrative Agent or such Lender, be necessary or desirable in order to
verify Borrower’s identity and background in a manner satisfactory to
Administrative Agent or such Lender. 


                    6.13.
Inducement to Lenders. The representations and warranties contained in
this Agreement and the other Loan Documents (a) are made to induce Lenders to
make the Loan and extend any other credit to or for the account of Borrower
pursuant hereto, and Administrative Agent and Lenders are relying thereon, and
will continue to rely thereon, and (b) shall survive any bankruptcy proceedings
involving Borrower, Guarantor or the Property, foreclosure, or conveyance in
lieu of foreclosure. 


37





                    6.14.
Forum. Each party to this Agreement hereby irrevocably submits generally
and unconditionally for itself and in respect of its property to the
jurisdiction of any state court, or any United States federal court, sitting in
the State specified in Section 6.2 of this Agreement and to the jurisdiction of
any state court or any United States federal court, sitting in the state in
which any of the Property is located, over any suit, action or proceeding
arising out of or relating to this Agreement or the Indebtedness. Each party to
this Agreement hereby irrevocably waives, to the fullest extent permitted by
Law, any objection that they may now or hereafter have to the laying of venue
in any such court and any claim that any such court is an inconvenient forum.
Each party to this Agreement hereby agrees and consents that, in addition to
any methods of service of process provided for under applicable Law, all
service of process in any such suit, action or proceeding in any state court,
or any United States federal court, sitting in the state specified in Section
6.2 may be made by certified or registered mail, return receipt requested,
directed to such party at its address for notice stated in the Loan Documents,
or at a subsequent address of which Administrative Agent received actual notice
from such party in accordance with the Loan Documents, and service so made
shall be complete five (5) days after the same shall have been so mailed.
Nothing herein shall affect the right of Administrative Agent to serve process
in any manner permitted by Law or limit the right of Administrative Agent to
bring proceedings against any party in any other court or jurisdiction. 


                    6.15.
Interpretation. References to “Dollars”, “$”, “money”, “payments” or
other similar financial or monetary terms are references to lawful money of the
United States of America. References to Articles, Sections, and Exhibits are,
unless specified otherwise, references to articles, sections and exhibits of
this Agreement. Words of any gender shall include each other gender. Words in
the singular shall include the plural and words in the plural shall include the
singular. References to Borrower or Guarantor shall mean, each person
comprising same, jointly and severally. References to “persons” shall include
both natural persons and any legal entities, including public or governmental
bodies, agencies or instrumentalities. The words “include” and “including”
shall be interpreted as if followed by the words “without limitation”. Captions
and headings in the Loan Documents are for convenience only and shall not
affect the construction of the Loan Documents. 


                    6.16.
No Partnership, etc. The relationship between Lenders (including
Administrative Agent) and Borrower is solely that of lender and borrower.
Neither Administrative Agent nor any Lender has any fiduciary or other special
relationship with or duty to Borrower and none is created by the Loan
Documents. Nothing contained in the Loan Documents, and no action taken or
omitted pursuant to the Loan Documents, is intended or shall be construed to
create any partnership, joint venture, association, or special relationship
between Borrower and Administrative Agent or any Lender or in any way make
Administrative Agent or any Lender a co-principal with Borrower with reference
to the Project, the Property or otherwise. In no event shall Administrative
Agent’s or Lenders’ rights and interests under the Loan Documents be construed
to give Administrative Agent or any Lender the right to control, or be deemed
to indicate that Administrative Agent or any Lender is in control of, the
business, properties, management or operations of Borrower. 


                    6.17.
Records. The unpaid amount of the Loan and the amount of any other
credit extended by Administrative Agent or Lenders to or for the account of
Borrower set forth on the books and records of Administrative Agent shall be
presumptive evidence of the amount


38





thereof owing and unpaid, but failure to record any such amount on
Administrative Agent’s books and records shall not limit or affect the
obligations of Borrower under the Loan Documents to make payments on the Loan
when due. 


                   6.18.
 Commercial Purpose. Borrower
warrants that the Loan is being made solely to acquire or carry on a business
or commercial enterprise, and/or Borrower is a business or commercial
organization. Borrower further warrants that all of the proceeds of this Loan
shall be used for commercial purposes and stipulates that the Loan shall be
construed for all purposes as a commercial loan, and is made for other than
personal, family, household or agricultural purposes. 


                    6.19.
WAIVER OF JURY TRIAL. EACH PARTY TO THIS AGREEMENT WAIVES TRIAL BY JURY
IN ANY ACTION OR PROCEEDING TO WHICH THEY MAY BE A PARTY, ARISING OUT OF, IN
CONNECTION WITH OR IN ANY WAY PERTAINING TO, ANY NOTE, THE LOAN AGREEMENT, THE
MORTGAGE OR ANY OF THE OTHER LOAN DOCUMENTS. IT IS AGREED AND UNDERSTOOD THAT
THIS WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL CLAIMS AGAINST ALL
PARTIES TO SUCH ACTION OR PROCEEDINGS, INCLUDING CLAIMS AGAINST PARTIES WHO ARE
NOT PARTIES TO ANY NOTE. THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY
MADE BY EACH PARTY TO THIS AGREEMENT, AND THEY HEREBY REPRESENT THAT NO
REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY INDIVIDUAL TO INDUCE
THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR NULLIFY ITS EFFECT.
EACH PARTY FURTHER REPRESENTS AND WARRANTS THAT IT HAS BEEN REPRESENTED IN THE
EXECUTION OF THE LOAN DOCUMENTS AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT
LEGAL COUNSEL, OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED BY INDEPENDENT
LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE
OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL. 


                    6.20.
Service of Process. Borrower hereby consents to process being served in
any suit, action, or proceeding instituted in connection with this Loan by (a)
the mailing of a copy thereof by certified mail, postage prepaid, return
receipt requested, to Borrower and (b) serving a copy thereof upon Robert
Masters, the agent hereby designated and appointed by Borrower as Borrower’s
agent for service of process. Borrower irrevocably agrees that such service
shall be deemed to be service of process upon Borrower in any such suit,
action, or proceeding. Nothing in any Note shall affect the right of
Administrative Agent to serve process in any manner otherwise permitted by Law
and nothing in any Note will limit the right of Administrative Agent on behalf
of Lenders otherwise to bring proceedings against Borrower in the courts of any
jurisdiction or jurisdictions. 


                    6.21.
USA Patriot Act Notice. Each Lender and Administrative Agent (for itself
and not on behalf of any Lender) hereby notifies Borrower that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the “Act”), it is required to obtain, verify and record
information that identifies Borrower, which information includes the name and
address of Borrower and other information that will allow such Lender or
Administrative Agent, as applicable, to identify Borrower in accordance with
the Act.


39






                    6.22.
Entire Agreement. The Loan Documents constitute the entire understanding
and agreement between Borrower, Administrative Agent and Lenders with respect
to the transactions arising in connection with the Loan, and supersede all prior
written or oral understandings and agreements between Borrower, Administrative
Agent and Lenders with respect to the matters addressed in the Loan
Documents. In particular, and without
limitation, the terms of any commitment letter, letter of intent or quote
letter by Administrative Agent or any Lender to make the Loan are merged into
the Loan Documents. Neither
Administrative Agent nor any Lender has made any commitments to extend the term
of the Loan past its stated maturity date or to provide Borrower with financing
except as set forth in the Loan Documents.
Except as incorporated in writing into the Loan Documents, there are
not, and were not, and no persons are or were authorized by Administrative
Agent or any Lender to make, any representations, understandings, stipulations,
agreements or promises, oral or written, with respect to the matters addressed
in the Loan Documents. 


                    BORROWER FURTHER
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, IN CONNECTION
WITH ANY SUIT, ACTION OR PROCEEDING BROUGHT BY OR ON BEHALF OF ADMINISTRATIVE
AGENT OR LENDERS WITH RESPECT TO THIS AGREEMENT, THE NOTES OR OTHERWISE IN
RESPECT OF THE LOAN, ANY AND EVERY RIGHT BORROWER MAY HAVE TO (X) INJUNCTIVE
RELIEF, (Y) INTERPOSE ANY COUNTERCLAIM THEREIN, OTHER THAN A COMPULSORY
COUNTERCLAIM, AND (Z) HAVE THE SAME CONSOLIDATED WITH ANY OTHER OR SEPARATE
SUIT, ACTION OR PROCEEDING. NOTHING
CONTAINED IN THE IMMEDIATELY PRECEDING SENTENCE SHALL PREVENT OR PROHIBIT BORROWER
FROM INSTITUTING OR MAINTAINING A SEPARATE ACTION AGAINST LENDER WITH RESPECT
TO ANY ASSERTED CLAIM. 


                    6.23.
Limitation on Liability. Borrower waives any right to assert or make any
claim against Administrative Agent or any Lender (or to sue Administrative
Agent or any Lender upon any claim for) any special, indirect, incidental,
punitive or consequential damages in respect of any breach or wrongful conduct
(whether the claim is based on contract, tort or duty imposed by law) in
connection with, arising out of or in any way related to this Agreement, the
other Loan Documents or the transactions contemplated hereby and/or thereby, or
any act, omission or event in connection therewith. 


                    6.24.
Third Parties; Benefit. All conditions to the obligation of Lenders or
Administrative Agent to make advances hereunder are imposed solely and
exclusively for the benefit of Lenders, Administrative Agent and their assigns
and no other persons shall have standing to require satisfaction of such
conditions in accordance with their terms or be entitled to assume that Lenders
or Administrative Agent will refuse to make advances in the absence of strict
compliance with any or all thereof and no other person shall, under any
circumstances, be deemed to be the beneficiary of such conditions, any or all
of which may be freely waived in whole or in part by Lenders or Administrative
Agent at any time in the sole and absolute exercise of their discretion. The terms and provisions of this Agreement
and the other Loan Documents are for the benefit of the parties hereto and,
except as herein specifically provided, no other person shall have any right or
cause of action on account thereof. 


40





                    6.25.
Rules of Construction. The words “hereof”, “herein”, “hereunder”, “hereto”,
and other words of similar import refer to this Agreement in its entirety. The
terms “agree” and “agreements” mean and include “covenant” and “covenants”. The
words “include” and “including” shall be interpreted as if followed by the
words “without limitation”. The captions and headings contained in this
Agreement are included herein for convenience of reference only and shall not
be considered a part hereof and are not in any way intended to define, limit or
enlarge the terms hereof. All references (a) made in the neuter, masculine or
feminine gender shall be deemed to have been made in all such genders, (b) made
in the singular or plural number shall be deemed to have been made,
respectively, in the plural or singular number as well, (c) to the Loan
Documents are to the same as extended, amended, restated, supplemented or
otherwise modified from time to time unless expressly indicated otherwise, (d)
to the Land, the Improvements or the Property shall mean all or any portion of
each of the foregoing, respectively, and (e) to Articles, Sections and
Schedules are to the respective Articles, Sections and Schedules contained in
this Agreement unless expressly indicated otherwise. 


                    6.26.
Cross-Default. This Loan shall be cross-defaulted with (i) any and all
other loans which Borrower (or any entity included within Borrower shall have
from any Lender (or any subsidiary or affiliated entity of Lender) during the
term of this Loan, whether existing as of the date of this Agreement or subsequently
made and (ii) the credit facility provided by Bank of America, N.A. (“BofA”)
and certain other lenders to Guarantor pursuant to that certain Revolving
Credit Agreement dated October 10, 2007 by and between Guarantor, BofA and
certain other lenders, as the same may be modified, amended, restated or
replaced from time to time. A default under any of the above-described loans or
credit facilities shall constitute a Default under this Loan; however, a
Default under this Loan shall not in itself constitute a Default under the
above-described other loans unless and to the extent expressly set forth in the
agreements and instruments governing such other loans. 


                    6.27.
Lien Law. This Agreement is subject to the trust fund provision of the Lien
Law including, without limitation, Section 13 thereof. 


[Remainder of page intentionally left blank]


41





                    IN
WITNESS WHEREOF, this Loan Agreement is EXECUTED and DELIVERED UNDER SEAL as of
October 26, 2010. 


	
  
 	
  
 	
  
 
	
  
 	
 BORROWER:
 
	
  
 	
  
 	
  
 
	
  
 	
 ACADIA
 CORTLANDT LLC, a Delaware limited liability company
 
	
  
 
	
  
 	
  
 	
  
 
	
  
 	
 By 
 	
 /s/ Robert
 Masters
 
	
  
 	
  
 	

 
 
	
  
 	
  
 	
 Robert
 Masters
 
	
  
 	
  
 	
 Senior Vice
 President
 
	
  
 	
  
 	
  
 
	
  
 	
 Borrower’s
 Address for Notices:
 
	
  
 	
  
 	
  
 
	
  
 	
 c/o Acadia
 Realty Trust
 
	
  
 	
 1311
 Mamaroneck Avenue, Suite 260
 
	
  
 	
 White
 Plains, New York 10605
 
	
  
 	
 Telephone:    914-288-8100
 
	
  
 	
 Telefax:
         914-428-3646
 
	
  
 	
 Email:
            rmasters@acadiarealty.com
 
	
  
 	
  
 	
  
 
	
  
 	
 Borrower’s
 Federal Tax Identification Number:
 
	
  
 	
 26-4114099
 
	
  
 	
  
 	
  
 
	
  
 	
 BANK OF
 AMERICA, N.A., a national banking association, individually as Administrative
 Agent and a Lender
 
	
  
 
	
  
 	
  
 	
  
 
	
  
 	
 By 
 	
 /s/ Gregory
 Egli
 
	
  
 	
  
 	

 
 
	
  
 	
  
 	
 Gregory Egli
 
	
  
 	
  
 	
 Senior Vice
 President
 
	
  
 	
  
 	
  
 
	
  
 	
 Lender’s
 Address for Notices:
 
	
  
 	
  
 	
  
 
	
  
 	
 Bank of
 America, N.A.
 
	
  
 	
 One Bryant
 Park, 35th Floor
 
	
  
 	
 New York,
 New York 10036
 









EXHIBIT “A”


Legal Description of Land


ALL THAT CERTAIN PARCEL OF LAND SITUATE IN THE TOWN OF CORTLANDT,
COUNTY OF WESTCHESTER AND STATE OF NEW YORK THAT IS A PORTION OF THOSE LANDS
DESIGNATED PARCEL 1, PARCEL 2A AND PARCEL 2B ON THAT CERTAIN “RESUBDIVISION
PLAT OF FILED MAP NO. 17837 SECTION 1 MID-WESTCHESTER INDUSTRIAL PARK, INC.,”
WHICH WAS FILED IN THE WESTCHESTER COUNTY CLERK’S OFFICE ON OCTOBER 15, 1984 AS
MAP NO. 21741 THAT IS BOUNDED AND DESCRIBED AS FOLLOWS: 


BEGINNING AT A POINT ON THE SOUTHEASTERLY LINE OF U.S. ROUTE 6 (AKA 5
MILE TURNPIKE AND/OR EAST MAIN STREET AND/OR STATE HIGHWAY 1309) WHERE IT IS
MET BY THE LINE DIVIDING THE LANDS HEREIN DESCRIBED ON THE NORTHEAST FROM LANDS
DESIGNATED LOT NO. 21 ON THAT CERTAIN “MAP NO.
1 GULL MANOR..,” WHICH WAS FILED IN THE WESTCHESTER COUNTY CLERK’S
OFFICE ON MARCH 25, 1954 AS MAP NO. 8930, WHICH POINT OCCUPIES COORDINATE
POSITION 


N 476,045.23
(Y) 

E 625,146.49 (X) OF THE NEW YORK STATE COORDINATE SYSTEM, EAST ZONE; 


THENCE FROM THE SAID POINT OF BEGINNING NORTHEASTERLY ALONG THE
SOUTHEASTERLY LINE OF U.S. ROUTE 6 NORTH 31o 31’ 51” EAST 202.41 FEET AND TO A
POINT AT THE SOUTHWESTERLY LINE OF LOT NO. 4 SHOWN ON THAT CERTAIN MAP ENTITLED
“SECTION NO. 1 MID-WESTCHESTER INDUSTRIAL PARK” WHICH WAS FILED IN THE
WESTCHESTER COUNTY CLERK’S OFFICE ON OCTOBER 16, 1972 AS MAP NO. 17837; 


THENCE ALONG THE SOUTHWESTERLY, SOUTHEASTERLY AND NORTHEASTERLY LINES
OF LOT NO. 4 SHOWN ON FILED MAP NO. 17837 THE FOLLOWING COURSES: 


SOUTH 54o 41’
49” EAST 400.00 FEET;

NORTH 35o 15’ 51” EAST 200.00 FEET; 

NORTH 54o 41’ 49” WEST 201.75 FEET TO A POINT AT THE LINE OF LANDS NOW OR
FORMERLY OF MOBIL CENTERS, INC; 


THENCE ALONG
THE SAID MOBIL CENTERS, INC. LANDS: 


NORTH 35o 15’
51” EAST 150.02 FEET AND; 

NORTH 54o 41’ 49” WEST 174.98 FEET TO A POINT; 


THENCE STILL
ALONG THE SAID LANDS OF MOBIL CENTERS, INC. WESTERLY ON A TANGENT CURVE TO THE
LEFT, THE CENTRAL ANGLE OF WHICH IS 90o 02’ 20”, 






THE RADIUS OF
WHICH 25.00 FEET FOR 39.29 FEET TO ANOTHER POINT ON THE SAID SOUTHEASTERLY LINE
OF U.S. ROUTE 6; 


THENCE
NORTHEASTERLY ONCE AGAIN ALONG THE SAID SOUTHEASTERLY LINE OF U.S. ROUTE 6; 


NORTH 35o 15’
51” EAST 103.05 FEET AND; 

NORTH 34o 16’ 11” EAST 16.52 FEET TO A POINT AT THE LINE OF LANDS NOW OR
FORMERLY OF W.W. GEIS, JR.; 


THENCE ALONG
AND AROUND THE SAID W.W GEIS, JR. LANDS THE FOLLOWING, FIRST TURNING ABOUT AND
SOUTHERLY ON A TANGENT CURVE TO THE LEFT, THE CENTRAL ANGLE OF WHICH IS 88o 58’
00”, THE RADIUS OF WHICH IS 25.00 FEET FOR 38.82 FEET AND THEN FOLLOWING
COURSES: 


SOUTH 54o 41’
49” EAST 187.41 FEET;

SOUTH 87o 58’ 31” EAST 50.19 FEET;

NORTH 34o 14’ 31” EAST 293.26 FEET AND; 

NORTH 55o 45’ 29” WEST 248.82 FEET TO STILL ANOTHER POINT ON THE SOUTHEASTERLY
LINE OF U.S. ROUTE 6; 


THENCE
NORTHEASTERLY ONCE AGAIN ALONG THE SAID SOUTHEASTERLY LINE OF U.S. ROUTE 6; 


NORTH 38o 26’
11” EAST 91.89 FEET AND; 


NORTH 36o 40’
11” EAST 175.50 FEET TO A POINT AT THE LINE LAND NOW OR FORMERLY OF HOME DEPOT
U.S.A., INC. LANDS, THE FOLLOWING FIRST 


SOUTH 53o 24’
23’ EAST 28.04 FEET 


THEN ON A
TANGENT CURVE TO THE RIGHT, THE CENTRAL ANGLE OF WHICH IS 44o 59’ 45”, THE
RADIUS OF WHICH IS 100.00 FEET FOR 78.53 FEET, 


THEN SOUTH 08o
24’ 38” EAST 170.39 FEET 


THEN ON A
TANGENT CURVE TO THE RIGHT, THE CENTRAL ANGLE OF WHICH IS 42o 53’ 52”, THE
RADIUS OF WHICH IS 330.00 FEET FOR 245.35 FEET, AND THEN THE FOLLOWING COURSES:



SOUTH 34o 11’
14” WEST 7.14 FEET;

SOUTH 42o 10’ 35” EAST 571.35 FEET;

NORTH 81o 40’ 00” EAST 752.50 FEET;

NORTH 42o 10’ 35” WEST 546.00 FEET;

SOUTH 47o 49’ 25” WEST 12.00 FEET;

NORTH 42o 10’ 35” WEST 334.49 FEET;

NORTH 47o 49’ 25” EAST 64.36 FEET;


2





NORTH 42o 10’
35” WEST 551.64 FEET TO A POINT ON THE SOUTHEASTERLY LINE OF U.S. ROUTE 6; 


THENCE NORTHEASTERLY ALONG THE SOUTHEASTERLY LINE OF U.S. ROUTE 6 THE
FOLLOWING COURSES: 


NORTH 43o 07’ 31” EAST 240.77 FEET;

NORTH 46o 43’ 08” EAST 200.86 FEET;

NORTH 47o 51’ 46” EAST 169.07 FEET;

NORTH 54o 16’ 42” EAST 77.64 FEET;

NORTH 43o 47’ 18” EAST 103.43 FEET;

NORTH 06o 57’ 25” EAST 7.49 FEET;

NORTH 44o 52’ 56” EAST 141.98 FEET;

NORTH 56o 38’ 06” EAST 194.10 FEET;

NORTH 47o 40’ 06” EAST 31.98 FEET TO A POINT AT THE LINE DIVIDING PARCEL NO.
2A, ON THE SOUTHWEST FROM PARCEL NO. 1, ON THE NORTHEAST, BOTH AS SHOWN ON SAID
FILED MAP NO. 21741, WHICH POINT OCCUPIES COORDINATE POSITION 


N 478,107.32
(Y) 

E 626,930.25 (X) OF THE NEW YORK STATE COORDINATE SYSTEM, EAST ZONE; 


THENCE STILL
ALONG THE SOUTHEASTERLY LINE OF U.S. ROUTE 6 THE FOLLOWING COURSES: 


NORTH 47o 40’
06” EAST 15.49 FEET;

NORTH 57o 07’ 47” EAST 41.34 FEET;

NORTH 46o 37’ 24” EAST 65.92 FEET;

NORTH 60o 47’ 16” EAST 135.27 FEET;

NORTH 58o 29’ 38” EAST 200.48 FEET;

NORTH 76o 26’ 07” EAST 65.57 FEET;

NORTH 53o 06’ 18” EAST 114.53 FEET;

NORTH 59o 20’ 46” EAST 157.01 FEET;

NORTH 67o 37’ 05” EAST 102.26 FEET;

NORTH 39o 31’ 22” EAST 47.05 FEET;

NORTH 62o 09’ 00” EAST 123.28 FEET;

NORTH 59o 26’ 00” EAST 57.40 FEET;

NORTH 58o 13’ 00” EAST 81.60 FEET;

NORTH 61o 59’ 00” EAST 41.60 FEET;

NORTH 38o 58’ 00” EAST 17.42 FEET;

NORTH 61o 26’ 39” EAST 147.75 FEET;

NORTH 57o 24’ 50” EAST 100.18 FEET; 

NORTH 63o 24’ 40” EAST 64.74 FEET TO A POINT AT THE LINE OF LANDS NOW OR
FORMERLY OF BERKO, WHICH POINT OCCUPIES COORDINATE POSITION 


N 478.912.07
(Y) 

E 628,275.78 (X) OF THE NEW YORK STATE COORDINATE SYSTEM, EAST ZONE; 


3





THENCE SOUTHERLY ALONG THE SAID BERKO LANDS AND CONTINUING ALONG LANDS
NOW OR FORMERLY OF FELDMAN, NOW OR FORMERLY OF BERTINO, AND LANDS NOW OR
FORMERLY OF MOHEGAN REALTY CO., THE FOLLOWING FIVE (5) COURSES AND DISTANCES: 


SOUTH 8o 21’
49” EAST 184.14 FEET;

SOUTH 7o 23’ 59” EAST 204.45 FEET;

SOUTH 8o 27’ 49” EAST 457.05 FEET;

SOUTH 7o 57’ 49” EAST 226.72 FEET; 

SOUTH 8o 03’ 49” EAST 841.87 FEET TO LANDS NOW OR FORMERLY OF BOGIN, WHICH
POINT OCCUPIES COORDINATE POSITION 


N 477,016.99
(Y) 

E 628,545.67 (X) OF THE NEW YORK STATE COORDINATE SYSTEM, EAST ZONE; 


THENCE ALONG SAID LANDS ON A COURSE OF SOUTH 84o 45’ 51” WEST FOR A
DISTANCE OF 565.62 FEET TO A POINT THAT IS A CORNER THEREOF, WHICH POINT IS AT
THE SOUTHEASTERLY END OF THE LINE DIVIDING PARCEL NO. 2A, ON THE SOUTHWEST FROM
PARCEL NO 1, ON THE NORTHEAST, BOTH AS SHOWN ON SAID FILED MAP 21741, WHICH
POINT OCCUPIES COORDINATE POSITION 


N 476,965.38
(Y) 

E 627,982.41 (X) OF THE NEW YORK STATE COORDINATE SYSTEM, EAST ZONE; 


THENCE CONTINUING ALONG LANDS NOW OR FORMERLY OF BOGIN AND DEANIN ON A
COURSE OF SOUTH 8o 44’ 49” EAST FOR A DISTANCE OF 775.84 FEET TO LANDS NOW OR
FORMERLY OF MCKEEL; 


THENCE ALONG THE SAID MCKEEL LANDS AND IN PART ALONG THE ORIGINAL
CENTER LINE OF A BROOK AS THE SAID CENTER LINE APPEARS ON THAT CERTAIN MAP
ENTITLED “SURVEY... MIDWESTCHESTER INDUSTRIAL PARK INC...,” WHICH WAS FILED IN
THE WESTCHESTER COUNTY CLERK’S OFFICE ON JANUARY 24, 1969 ON MAP NO. 16581 THE
FOLLOWING COURSES AND DISTANCES: 


SOUTH 83o 29’
51” WEST 1204.04 FEET;

SOUTH 64o 31’ 01” WEST 35.43 FEET;

SOUTH 87o 29’ 41” WEST 100.66 FEET;

SOUTH 79o 30’ 01” WEST 100.04 FEET;

SOUTH 80o 21’ 21” WEST 99.99 FEET;

SOUTH 82o 37’ 11” WEST 219.69 FEET;

SOUTH 81o 10’ 01” WEST 102.96 FEET;

SOUTH 74o 14’ 51” WEST 99.92 FEET;

SOUTH 75o 42’ 31” WEST 81.58 FEET;

SOUTH 73o 18’ 21” WEST 101.89 FEET;

SOUTH 87o 12’ 21” WEST 100.12 FEET;

SOUTH 89o 38’ 51” WEST 100.44 FEET;

SOUTH 84o 23’ 51” WEST 107.95 FEET; 


4





SOUTH 81o 42’
51” WEST 119.29 FEET;

SOUTH 58o 38’ 31” WEST 47.83 FEET;

SOUTH 48o 18’ 59” WEST 109.79 FEET AND; 

NORTH 68o 22’ 19” WEST 32.81 FEET TO A POINT AT THE LINE OF LANDS NOW OR
FORMERLY OF SHELBY-COLERIDGE HOLDING CORP; 


THENCE ALONG THE SAID SHELBY-COLERIDGE HOLDING CORP. LANDS AND ALONG
THE NORTHEASTERLY LINES OF LOT NO. 19 AND LOT 21 AS SHOWN ON THE AFOREMENTIONED
“MAP NO. 1 GULL MANOR...” FILED MAP NO. 8930, THE FOLLOWING COURSES: 


NORTH 68o 14’
09” WEST 17.28 FEET;

SOUTH 89o 44’ 51” WEST 61.00 FEET;

NORTH 46o 00’ 09” WEST 54.45 FEET;

NORTH 61o 11’ 09” WEST 72.08 FEET; 

NORTH 55o 43’ 09” WEST 93.25 FEET TO THE AFOREMENTIONED SOUTHEASTERLY LINE OF
U.S. ROUTE 6 AND THE POINT OR PLACE OF BEGINNING. 


TOGETHER WITH THE BENEFITS AND SUBJECT TO THE BURDENS OF THE GRANT OF
SANITARY SEWER EASEMENT MADE BY AND BETWEEN HARDEE’S AND MID-WESTCHESTER
INDUSTRIAL PARK, INC. RECORDED IN LIBER 7137 PAGE 92. 


TOGETHER WITH THE BENEFITS OF THE EASEMENT RECORDED IN THE WESTCHESTER
COUNTY CLERK’S LIBER 7099 OF DEEDS AT PAGE 228 AND REPEATED IN LIBER 7143 OF
DEEDS AT PAGE 449 AND LIBER 7235 OF DEEDS AT PAGE 88. 


TOGETHER WITH THE BENEFITS OF THE DECLARATION AND GRANT OF RECIPROCAL
EASEMENTS MADE BY CORTLANDT TOWN CENTER LIMITED PARTNERSHIP AND RECORDED IN THE
WESTCHESTER COUNTY CLERK’S LIBER 11673 OF DEEDS AT PAGE 78. 


TOGETHER WITH THE BENEFITS OF THE RECIPROCAL EASEMENT AND OPERATION
AGREEMENT MADE BY BETWEEN CORTLANDT TOWN CENTER LIMITED PARTNERSHIP AND HOME
DEPOT U.S.A. INC. AND RECORDED IN THE WESTCHESTER COUNTY CLERK’S LIBER 11618 OF
DEEDS AT PAGE 1.


5





EXHIBIT “B”


Definitions and Financial Statements


                    1.
Definitions: As used in this Agreement and the attached exhibits, the
following terms shall have the following meanings: 


                    “Acadia
Realty Trust” means Acadia Realty Trust, a Maryland real estate investment
trust, which is an indirect principal in Borrower and Guarantor. 


                    “Additional
Interest” means all payments required to be made by Borrower under a Swap
Contract. 


                    “Adjusted
Net Operating Income” means Operating Income less the sum of (i) Adjusted
Operating Expenses plus (ii) the Vacancy Loss Factor. 


                    “Adjusted
Operating Expenses” means 100% of the aggregate amount of all actual
operating expenses of the Property paid by Borrower in the most recently ended
six (6) month period for which Borrower has delivered financial statements to
Administrative Agent, , annualized (i.e., doubled) and provided that the amount
of management fees included in Adjusted Operating Expenses shall be equal to
the greater of (x) actual management fees paid by Borrower with respect to such
period or (y) 3.0% of the operating income received by Borrower during such
period. Adjusted Operating Expenses shall exclude from expenses payments of
principal and interest under the Loan Documents and other expenses payable to
Administrative Agent and Lenders pursuant to the Loan Documents, capital
expenditures and leasing commissions and extraordinary items of expense. 


                    “Administrative
Agent” means Bank of America, N.A., in its capacity as administrative agent
under any of the Loan Documents, or any successor administrative agent. 


                    “Administrative
Agent Advances” has the meaning set forth in Section 1.14. 


                    “Administrative
Agent’s Office” means Administrative Agent’s address and, as appropriate,
account as set forth on the Schedule of Lenders, or such other address or
account as Administrative Agent hereafter may from time to time notify Borrower
and Lenders. 


                    “Administrative
Agent’s Time” means the time of day observed in the city where
Administrative Agent’s Office is located. 


                    “Advance
Amount” has the meaning set forth in Section 1.13. 


                    “Affiliate”
means any person directly or indirectly through one or more intermediaries
controlling, controlled by, or under direct or indirect common control with,
such person. A person shall be deemed to be “controlled by” any other person if
such other person possesses, directly or indirectly, power (a) to vote 10% or
more of the securities (on a fully diluted basis) having ordinary voting power
for the election of directors or managing general 





partners or the equivalent; or (b) to direct or cause the direction of
the management and policies of such person whether by contract or otherwise. 


                    “Agent-Related
Persons” means Administrative Agent, together with its Affiliates
(including Arranger), and the officers, directors, employees, agents and
attorneys-in-fact of such persons and Affiliates. 


                    “Aggregate
Commitments” means the Commitments of all Lenders. 


                    “Agreement”
has the meaning set forth in the introductory paragraph of this Agreement, and
includes all exhibits attached hereto and referenced in Section 1.1. 


                    “Appraised
Value” means the value shown on the appraisal of the Property delivered to
Administrative Agent prior to the date hereof. 


                    “Arranger”
means Banc of America Securities LLC, in its capacity as sole arranger and sole
book manager. 


                    “Assignment
and Assumption” means an Assignment and Assumption substantially in the
form of Exhibit “L”. 


                    “Base
Rate” means, on any day, a simple rate per annum equal to the sum of the
Prime Rate for that day plus the Base Rate Margin. Without notice to Borrower
or anyone else, the Base Rate shall automatically fluctuate upward and downward
as and in the amount by which the Prime Rate fluctuates. 


                    “Base
Rate Margin” means (x) 1.9% per annum with respect to the Initial Advance
and the Initial Advance Notes and (y) 2.3% per annum with respect to the Future
Advance and the Future Advance Note. 


                    “Base
Rate Principal” means, at any time, the Principal Debt minus the portion,
if any, of such Principal Debt which is LIBOR Rate Principal. 


                    “BBA
LIBOR” has the meaning set forth in Section 1.7.1. 


                    “BBA
LIBOR Daily Floating Rate” has the meaning set forth in Section 1.7.1. 


                    “Borrower”
has the meaning set forth in the introductory paragraph of this Agreement. 


                    “Business
Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where Administrative Agent’s Office is located. 


                    “Closing
Checklist” means that certain Closing Requirements and Checklist setting
forth the conditions for closing the Loan and recording the Mortgage. 


                    “Code”
has the meaning set forth in Section 2.15. 


2





                    “Commitment”
means, as to each Lender, its obligation to advance its Pro Rata Share of the
Loan in an aggregate principal amount not exceeding the amount set forth
opposite such Lender’s name on the Schedule of Lenders at any one time
outstanding, as such amount may be adjusted from time to time in accordance
with this Agreement. 


                    “Debt”
means, with respect to any Person, without duplication, (a) all indebtedness of
such Person for borrowed money, (b) all obligations of such Person for the
deferred purchase price of property or services, (c) all obligations of such
Person evidenced by notes, bonds, debentures or other similar instruments, (d)
all obligations of such Person created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such
Person (even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
property), (e) all obligations of such Person as lessee under capital leases,
(f) all obligations, contingent or otherwise, of such Person under acceptance,
letter of credit or similar facilities, (g) all obligations of such Person to
purchase, redeem, retire, defease or otherwise make any payment in respect of
any capital stock of or other ownership or profit interest in such Person or
any other Person or any warrants, rights or options to acquire such capital
stock, (h) all obligations of such Person in respect of interest rate hedge
agreements, (i) all debt of others referred to in clauses (a) through (h) above
or clause (j) below guaranteed directly or indirectly in any manner by such
Person, or in effect guaranteed directly or indirectly by such Person through
an agreement (i) to pay or purchase such debt or to fund or supply monies for
the payment or purchase of such debt, (ii) to purchase, sell or lease (as
lessee or lessor) property, or to purchase or sell services, primarily for the
purpose of enabling the debtor to make payment of such debt or to assure the
holder of such debt against loss, (iii) to supply funds to or in any other
manner invest in the debtor (including any agreement to pay for property or
services irrespective of whether such property is received or such services are
rendered) or (iv) otherwise to assure a creditor against loss, and (j) all debt
referred to in clauses (a) through (h) above of another Person secured by (or
for which the holder of such debt has an existing right, contingent or
otherwise, to be secured by) any lien on property (including, without
limitation, accounts, contract rights or inventory) owned by such Person, even
though such Person has not assumed or become liable for the payment of such
debt. 


                    “Debt
Service Coverage Ratio” means the ratio, as of any date of calculation, of
(a) the Adjusted Net Operating Income to (b) the annual Debt Service Payments. 


                    “Debt
Service Payments” means the annual amount of principal and interest
payments that would be payable on the Loan based upon a thirty (30) year self
liquidating mortgage amortization schedule at an annual assumed interest rate
equal to the greatest of (i) 7.5%, (ii) the “Ten Year Treasury Rate Obligation”
(as hereinafter defined) as of any date of calculation plus 2.5% and (iii) the
highest of the actual interest rates applicable to the Loan as of any date of
calculation. The “Ten Year Treasury Rate Obligation” shall mean the rate
determined by Administrative Agent to be the week ending yield on United States
treasury securities, adjusted to a constant maturity of ten years, as published
by the United States Federal Reserve Board in the then most currently available
Statistical Release H.15 (519) (or, if not published at such time, such other
comparable statistical release then published by the United States Federal
Reserve Board) rounded to the next highest 1/8 of 1%. 


3





                    “Debtor
Relief Laws” means the Bankruptcy Code of the United States of America, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights
of creditors generally. 


                    “Default”
has the meaning set forth in Section 4.1 of this Agreement. 


                    “Defaulting
Lender” means a Lender that fails to pay its Pro Rata Share of a Payment
Amount within five (5) Business Days after notice from Administrative Agent,
until such Lender cures such failure as permitted in this Agreement. 


                    “Defaulting
Lender Amount” means the Defaulting Lender’s Pro Rata Share of a Payment
Amount. 


                    “Defaulting
Lender Payment Amounts” means a Defaulting Lender Amount plus interest from
the date such Defaulting Lender Amount was funded by Administrative Agent
and/or an Electing Lender, as applicable, to the date such amount is repaid to
Administrative Agent and/or such Electing Lender, as applicable, at the rate
per annum applicable to such Defaulting Lender Amount under the Loan or
otherwise at the Base Rate. 


                    “Draw
Request” has the meaning set forth in Section 1 of Exhibit “F”. 


                    “Eligible
Assignee” has the meaning set forth in Section 6.5. 


                    “Environmental
Agreement” means the Environmental Indemnity Agreement of even date
herewith by and among Borrower, Guarantor and Administrative Agent for the
benefit of Lenders. 


                    “Excusable
Delay” means a delay, not to exceed a total of thirty (30) days, caused by
unusually adverse weather conditions which have not been taken into account in
the construction schedule, fire, earthquake or other acts of God, strikes,
lockouts, acts of public enemy, riots or insurrections or any other unforeseen
circumstances or events beyond the control of Borrower (except financial
circumstances or events or matters which may be resolved by the payment of
money), and as to which Borrower notifies Administrative Agent in writing
within five (5) days after such occurrence; provided, however, no Excusable
Delay shall extend the Maturity Date or suspend or abate any obligation of
Borrower or any Guarantor or any other person to pay any money. 


                    “Federal
Funds Rate” means, for any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank on the Business Day next succeeding such
day; provided that (a) if such day is not a Business Day, the Federal Funds
Rate for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate (rounded upwards to the next
higher 1/100 of 


4





1%) charged to Bank of America on such day on such transactions as determined
by Administrative Agent. 


                    “Financial
Statements” means (i) for each reporting party other than an individual, a
balance sheet, income statement, statements of cash flow and amounts and
sources of contingent liabilities, a reconciliation of changes in equity and
liquidity verification, and unless Administrative Agent otherwise consents,
consolidated statements if the reporting party is a holding company or a parent
of a subsidiary entity; and (ii) for each reporting party who is an individual,
a balance sheet, statements of amount and sources of contingent liabilities,
sources and uses of cash and liquidity verification and, unless Administrative
Agent otherwise consents, Financial Statements for each entity owned or jointly
owned by the reporting party. For purposes of this definition and any covenant
requiring the delivery of Financial Statements, each party for whom Financial
Statements are required is a “reporting party” and a specified period to which
the required Financial Statements relate is a “reporting period”. 


                    “Funding
Date” means the date on which an advance of Loan proceeds shall occur. 


                    “Future
Advance Amount” means an amount equal to the least of (x) $25,000,000, (y)
the Syndication Increase Amount (which shall be deemed to be zero if no
Syndication Increase Amount has been determined pursuant to Section 1.4) and
(z) the maximum amount, as determined by Administrative Agent, which, when
added to the Initial Advance Amount portion of the Principal Debt, would not result in a breach of the Loan to Value Ratio covenant in Section 2.5(a) or a
breach of the Debt Service Coverage Ratio in Section 2.5(b), provided,  however,
that (i) the amount set forth in clause (x) above shall be reduced monthly as
set forth in Section 1.12, (ii) Borrower may further reduce the Future Advance
Amount by specifying the amount of such reduction in a notice from Borrower to
Lender given prior to the completion of a Successful Syndication and (iii) upon
Lenders making the Future Advance to Borrower, the Future Advance Amount shall
not be further adjusted.  


                    “Future
Advance Determination Date” means either (i) if a Successful Syndication
occurs on or before the thirty (30) month anniversary of the date hereof, the
date upon which the Future Advance is funded or (ii) if a Successful
Syndication does not occur on or before the thirty (30) month anniversary of
the date hereof, the date which is thirty (30) months after the date hereof. 


                    “Future
Advance Mortgage” means a Mortgage, Assignment and Security Agreement in
the amount of the Future Advance Amount from Borrower to Administrative Agent
in substantially the same form as the Initial Advance Mortgage, to be executed
and delivered as a condition to the Future Advance, securing repayment of the
Indebtedness (excluding the Initial Advance) and Borrower’s performance of its
other obligations to Administrative Agent and Lenders under the Loan Documents,
as amended, modified, supplemented, restated and replaced from time to time. 


                    “Future
Advance Notes” means the Loan Notes in the aggregate amount of the Future
Advance Amount each executed by Borrower and payable to the order of each
Lender in 


5





the amount of each Lender’s Pro Rata Share of the Future Advance,
substantially in the form of Exhibit “M” as amended, modified, replaced,
restated, extended or renewed from time to time. 


                    “Future
Advance” means the portion of the Loan in the amount of up to the Future
Advance Amount to be advanced, subject to the terms and conditions hereof,
subsequent to the Initial Advance. 


                    “Guarantor”
means Acadia Strategic Opportunity Fund III LLC, a Delaware limited liability
company, whether one or more, and if more than one, each one individually or
all collectively. 


                    “Improvements”
means all buildings and other improvements constructed on the Land, together
with all fixtures, tenant improvements, and appurtenances now or later to be
located on the Land and/or in such improvements. 


                    “Indebtedness”
means any and all indebtedness to Administrative Agent or Lenders evidenced,
governed or secured by, or arising under, any of the Loan Documents, including
the Loan. 


                    “Indemnified
Liabilities” has the meaning set forth in Section 6.1. 


                    “Initial
Advance” means the advance of a portion of the Loan in the amount of the
Initial Advance Amount on or about the date hereof. 


                    “Initial
Advance Amount” means $50,000,000. 


                    “Initial
Advance Mortgage” means the mortgages described in, and consolidated and
modified by, that certain Mortgage Consolidation and Modification Agreement
dated as of the date hereof in the amount of the Initial Advance Amount from
Borrower to Administrative Agent, securing repayment of the Indebtedness
(excluding the Future Advances) and Borrower’s performance of its other
obligations to Administrative Agent and Lenders under the Loan Documents, as
amended, modified, supplemented, restated and replaced from time to time. 


                    “Initial
Advance Notes” means the Loan Notes in the aggregate amount of the Initial
Advance Amount each dated as of the date hereof executed by Borrower and
payable to the order of each Lender in the amount of each Lender’s Pro Rata
Share of the Initial Advance, substantially in the form of Exhibit “M” as
amended, modified, replaced, restated, extended or renewed from time to time. 


                    “Land”
means the real property described in Exhibit “A”. 


                    “Laws”
means all constitutions, treaties, statutes, laws, ordinances, regulations,
rules, orders, writs, injunctions, or decrees of the United States of America,
any state or commonwealth, any municipality, any foreign country, any territory
or possession, or any Tribunal. 


                    “Leasing
Commissions” means any commissions payable by Borrower in connection with
any leases of space in the Improvements executed after the date hereof and/or 


6





extensions or renewals of existing leases of space in the Improvements
not to exceed such commissions as are reasonable and customary for properties
in Westchester County, New York similar to the Property as determined by
Administrative Agent. 


                    “Lender”
means each lender from time to time party to this Agreement. 


                    “Lending
Office” means, as to any Lender, the office or offices of such Lender
described as such on the Schedule of Lenders, or such other office or offices
as such Lender may from time to time notify Borrower and Administrative Agent. 


                    “LIBOR
Business Day” means a Business Day which is also a London Banking Day. 


                    “LIBOR
Margin” means (x) 1.9% per annum with respect to the Initial Advance and
the Initial Advance Notes and (y) 2.3% with respect to the Future Advance and
the Future Advance Notes. 


                    “LIBOR
Rate Principal” means any portion of the Principal Debt which bears
interest at an applicable BBA LIBOR Daily Floating Rate at the time in
question. 


                    “Lien
Law “ means the Lien Law of the State of New York. 


                    “Loan”
means the loan by Lenders to Borrower, in the maximum amount of the Loan
Amount. 


                    “Loan
Amount” means the sum of (x) the Initial Advance Amount plus (y) upon the
completion of a Successful Syndication only, the Future Advance Amount. 


                    “Loan
Documents” means this Agreement (including all exhibits), the Mortgage, any
Note, the Environmental Agreement, any guaranty, financing statements and such
other documents evidencing, securing or pertaining to the Loan as shall, from
time to time, be executed and/or delivered by Borrower, Guarantor, or any other
party to Administrative Agent or any Lender pursuant to this Agreement, as they
may be amended, modified, restated, replaced and supplemented from time to
time. 


                    “Loan
to Value Ratio” is defined in Section 2.5. 


                    “London
Banking Day” means a day on which dealings in dollar deposits are conducted
by and between banks in the London interbank eurodollar market. 


                    “Lump
Sum Amortization Payment” has the meaning set forth in Section 1.4. 


                    “Material
Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the Project, or the operations, business, properties,
liabilities (actual or contingent), condition (financial or otherwise) or
prospects of Borrower or Borrower and its Subsidiaries taken as a whole; (b) a
material impairment of the ability of any party to the Loan Documents to
perform its obligations under any Loan Document to which it is a party; or (c)
a 


7





material adverse effect upon the legality, validity, binding effect or
enforceability against any party to the Loan Documents of any Loan Document to
which it is a party. 


                    “Material
Contract” means any contract for the performance of any work or the
supplying of any labor, materials or services which exceeds $100,000 per annum.



                    “Maturity
Date” means October 26, 2015, as it may be earlier terminated or extended
in accordance with the terms hereof. 


                    “Maximum
Loan to Value” means (x) for purposes of determining the Future Advance
Amount and at all times after the Future Advance has been made, 70% and (y) at
all other times, 60%. 


                    “Minimum
DSCR” means (x) for purposes of determining the Future Advance Amount and
at all times after the Future Advance has been made, 1.30 to 1.00 and (y) at
all other times, 1.50 to 1.00. 


                    “Mortgage”
means, collectively, the Initial Advance Mortgage and the Future Advance
Mortgage, securing repayment of the Indebtedness and Borrower’s performance of
its other obligations to Administrative Agent and Lenders under the Loan
Documents, as amended, modified, supplemented, restated and replaced from time
to time. 


                    “Notes”
means, collectively, the Initial Advance Notes and the Future Advance Notes in
the maximum principal amount of the Loan, substantially in the form of Exhibit
“M” as amended, modified, replaced, restated, extended or renewed from time to
time. 


                    “Obligations”
means all liabilities, obligations, covenants and duties (including, without
limitation, paying all Additional Interest) of, any party to a Loan Document
arising under or otherwise with respect to any Loan Document, whether direct or
indirect (including those acquired by assumption), absolute or contingent, due
or to become due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against any party to a Loan
Document or any Affiliate thereof of any proceeding under any Debtor Relief
Laws naming such person as the debtor in such proceeding, regardless of whether
such interest and fees are allowed claims in such proceedings. 


                    “Operating
Income” means the sum of (x) the aggregate rentals and all other revenue
(unless excluded pursuant hereto) of the Property actually received from only
executed bona fide leases, licenses and other occupancy agreements of the
Property which are in full force and effect as to which the tenant thereunder
is not the subject of any bankruptcy proceeding and is not in default under its
lease, beyond any applicable notice or cure periods set forth therein for the
six (6) months preceding the date of calculation and (y) the aggregate rentals
and all other revenue (unless excluded pursuant hereto) of the Property as
projected by Borrower and approved by Administrative Agent from only executed
bona fide leases, licenses and other occupancy agreements of the Property which
are in full force and effect as to which the tenant thereunder is not the
subject of any bankruptcy proceeding and is not in default under its lease
(including tenants who have not commenced payment of full base rent but who are
obligated to do so within six (6) months), beyond any applicable notice or cure
periods set forth therein for the six (6) months following the date of
calculation as projected by Administrative Agent. 


8





Operating Income shall exclude all extraordinary items of income, all
amounts paid to Borrower for tenant alterations in connection with the leasing
of space at the Property, all amounts payable to Borrower under leases with
affiliates of Borrower, as tenant, or with Borrower, as tenant (unless
Administrative Agent otherwise agrees) and, with respect to any lease providing
for a reduction in the rentals payable under such lease at any time during the
term thereof, base rentals in excess of the lowest base rentals payable under
such lease (other than during any period of rent concessions made with respect
to consecutive monthly periods commencing with the first month of the term of
such lease), but notwithstanding the preceding, including reimbursements for
operating expenses and percentage rent pursuant to executed leases, provided a
sales report is provided by the applicable tenant. 


                    “Past
Due Rate” has the meaning set forth in Section 1.7.2. 


                    “Payment
Amount” means an advance of the Loan, an unreimbursed Administrative Agent
Advance, an unreimbursed Indemnified Liability or any other amount that a
Lender is required to fund under this Agreement.  


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


                    “Potential
Default” means any condition or event which with the giving of notice or
lapse of time or both would, unless cured or waived, become a Default. 


                    “Prime
Rate” means, on any day, the rate of interest per annum then most recently
established by Administrative Agent as its “prime rate”, it being understood
and agreed that such rate is set by Administrative Agent as a general reference
rate of interest, taking into account such factors as Administrative Agent may
deem appropriate, that it is not necessarily the lowest or best rate actually
charged to any customer or a favored rate, that it may not correspond with
future increases or decreases in interest rates charged by other lenders or
market rates in general, and that Administrative Agent may make various
business or other loans at rates of interest having no relationship to such
rate. If Administrative Agent (including any subsequent Administrative Agent)
ceases to exist or to establish or publish a prime rate from which the Prime
Rate is then determined, the applicable variable rate from which the Prime Rate
is determined thereafter shall be instead the prime rate reported in The Wall
Street Journal (or the average prime rate if a high and a low prime rate are
therein reported), and the Prime Rate shall change without notice with each
change in such prime rate as of the date such change is reported. 


                    “Principal
Debt” means the aggregate unpaid principal balance of the Loan at the time
in question. 


                    “Pro
Rata Share” means, with respect to each Lender at any time, a fraction
expressed as a percentage, the numerator of which is the amount of the
Commitment of such Lender at such time and the denominator of which is the
amount of the Aggregate Commitments at such time or, if the Aggregate
Commitments have been terminated, a fraction (expressed as a percentage,
carried out to the ninth decimal place), the numerator of which is the total outstanding
amount of all Indebtedness held by such Lender at such time and the denominator
of 


9





which is the total outstanding amount of all Indebtedness at such time.
The initial Pro Rata Share of each Lender named on the signature pages hereto
is set forth opposite the name of that Lender on the Schedule of Lenders. 


                    “Project”
means the acquisition of the Land and the Improvements, and if applicable, the
leasing and operation of the Improvements. 


                    “Property”
means the Land, the Improvements and all other property constituting the
“Mortgage Property”, as described in the Mortgage, or subject to a right, lien
or security interest to secure the Loan pursuant to any other Loan Document. 


                    “Rating
Agencies means Standard & Poor’s Ratings Services, a Division of The
McGraw-Hill Companies, Inc. (“S&P”), Moody’s Investors Service, Inc.
(“Moody’s”) and Fitch Inc. (“Fitch”). 


                    “Required
Lenders” means as of any date of determination at least two Lenders having
more than 50% of the Aggregate Commitments or, if the Aggregate Commitments
have been terminated, at least two Lenders holding in the aggregate more than
50% of the total outstanding amount of all Indebtedness; provided that the Commitment
of, and the portion of the total outstanding amount of all Indebtedness held
by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders. 


                    “Schedule
of Lenders” means the schedule of Lenders party to this Agreement as set
forth on Exhibit “N”, as it may be modified from time to time in accordance
with this Agreement. 


                    “Subsidiary”
means a corporation, partnership, joint venture, limited liability company or
other business entity of which a majority of the shares of securities or other
interests having ordinary voting power for the election of directors or other
governing body (other than securities or interests having such power only by
reason of the happening of a contingency) are at the time beneficially owned,
or the management of which is otherwise controlled, directly, or indirectly
through one or more intermediaries. 


                    “Successful
Syndication” has the meaning set forth in Section 1.4. 


                    “Survey”
means a survey prepared in accordance with Exhibit “G” or as otherwise approved
by Administrative Agent in its sole discretion. 


                    “Swap
Contract” means any agreement, whether or not in writing, relating to any
Swap Transaction, including, unless the context otherwise clearly requires, any
form of master agreement (the “Master Agreement”) published by the
International Swaps and Derivatives Association, Inc., or any other master
agreement, entered into prior to the date hereof or any time after the date
hereof, between Swap Counterparty and Borrower (or its Affiliate), together
with any related schedule and confirmation, as amended, supplemented,
superseded or replaced from time to time. 


                    “Swap
Counterparty” means Lender or its Affiliate, in its capacity as
counterparty under any Swap Contract. 


10





                    “Swap
Transaction” means any transaction that is a rate swap, basis swap, forward
rate transaction, commodity swap, commodity option, equity or equity index swap
or option, bond option, note or bill option, interest rate option, forward
foreign exchange transaction, cap transaction, collar transaction, floor
transaction, currency swap transaction, cross-currency rate swap transaction,
swap option, currency option, credit swap or default transaction, T-lock, or
any other similar transaction (including any option to enter into the
foregoing) or any combination of the foregoing, entered into prior to the date
hereof or anytime after the date hereof between Swap Counterparty and Borrower
(or its Affiliate) so long as a writing, such as a Swap Contract, evidences the
parties’ intent that such obligations shall be secured by the Mortgage. 


                    “Syndication
Increase Amount” has the meaning set forth in Section 1.4. 


                    “Taxes”
has the meaning set forth in Section 1.11. 


                    “Title
Company” means First American Title Insurance Company of New York as lead
co-insurer and Commonwealth Land Title Insurance Company as co-insurer. 


                    “Title
Insurance” means the loan policy or policies of title insurance issued to
Administrative Agent for the benefit of Lenders by the Title Company, in an
amount equal to the maximum principal amount of the Loan, insuring the validity
and priority of the Mortgage encumbering the Land and Improvements for the
benefit of Administrative Agent and Lenders. 


                    “Tribunal”
means any state, commonwealth, federal, foreign, territorial or other court or
governmental department, commission, board, bureau, district, authority,
agency, central bank, or instrumentality, or any arbitration authority. 


                    “Unused
Fee” has the meaning set forth in Section 2.12. 


                    “Vacancy
and Credit Loss Factor” means an amount (which amount can be $0 but cannot
be less than $0) determined by multiplying Operating Income by the lesser of
(i) 6% or (ii) the amount, stated as a percentage of total rentable retail
area, by which total rented retail area at the time of calculation exceeds 94%
of total rentable retail area. 


                    2.
Financial Statements: 


                    Borrower
shall provide or cause to be provided to Administrative Agent with a copy for
each Lender all of the following: 


	
  
 	
  
 
	
  
 	
           (a)
 Financial Statements of Borrower: (i) for each fiscal year of such reporting
 party, as soon as reasonably practicable and in any event within one hundred
 twenty (120) days after the close of each fiscal year; and (ii) for each
 fiscal quarter of such reporting party, as soon as reasonably practicable and
 in any event within one hundred twenty (120) days after the close of each
 fiscal quarter. 
 
	
  
 	
  
 
	
  
 	
           (b)
 Financial Statements of each Guarantor: (i) for each fiscal year of such
 Guarantor, as soon as reasonably practicable and in any event within one
 hundred twenty (120) days after the close of each fiscal year, and for Acadia
 Realty Trust, as soon as 
 


11









	
  
 	
  
 
	
  
 	
 reasonably practicable and in any event within one hundred twenty
 (120) days after the close of each such reporting period; or (ii) for each
 fiscal quarter of such Guarantor, as soon as reasonably practicable and in
 any event within one hundred twenty (120) days after the close of each fiscal
 quarter, and for Acadia Realty Trust, as soon as reasonably practicable and
 in any event within one hundred twenty (120) days after the close of each
 such reporting period; upon proper filing of the applicable annual form 10K
 and quarterly form 10Q by Guarantor with the Securities and Exchange
 Commission, such statements shall be deemed delivered to Administrative Agent
 and Lenders hereunder.
 
	
  
 	
  
 
	
  
 	
           (c) (i)
 Prior to the beginning of each fiscal year of Borrower, a capital and
 operating budget for the Property and (ii) for each calendar quarter (and for
 the fiscal year through the end of that month) (A) a statement of all income
 and expenses in connection with the Property and (B) a current leasing status
 report (including tenants’ names, occupied tenant space, lease terms, rents,
 vacant space and proposed rents), including in each case a comparison to the
 budget, as soon as reasonably practicable but in any event within fifteen
 (15) days after the end of each such quarter, certified in writing as true
 and correct by a representative of Borrower satisfactory to Administrative
 Agent. Items provided under this paragraph shall be in form and detail
 satisfactory to Administrative Agent. 
 
	
  
 	
  
 
	
  
 	
           (d) At
 the time of submitting, and together with, Borrower’s quarterly financial
 statements, Borrower shall submit a certificate representing and warranting
 that no Default or Potential Default exists, or specifying any and all
 Defaults or Potential Defaults which do exist at the time. At the time of
 submitting, and together with, Guarantor’s quarterly financial statements,
 Guarantor shall submit a detailed certificate of the Available Capital
 Commitments of Guarantor. 
 
	
  
 	
  
 
	
  
 	
           (e) From
 time to time promptly after Administrative Agent’s request, such additional
 information, reports and statements respecting the Property and the
 Improvements, or the business operations and financial condition of each
 reporting party, as Administrative Agent may reasonably request. 
 


All Financial Statements shall be in form and detail satisfactory to
Administrative Agent and shall contain or be attached to the signed and dated
written certification of the reporting party in form specified by
Administrative Agent to certify that the Financial Statements are furnished to
Administrative Agent in connection with the extension of credit by Lenders and
constitute a true and correct statement of the reporting party’s financial
position. All certifications and signatures on behalf of corporations,
partnerships or other entities shall be by a representative of the reporting
party satisfactory to Administrative Agent. All Financial Statements for a
reporting party who is an individual shall be on Administrative Agent’s
then-current personal financial statement form or in another form satisfactory
to Administrative Agent. All fiscal year-end Financial Statements of Borrower,
Guarantor and Acadia Realty Trust shall be audited and certified, without any
qualification or exception not acceptable to Administrative Agent, by
independent certified public accountants acceptable to Administrative Agent,
and shall contain all reports and disclosures required by generally accepted
accounting principles for a fair presentation. All quarterly Financial
Statements shall be compiled or reviewed by independent 


12 





certified public accountants acceptable to Administrative Agent, or may
be prepared by the reporting party. 


13





EXHIBIT “C”


CONDITIONS PRECEDENT TO THE INITIAL ADVANCE


                    As
conditions precedent to the Initial Advance, if and to the extent required by
Administrative Agent, Administrative Agent shall have received and approved the
following: 


                    1.
Fees and Expenses. Any and all required commitment and other fees, and
evidence satisfactory to Administrative Agent that Borrower has paid all other
fees, costs and expenses (including the fees and costs of Administrative
Agent’s counsel) then required to be paid pursuant to this Agreement and all
other Loan Documents, including, without limitation, all fees, costs and
expenses that Borrower is required to pay pursuant to any loan application or
commitment.


                    2.
Financial Statements. The Financial Statements of Borrower and Guarantor
or any other party required by any loan application or commitment or otherwise
required by Administrative Agent.


                    3.
Appraisal. A market value appraisal of the Property made within one
hundred eighty (180) days prior to the date of this Agreement, which appraises
the Property on a “completed value” basis at not less than the Appraised Value.
The appraiser and appraisal must be satisfactory to Administrative Agent
(including satisfaction of applicable regulatory requirements) and the
appraiser must be engaged directly by Administrative Agent.


                    4.
Authorization. Evidence Administrative Agent requires of the existence,
good standing, authority and capacity of Borrower, each Guarantor, and their
respective constituent partners, members, managers and owners (however remote)
to execute, deliver and perform their respective obligations to Administrative
Agent and Lenders under the Loan Documents, including: 


	
  
 	
  
 
	
  
 	
           (a) For
 each partnership (including a joint venture or limited partnership): (i) a
 true and complete copy of an executed partnership agreement or limited
 partnership agreement, and all amendments thereto; (ii) for each limited
 partnership, a copy of the certificate of limited partnership and all
 amendments thereto accompanied by a certificate issued by the appropriate
 governmental official of the jurisdiction of formation that the copy is true
 and complete, and evidence Administrative Agent requires of registration or
 qualification to do business in the state where Borrower’s principal place of
 business is located and the state where the Project is located, and (iii) a
 partnership affidavit certifying who will be authorized to execute or attest
 any of the Loan Documents, and a true and complete copy of the partnership
 resolutions approving the Loan Documents and authorizing the transactions
 contemplated in this Agreement and the other Loan Documents. 
 
	
  
 	
  
 
	
  
 	
           (b) For
 each corporation: (i) a true and complete copy of its articles of
 incorporation and by-laws, and all amendments thereto, a certificate of
 incumbency of all of its officers who are authorized to execute or attest to
 any of the Loan Documents, and 
 













	
  
 	
  
 
	
  
 	
 a true and complete copy of resolutions approving the Loan Documents
 and authorizing the transactions contemplated in this Agreement and the other
 Loan Documents; and (ii) certificates of existence, good standing and
 qualification to do business issued by the appropriate governmental officials
 in the state of its formation and, if different, the state in which the
 Project is located. 
 
	
  
 	
  
 
	
  
 	
           (c) For
 each limited liability company or limited liability partnership: (i) a true
 and complete copy of the articles of organization and operating agreement,
 and all amendments thereto, a certificate of incumbency of all of its members
 who are authorized to execute or attest to any of the Loan Documents, and a
 true and complete copy of resolutions approving the Loan Documents and
 authorizing the transactions contemplated in this Agreement and the other
 Loan Documents; and (ii) certificates of existence, good standing and
 qualification to do business issued by appropriate governmental officials in
 the state of its formation and, if different, the state in which the Property
 is located. 
 
	
  
 	
  
 
	
  
 	
           (d) For
 each entity or organization that is not a corporation, partnership, limited
 partnership, joint venture, limited liability company or limited liability
 partnership, a copy of each document creating it or governing the existence,
 operation, power or authority of it or its representatives. 
 
	
  
 	
  
 
	
  
 	
           (e) All
 certificates, resolutions, and consents required by Administrative Agent
 applicable to the foregoing. 
 


                    5.
Loan Documents. From Borrower, Guarantor and each other person required
by Administrative Agent, duly executed, acknowledged and/or sworn to as
required, and delivered to Administrative Agent (with a copy for each Lender)
all Loan Documents then required by Administrative Agent, dated the date of
this Agreement, each in form and content satisfactory to Administrative Agent,
and evidence Administrative Agent requires that the Mortgage has been recorded
in the official records of the city or county in which the Property is located
and UCC-1 financing statements have been filed in all filing offices that
Administrative Agent may require. 


                    6.
Opinions. The written opinion of counsel satisfactory to Administrative
Agent for Borrower, each Guarantor, and any other persons or entities addressed
to Administrative Agent for the benefit of Lenders, dated the date of this
Agreement. 


                    7.
Survey; No Special Flood Hazard. (a) two (2) prints of an original
survey (with a copy for each Lender) of the Land and improvements thereon dated
not more than sixty (60) days prior to the date of this Agreement (or dated
such earlier date, if any, as is satisfactory to the Title Company, but in any
event not more than one hundred eighty (180) days prior to the date of this
Agreement) satisfactory to Administrative Agent and the Title Company and
otherwise, to the extent required by Administrative Agent, complying with
Exhibit “G”, and (b) a flood insurance policy (with a copy for each Lender) in
an amount equal to the lesser of the maximum Loan amount or the maximum amount
of flood insurance available under the Flood Disaster Protection Act of 1973,
as amended, and otherwise in compliance with the requirements of the Loan
Documents, or evidence satisfactory to Administrative Agent that none of the
Land is located in a flood hazard area. 


2





                    8.
Title Insurance. An ALTA title insurance policy, issued by the Title
Company (which shall be approved by Administrative Agent) in the maximum amount
of the Loan plus any other amount secured by the Mortgage, on a coinsurance
and/or reinsurance basis if and as required by Administrative Agent, insuring
without exclusion or exception for creditors’ rights that the Mortgage
constitutes a valid lien covering the Land and all Improvements thereon, having
the priority required by Administrative Agent and subject only to those
exceptions and encumbrances (regardless of rank or priority) Administrative
Agent approves, in a form acceptable to Administrative Agent, and with all
“standard” exceptions which can be deleted, including the exception for matters
which a current survey would show, deleted to the fullest extent authorized
under applicable title insurance rules, and Borrower shall satisfy all requirements
therefor permitted; containing no exception for standby fees or real estate
taxes or assessments other than those for the year in which the closing occurs
to the extent the same are not then due and payable and endorsed “not yet due
and payable” and no exception for subsequent assessments for prior years;
providing full coverage against mechanics’ and materialmen’s liens to the
extent authorized under applicable title insurance rules, and Borrower shall
satisfy all requirements therefor; insuring that no restrictive covenants shown
in the Title Insurance have been violated, and that no violation of the
restrictions will result in a reversion or forfeiture of title; insuring all
appurtenant easements; insuring that fee simple indefeasible or marketable (as
coverage is available) fee simple title to the Land and Improvements is vested
in Borrower; containing such affirmative coverage and endorsements (including
the standard New York endorsements) as Administrative Agent may require and are
available under applicable title insurance rules, and Borrower shall satisfy
all requirements therefor; insuring any easements, leasehold estates or other
matters appurtenant to or benefiting the Land and/or the Improvements as part
of the insured estate; insuring the right of access to the Land to the extent
authorized under applicable title insurance rules, and Borrower shall satisfy
all requirements therefor; and containing provisions acceptable to
Administrative Agent regarding advances and/or readvances of Loan funds after
closing. Borrower and Borrower’s counsel shall not have any interest, direct or
indirect, in the Title Company (or its agent) or any portion of the premium
paid for the Title Insurance. The policy shall contain a pending disbursement
clause in Lender’s standard form or such other form approved by Lender. 


                    9.
Insurance Policies. The insurance policies initially required by
Administrative Agent, pursuant to the Loan Documents, together with evidence
satisfactory to Administrative Agent that all premiums therefor have been paid
for a period of not less than one (1) year from the date of this Agreement and
that the policies are in full force and effect. 


                    10.
Leases. If Exhibit “I” is attached hereto, (i) true and correct copies
of all leases and subleases, and guarantees thereof; (ii) estoppel certificates
and subordination and attornment agreements (including nondisturbance
agreements if and to the extent agreed by Administrative Agent in its
discretion), dated within thirty (30) days prior to this Agreement and in the
respective forms attached as exhibits to the Closing Checklist, or otherwise in
form and content satisfactory to Administrative Agent, from the tenants and
subtenants as Administrative Agent requires; (iii) evidence satisfactory to
Administrative Agent of Borrower’s compliance with the leases; and (iv)
evidence satisfactory to Administrative Agent of the tenants’ approval of all
matters requiring their approval. 


3





                    11.
Environmental Compliance/Report. Evidence satisfactory to Administrative
Agent that no portion of the Land is “wetlands” under any applicable Law and
that the Land does not contain and is not within or near any area designated as
a hazardous waste site by any Tribunal, that neither the Property nor any
adjoining property contains or has ever contained any substance classified as
hazardous or toxic (or otherwise regulated, such as, without limitation,
asbestos, radon and/or petroleum products) under any Law or governmental
requirement pertaining to health or the environment, and that neither the
Property nor any use or activity thereon violates or is or could be subject to
any response, remediation, clean-up or other obligation under any Law or
governmental requirement pertaining to health or the environment including
without limitation, a written report of an environmental assessment of the
Property, made within twelve (12) months prior to the date of this Agreement,
by an engineering firm, and of a scope and in form and content satisfactory to
Administrative Agent, complying with Administrative Agent’s established
guidelines, showing that there is no evidence of any such substance which has
been generated, treated, stored, released or disposed of in the Property, and
such additional evidence as may be required by Administrative Agent. All
reports, drafts of reports, and recommendations, whether written or oral, from
such engineering firm shall be made available and communicated to
Administrative Agent. 


                    12.
Laws. (a) Evidence satisfactory to Administrative Agent that all
applicable zoning ordinances, restrictive covenants and governmental
requirements affecting the Property permit the use for which the Property is
intended and have been or will be complied with without the existence of any
variance, non-complying use, nonconforming use or other special exception; (b)
evidence satisfactory to Administrative Agent that the Land and Improvements
comply and will comply with all Laws and governmental requirements regarding
subdivision and platting and would so comply if the Land and the Improvements
thereon were conveyed as a separate parcel; (c) a true and correct copy of
valid certificates of occupancy for the Improvements, together with all other
consents, licenses, permits and approvals necessary for operation of the
Improvements, all in assignable form (to the extent appropriate) and in full
force and effect; (d) evidence satisfactory to Administrative Agent of
compliance by Borrower and the Property, use and occupancy of the Improvements,
with such other applicable Laws and governmental requirements as Administrative
Agent may request, including all Laws and governmental requirements regarding
access and facilities for handicapped or disabled persons including, without
limitation and to the extent applicable, The Federal Architectural Barriers Act
(42 U.S.C. § 4151 et seq.), The Fair Housing Amendments Act of
1988 (42 U.S.C. § 3601 et seq.), The Americans With Disabilities
Act of 1990 (42 U.S.C. § 12101 et seq.), The Rehabilitation Act of 1973 (29
U.S.C. § 794), and any applicable state requirements; and (e) written evidence
satisfactory to Administrative Agent that construction of the Improvements on
the Land is permissible under all federal, state and local statutes,
regulations and rulings protecting tidal and non-tidal wetlands and other
environmentally protected areas. 


                    13.
Priority. (a) evidence satisfactory to Administrative Agent that prior
to and as of the time the Mortgage was filed for record no mechanic’s or
materialman’s lien claim or notice, lis pendens, judgment, or other claim or
encumbrance against the Property has been filed for record in the county where
the Property is located or in any other public record which by Law provides
notice of claims or encumbrances regarding the Property; (b) a certificate or
certificates of a reporting service acceptable to Administrative Agent,
reflecting the results of searches made not earlier than ten (10) days prior to
the date of this Agreement, (i) of the central and local 


4





Uniform Commercial Code records, showing no filings against any of the
collateral for the Loan or against Borrower otherwise except as consented to by
Administrative Agent; and (ii) if required by Administrative Agent, of the
appropriate judgment and tax lien records, showing no outstanding judgment or
tax lien against Borrower or any Guarantor. 


                    14.
Tax and Standby Fee Certificates. Evidence satisfactory to
Administrative Agent (a) of the identity of all taxing authorities and utility
districts (or similar authorities) having jurisdiction over the Property or any
portion thereof; (b) that all taxes, standby fees and any other similar charges
have been paid, including copies of receipts or statements marked “paid” by the
appropriate authority; and (c) that the Land is a separate tax lot or lots with
separate assessment or assessments of the Land and Improvements, independent of
any other land or improvements and that the Land is a separate legally subdivided
parcel. 


                    15.
Other Documents. Such other documents and certificates as Administrative
Agent may reasonably request from Borrower, any Guarantor, and any other person
or entity, in form and content satisfactory to Administrative Agent. 


                    16.
Borrower Identification Due Diligence. Administrative Agent and each
Lender shall have received all due diligence materials they deem necessary with
respect to verifying Borrower’s identity and background information in a manner
satisfactory to each of them. 


5





EXHIBIT “C-1”


CONDITIONS PRECEDENT TO THE FUTURE ADVANCE


Lenders and Administrative Agent have agreed
that the Future Advance Mortgage does not need to be executed, delivered and
recorded by Borrower to Administrative Agent until a Successful Syndication has
occurred. The following are conditions precedent to the Future
Advance:


	
  
 	
  
 
	
 (a)
 	
 Lenders shall not be obligated to make the Future Advance, unless
 prior thereto (i) the Future Advance Mortgage shall have been delivered to
 the Title Company for recording with the Office of the Westchester County
 Clerk and all mortgage recording taxes and fees, Title Insurance premiums and
 charges shall have been duly paid by Borrower and the Title Company shall
 have issued for the benefit of Administrative Agent a Title Insurance policy
 insuring the Future Advance Mortgage, which policy shall be in the same form
 as the Title Insurance policy insuring the Initial Advance Mortgage, with the
 Initial Advance Mortgage as a permitted title exception and only such other
 exceptions as Administrative Agent approves, (ii) Borrower shall have
 executed such Future Advance Notes, in the aggregate amount of the Future
 Advance Amount, as Administrative Agent shall reasonably require, (iii)
 Administrative Agent shall have received (1) an opinion of counsel to such
 effects as are reasonably required by Administrative Agent with respect to
 the Future Advance, the Future Advance Notes, the Future Advance Mortgage and
 such other documents as executed by Borrower and/or Guarantor as Administrative
 Agent shall reasonably require, (2) resolutions, consents or authorizations
 from Borrower with respect to the Future Advance, which shall be reasonably
 satisfactory in form and substance to Administrative Agent, (3) a
 reaffirmation and modification by Guarantor of its obligations under those of
 the Loan Documents to which it is a party, which shall be reasonably
 satisfactory in form and substance to Administrative Agent and (4) such
 additional documents or instruments as are reasonably requested by Administrative
 Agent in connection with the Future Advance and (iv) Borrower shall have paid
 all of Administrative Agent’s costs and expenses in connection with the
 Future Advance, including, without limitation, reasonable attorney’s fees and
 expenses;
 
	
  
 	
  
 
	
 (b)
 	
 if and to the extent required by Administrative Agent, Administrative
 Agent shall have received and approved the items under Exhibit “C” and
 Exhibit “F”; and
 
	
  
 	
  
 
	
 (c)
 	
 a Successful Syndication shall have occurred on or before the date
 which is thirty (30) months from the date hereof.
 









EXHIBIT “D”


MONTHLY AMORTIZATION SCHEDULE


	
  
 	
  
 	
  
 	
  
 	
  
 
	
 Loan summary
 
	

 
 
	
 Loan
 amount
 	
  
 	
 $
 	
 75,000,000.00
 	
  
 
	
 Annual
 interest rate
 	
  
 	
  
 	
 7.5
 	
 %
 
	
 Loan
 period in years
 	
  
 	
  
 	
 30
 	
  
 
	
 Number
 of payments per year
 	
  
 	
  
 	
 12
 	
  
 
	
 Start
 date of loan
 	
  
 	
  
 	
 10/26/2010
 	
  
 






	
  
 	
  
 	
  
 	
  
 	
  
 	
  
 	
  
 	
  
 	
  
 	
  
 
	
 Principal 

 Payment

 Number
 	
  
 	
 Principal

 Payment

 Date
 	
  
 	
 Beginning

 Balance
 	
  
 	
 Principal

 Payment
 	
  
 
	
  
 	
  
 	
  
 	
  
 	
  
 	
  
 	
  
 	
  
 	
  
 	
  
 
	
 1
 	
  
 	
 12/1/2010
 	
  
 	
 $
 	
 75,000,000.00
 	
  
 	
 $
 	
 55,660.88
 
 	
  
 
	
 2
 	
  
 	
 1/1/2011
 	
  
 	
  
 	
 74,944,339.12
 	
  
 	
  
 	
 56,008.76
 
 	
  
 
	
 3
 	
  
 	
 2/1/2011
 	
  
 	
  
 	
 74,888,330.36
 	
  
 	
  
 	
 56,358.82
 
 	
  
 
	
 4
 	
  
 	
 3/1/2011
 	
  
 	
  
 	
 74,831,971.54
 	
  
 	
  
 	
 56,711.06
 
 	
  
 
	
 5
 	
  
 	
 4/1/2011
 	
  
 	
  
 	
 74,775,260.48
 	
  
 	
  
 	
 57,065.50
 
 	
  
 
	
 6
 	
  
 	
 5/1/2011
 	
  
 	
  
 	
 74,718,194.98
 	
  
 	
  
 	
 57,422.16
 
 	
  
 
	
 7
 	
  
 	
 6/1/2011
 	
  
 	
  
 	
 74,660,772.81
 	
  
 	
  
 	
 57,781.05
 
 	
  
 
	
 8
 	
  
 	
 7/1/2011
 	
  
 	
  
 	
 74,602,991.76
 	
  
 	
  
 	
 58,142.18
 
 	
  
 
	
 9
 	
  
 	
 8/1/2011
 	
  
 	
  
 	
 74,544,849.58
 	
  
 	
  
 	
 58,505.57
 
 	
  
 
	
 10
 	
  
 	
 9/1/2011
 	
  
 	
  
 	
 74,486,344.01
 	
  
 	
  
 	
 58,871.23
 
 	
  
 
	
 11
 	
  
 	
 10/1/2011
 	
  
 	
  
 	
 74,427,472.78
 	
  
 	
  
 	
 59,239.18
 
 	
  
 
	
 12
 	
  
 	
 11/1/2011
 	
  
 	
  
 	
 74,368,233.60
 	
  
 	
  
 	
 59,609.42
 
 	
  
 
	
 13
 	
  
 	
 12/1/2011
 	
  
 	
  
 	
 74,308,624.18
 	
  
 	
  
 	
 59,981.98
 
 	
  
 
	
 14
 	
  
 	
 1/1/2012
 	
  
 	
  
 	
 74,248,642.20
 	
  
 	
  
 	
 60,356.87
 
 	
  
 
	
 15
 	
  
 	
 2/1/2012
 	
  
 	
  
 	
 74,188,285.33
 	
  
 	
  
 	
 60,734.10
 
 	
  
 
	
 16
 	
  
 	
 3/1/2012
 	
  
 	
  
 	
 74,127,551.23
 	
  
 	
  
 	
 61,113.69
 
 	
  
 
	
 17
 	
  
 	
 4/1/2012
 	
  
 	
  
 	
 74,066,437.55
 	
  
 	
  
 	
 61,495.65
 
 	
  
 
	
 18
 	
  
 	
 5/1/2012
 	
  
 	
  
 	
 74,004,941.90
 	
  
 	
  
 	
 61,879.99
 
 	
  
 
	
 19
 	
  
 	
 6/1/2012
 	
  
 	
  
 	
 73,943,061.91
 	
  
 	
  
 	
 62,266.74
 
 	
  
 
	
 20
 	
  
 	
 7/1/2012
 	
  
 	
  
 	
 73,880,795.16
 	
  
 	
  
 	
 62,655.91
 
 	
  
 
	
 21
 	
  
 	
 8/1/2012
 	
  
 	
  
 	
 73,818,139.25
 	
  
 	
  
 	
 63,047.51
 
 	
  
 
	
 22
 	
  
 	
 9/1/2012
 	
  
 	
  
 	
 73,755,091.74
 	
  
 	
  
 	
 63,441.56
 
 	
  
 
	
 23
 	
  
 	
 10/1/2012
 	
  
 	
  
 	
 73,691,650.18
 	
  
 	
  
 	
 63,838.07
 
 	
  
 
	
 24
 	
  
 	
 11/1/2012
 	
  
 	
  
 	
 73,627,812.11
 	
  
 	
  
 	
 64,237.06
 
 	
  
 
	
 25
 	
  
 	
 12/1/2012
 	
  
 	
  
 	
 73,563,575.06
 	
  
 	
  
 	
 64,638.54
 
 	
  
 
	
 26
 	
  
 	
 1/1/2013
 	
  
 	
  
 	
 73,498,936.52
 	
  
 	
  
 	
 65,042.53
 
 	
  
 
	
 27
 	
  
 	
 2/1/2013
 	
  
 	
  
 	
 73,433,893.99
 	
  
 	
  
 	
 65,449.04
 
 	
  
 
	
 28
 	
  
 	
 3/1/2013
 	
  
 	
  
 	
 73,368,444.95
 	
  
 	
  
 	
 65,858.10
 
 	
  
 
	
 29
 	
  
 	
 4/1/2013
 	
  
 	
  
 	
 73,302,586.85
 	
  
 	
  
 	
 66,269.71
 
 	
  
 
	
 30
 	
  
 	
 5/1/2013
 	
  
 	
  
 	
 73,236,317.13
 	
  
 	
  
 	
 66,683.90
 
 	
  
 
	
 31
 	
  
 	
 6/1/2013
 	
  
 	
  
 	
 73,169,633.23
 	
  
 	
  
 	
 67,100.67
 
 	
  
 
	
 32
 	
  
 	
 7/1/2013
 	
  
 	
  
 	
 73,102,532.56
 	
  
 	
  
 	
 67,520.05
 
 	
  
 













	
  
 	
  
 	
  
 	
  
 	
  
 	
  
 	
  
 	
  
 	
  
 	
  
 
	
 Principal 

 Payment

 Number
 	
  
 	
 Principal

 Payment

 Date
 	
  
 	
 Beginning

 Balance
 	
  
 	
 Principal

 Payment
 	
  
 
	
  
 	
  
 	
  
 	
  
 	
  
 	
  
 	
  
 	
  
 	
  
 	
  
 
	
 33
 	
  
 	
 8/1/2013
 	
  
 	
  
 	
 73,035,012.51
 	
  
 	
  
 	
 67,942.05
 
 	
  
 
	
 34
 	
  
 	
 9/1/2013
 	
  
 	
  
 	
 72,967,070.45
 	
  
 	
  
 	
 68,366.69
 
 	
  
 
	
 35
 	
  
 	
 10/1/2013
 	
  
 	
  
 	
 72,898,703.76
 	
  
 	
  
 	
 68,793.98
 
 	
  
 
	
 36
 	
  
 	
 11/1/2013
 	
  
 	
  
 	
 72,829,909.78
 	
  
 	
  
 	
 69,223.95
 
 	
  
 
	
 37
 	
  
 	
 12/1/2013
 	
  
 	
  
 	
 72,760,685.84
 	
  
 	
  
 	
 69,656.59
 
 	
  
 
	
 38
 	
  
 	
 1/1/2014
 	
  
 	
  
 	
 72,691,029.24
 	
  
 	
  
 	
 70,091.95
 
 	
  
 
	
 39
 	
  
 	
 2/1/2014
 	
  
 	
  
 	
 72,620,937.29
 	
  
 	
  
 	
 70,530.02
 
 	
  
 
	
 40
 	
  
 	
 3/1/2014
 	
  
 	
  
 	
 72,550,407.27
 	
  
 	
  
 	
 70,970.84
 
 	
  
 
	
 41
 	
  
 	
 4/1/2014
 	
  
 	
  
 	
 72,479,436.43
 	
  
 	
  
 	
 71,414.40
 
 	
  
 
	
 42
 	
  
 	
 5/1/2014
 	
  
 	
  
 	
 72,408,022.03
 	
  
 	
  
 	
 71,860.74
 
 	
  
 
	
 43
 	
  
 	
 6/1/2014
 	
  
 	
  
 	
 72,336,161.28
 	
  
 	
  
 	
 72,309.87
 
 	
  
 
	
 44
 	
  
 	
 7/1/2014
 	
  
 	
  
 	
 72,263,851.41
 	
  
 	
  
 	
 72,761.81
 
 	
  
 
	
 45
 	
  
 	
 8/1/2014
 	
  
 	
  
 	
 72,191,089.60
 	
  
 	
  
 	
 73,216.57
 
 	
  
 
	
 46
 	
  
 	
 9/1/2014
 	
  
 	
  
 	
 72,117,873.03
 	
  
 	
  
 	
 73,674.17
 
 	
  
 
	
 47
 	
  
 	
 10/1/2014
 	
  
 	
  
 	
 72,044,198.85
 	
  
 	
  
 	
 74,134.64
 
 	
  
 
	
 48
 	
  
 	
 11/1/2014
 	
  
 	
  
 	
 71,970,064.22
 	
  
 	
  
 	
 74,597.98
 
 	
  
 
	
 49
 	
  
 	
 12/1/2014
 	
  
 	
  
 	
 71,895,466.24
 	
  
 	
  
 	
 75,064.22
 
 	
  
 
	
 50
 	
  
 	
 1/1/2015
 	
  
 	
  
 	
 71,820,402.02
 	
  
 	
  
 	
 75,533.37
 
 	
  
 
	
 51
 	
  
 	
 2/1/2015
 	
  
 	
  
 	
 71,744,868.65
 	
  
 	
  
 	
 76,005.45
 
 	
  
 
	
 52
 	
  
 	
 3/1/2015
 	
  
 	
  
 	
 71,668,863.20
 	
  
 	
  
 	
 76,480.49
 
 	
  
 
	
 53
 	
  
 	
 4/1/2015
 	
  
 	
  
 	
 71,592,382.71
 	
  
 	
  
 	
 76,958.49
 
 	
  
 
	
 54
 	
  
 	
 5/1/2015
 	
  
 	
  
 	
 71,515,424.22
 	
  
 	
  
 	
 77,439.48
 
 	
  
 
	
 55
 	
  
 	
 6/1/2015
 	
  
 	
  
 	
 71,437,984.74
 	
  
 	
  
 	
 77,923.48
 
 	
  
 
	
 56
 	
  
 	
 7/1/2015
 	
  
 	
  
 	
 71,360,061.26
 	
  
 	
  
 	
 78,410.50
 
 	
  
 
	
 57
 	
  
 	
 8/1/2015
 	
  
 	
  
 	
 71,281,650.77
 	
  
 	
  
 	
 78,900.56
 
 	
  
 
	
 58
 	
  
 	
 9/1/2015
 	
  
 	
  
 	
 71,202,750.20
 	
  
 	
  
 	
 79,393.69
 
 	
  
 
	
 59
 	
  
 	
 10/1/2015
 	
  
 	
  
 	
 71,123,356.51
 	
  
 	
  
 	
 79,889.90
 
 	
  
 
	
 60
 	
  
 	
 11/1/2015
 	
  
 	
  
 	
 71,043,466.61
 	
  
 	
  
 	
 80,389.22
 
 	
  
 


2





EXHIBIT “E”


INTENTIONALLY OMITTED





EXHIBIT “F”


ADVANCES


                    1.
Draw Request. A “Draw Request”
means a properly completed and executed written application by Borrower to
Administrative Agent in the form of Exhibit “F-1” (or in another form
satisfactory to Administrative Agent) setting forth the amount of the Future
Advance. 


                    2.
Limit on Advances. No more than two advances shall be made by Lenders
under this Agreement, such advances to be subject to satisfaction of the
conditions described in this Agreement and to be made as follows: 


	
  
 	
  
 
	
  
 	
           (a) An initial advance in the amount of the
 Initial Advance to reimburse Borrower for a portion of the acquisition cost
 of the Property. The Initial Advance
 shall be evidenced by the Initial Advance Notes and secured by, among other
 things, the Initial Advance Mortgage. 
 
	
  
 	
  
 
	
  
 	
           (b) Notwithstanding anything to the contrary
 contained herein, there shall be only one Future Advance, to be advanced, if
 at all, in a single lump sum. The
 Future Advance shall be evidenced by the Future Advance Notes and secured by,
 among other things, the Future Advance Mortgage. 
 


                    3. Conditions to the Initial Advance. As conditions precedent to the Initial
Advance hereunder, if and to the extent required by Administrative Agent, to
Administrative Agent’s satisfaction, Borrower must have satisfied the
conditions required under this Agreement, including all of those conditions set
forth in Exhibit “C” and Section 4 below. 


                    4. Conditions to All Advances. As conditions precedent to each advance, in
addition to all other requirements contained in this Agreement, if and to the
extent required by Administrative Agent, Administrative Agent shall have
received and approved the following: 


	
  
 	
  
 
	
  
 	
           (i)
 Evidence satisfactory to Administrative Agent of the continued satisfaction
 of all conditions to the Initial Advance and, as to the Future Advance,
 Exhibit “C-1”. 
 
	
  
 	
  
 
	
  
 	
           (ii) A
 Draw Request.
 
	
  
 	
  
 
	
  
 	
           (iii) Evidence
 satisfactory to Administrative Agent that no Default or any event which, with
 the giving of notice or the lapse of time, or both, could become a Default,
 exists.
 
	
  
 	
  
 
	
  
 	
           (iv)
 Evidence satisfactory to Administrative Agent that the representations and
 warranties made in the Loan Documents must be true and correct on and as of
 the date of each advance and no event shall have occurred or condition or
 circumstance shall exist which, if known to Borrower, would render any such
 representation or warranty incorrect or misleading.
 











	
  
 	
  
 
	
  
 	
           (v) To
 the extent requested by Administrative Agent, a true and complete copy of
 each contract to which Borrower is a party, if applicable, for labor,
 materials, services and/or other work included in a Draw Request duly
 executed and delivered by all parties thereto and effective, and a true and
 complete copy of a fully executed copy of each such subcontract or other
 contract as Administrative Agent may have requested.
 
	
  
 	
  
 
	
  
 	
           (vi)
 Evidence satisfactory to Administrative Agent that no mechanic’s or
 materialmen’s lien or other encumbrance has been filed and remain in effect
 against the Property, no stop notices shall have been served on Lenders that
 have not been bonded by Borrower in a manner and amount satisfactory to Administrative
 Agent, and releases or waivers of mechanics’ liens and receipted bills
 showing payment of all amounts due to all parties who have furnished
 materials or services or performed labor of any kind in connection with the
 Property.
 
	
  
 	
  
 
	
  
 	
           (vii) Evidence
 satisfactory to Administrative Agent that the Title Insurance has been
 endorsed and brought to date in a manner satisfactory to Administrative Agent
 to increase the coverage by the amount of each advance through the date of
 each such advance with no additional title change or exception not approved
 by Administrative Agent.
 
	
  
 	
  
 
	
  
 	
           (viii) Evidence satisfactory to Administrative Agent that the
 Improvements shall not have been damaged and not repaired and shall not be
 the subject of any pending or threatened condemnation or adverse zoning
 proceeding.
 


                    5. Conditions and Waivers. All
conditions precedent to the obligation of Lenders to make any advance are
imposed hereby solely for the benefit of Administrative Agent and Lenders, and
no other party may require satisfaction of any such condition precedent or be
entitled to assume that Lenders will refuse to make any advance in the absence
of strict compliance with such conditions precedent. No advance shall
constitute an approval or acceptance by Administrative Agent of any
construction work, or a waiver of any condition precedent to any further
advance, or preclude Administrative Agent from thereafter declaring the failure
of Borrower to satisfy such condition precedent to be a Default. No waiver by
Administrative Agent of any condition precedent or obligation shall preclude
Administrative Agent from requiring such condition or obligation to be met
prior to making any other advance or from thereafter declaring the failure to
satisfy such condition or obligation to be a Default. 


2







EXHIBIT “F-1”


DRAW REQUEST


[BORROWER’S LETTERHEAD]


	
  
 	
  
 	
  
 	
  
 	
  
 
	
 TO:
 	
 BANK OF
 AMERICA, N.A. (“Administrative Agent”)
 
	
  
 	
  
 	
  
 	
  
 	
  
 
	
 LOAN NO.
 	
  
 	
  
 	
 DATE:
 	
  
 
	
  
 	

 
 	
  
 	

 
 
	
  
 	
  
 	
  
 	
  
 	
  
 
	
 PROJECT:
 	
 Cortlandt
 Towne Center
 	
  
 	
  
 
	
  
 	
  
 	
  
 	
  
 	
  
 
	
 LOCATION:
 	
 Cortlandt,
 New York
 	
  
 	
  
 
	
  
 	
  
 	
  
 	
  
 	
  
 
	
 BORROWER:
 	
 Acadia
 Cortlandt LLC
 	
  
 	
  
 
	
  
 	
  
 	
  
 	
  
 	
  
 
	
 FOR PERIOD
 ENDING:
 	
  
 	

  
 	
  
 	
  
 
	
  
 	
  
 	

 
 	
  
 	
  
 
	
  
 	
  
 	
  
 	
  
 	
  
 
	
 In accordance with the Amended and Restated Loan Agreement dated
 October 26, 2010 between Borrower, Administrative Agent and Lenders,
 Borrower requests that the Future Advance be advanced. The proceeds should be
 credited to the account of _________________________, Account No.
 ____________, at ______________________________.
 






	
  
 	
  
 	
  
 
	
 AUTHORIZED
 SIGNER:
 	
  
 
	

  
 	
  
 
	
  
 	
 Dated:
 	

  
 
	
 
 	
  
 	

 
 









EXHIBIT “G”


SURVEY REQUIREMENTS


                    1.
Requirements. The Survey shall be made in accordance with, and meet the
requirements of, the certification below by a registered professional engineer
or registered professional land surveyor. The description shall be a single
metes and bounds perimeter description of the entire Land, and a separate metes
and bounds description of the perimeter of each constituent tract or parcel out
of the Land. The total acreage and square footage of the Land and each
constituent tract or parcel of the Land shall be certified. If the Land has
been recorded on a map or plat as part of an abstract or subdivision, all
survey lines must be shown, and all lot and block lines (with distances and
bearings) and numbers, must be shown. The date of any revisions subsequent to
the initial survey prepared pursuant to these requirements must also be shown.


                    2.
Certification. The certification for the property description and the
map or plat shall be addressed to Administrative Agent for Lenders, Borrower
and the Title Company, signed by the surveyor (a registered professional land
surveyor or registered professional engineer), bearing current date,
registration number, and seal, and shall be in the following form or its
substantial equivalent:


	
  
 	
  
 
	
  
 	
 This is to
 certify to Bank of America, N.A., as Administrative Agent for certain
 Lenders, _________________________, as Borrower and,
 _________________________, as the Title Company that this map or plat and the
 survey on which it is based were made in accordance with the “Minimum
 Standard Detail Requirements for ALTA/ACSM Land Title Surveys” jointly
 established and adopted by ALTA and NSPS in 2005, and include optional items
 1, 2, 4 (in square feet or acres), 6, 8, 10, 11(b), 16, 17, 18, and if
 buildings are located on the land, optional items 7(a), 7(b)(1), 7(b)(2) and
 9 of Table A thereof. Pursuant to the Accuracy Standards as adopted by
 ALTA and NSPS and in effect on the date of this certification, the
 undersigned further certifies that in my professional opinion, as a land
 surveyor registered in the State of ____________, the maximum Relative
 Positional Accuracy resulting from the measurements made on the survey does
 not exceed the Allowable Relative Positional Accuracy for Measurements
 Controlling Land Boundaries on ALTA/ACSM Land Title Surveys (0.07 feet or 20 mm
 + 50 ppm). The undersigned additionally certifies that (a) this survey was
 made on the ground under my supervision; (b) I have received and examined a
 copy of the Title Insurance Commitment No. _______________ issued by the
 Title Company as well as a copy of each instrument listed therein, and the
 subject land and each tract or parcel thereof described in this survey is the
 same land as described in the Title Commitment; (c) if the subject land
 consists of two or more tracts or parcels having common boundaries, those
 tracts and parcels are contiguous along the common boundaries; (d) the
 subject land and each tract or parcel thereof has a tax map designation
 separate and distinct from that of any other land and the subject land and
 each tract or parcel thereof is a separate, legally subdivided parcel; (e)
 this survey correctly shows all matters of record, (and to the extent they
 can be located, their location and dimensions) of which I have been advised
 affecting the subject land according to the legal description in such matters
 (with instrument, book,
 













	
  
 	
  
 
	
  
 	
 and page
 number indicated); (f) except as shown on this survey, no part of the subject
 land is located in a 100-year Flood Plain or in an identified “flood prone
 area”, as defined pursuant to the Flood Disaster Protection Act of 1973, as
 amended, as reflected by Flood Insurance Rate Map Panel #____________ dated
 _______________, which such map panel covers the area in which the Property
 is situated and this survey correctly indicates the zone designation of any
 area as being in the 100-year Flood Plain or “flood prone area”; (g) to the
 best of my knowledge, this survey shows the relation of and distance of all
 substantial, visible buildings, sidewalks and other improvements to easements
 and setback lines; and (h) to the best of my knowledge, except as shown on
 this survey, neither the subject land nor any tract or parcel thereof serves
 any adjoining land for drainage, utilities, or ingress or egress.
 


2





EXHIBIT “H”


INTENTIONALLY OMITTED





EXHIBIT “I”


LEASING AND TENANT MATTERS


          Borrower
and Lenders agree as follows:


                    1.
Approved Leases. Borrower shall not enter into any tenant lease of space
in the Improvements unless satisfactory to or deemed satisfactory to
Administrative Agent prior to execution. Borrower’s standard form of tenant
lease, and any revisions thereto, must have the prior written approval of
Administrative Agent. Any tenant lease shall be “deemed” satisfactory to
Administrative Agent that (a) is either on the standard form lease approved by
Administrative Agent, with no material deviations except as satisfactory to
Administrative Agent or on the standard lease form of a national retailer which
contains no provisions materially more adverse to landlord than the provisions
of the lease form approved by Administrative Agent; (b) is entered into in the
ordinary course of business with a bona fide unrelated third party tenant, and
Borrower, acting in good faith and exercising due diligence, has determined
that the tenant is financially capable of performing its obligations under the
lease; (c) is received by Administrative Agent (together with each guarantee
thereof (if any) and financial information regarding the tenant and each
guarantor (if any) received by Borrower) within fifteen (15) days after
execution; (d) reflects an arms-length transaction at then current market rate
for comparable space; (e) contains no right to purchase the Property, or any
present or future interest therein; (f) does not cover in excess of 15,000
square feet of net rentable area of the Improvements; and (g) is expressly
subordinate to the Mortgage. Borrower shall provide to Administrative Agent a
correct and complete copy of each tenant lease, including any exhibits, and
each guarantee thereof (if any), prior to execution unless the lease in
question is reasonably satisfactory to Administrative Agent under the foregoing
requirements. Borrower shall, throughout the term of this Agreement, pay all
reasonable costs incurred by Administrative Agent in connection with
Administrative Agent’s review and approval of tenant leases and each guarantee
thereof (if any), including reasonable attorneys’ fees and costs.


                    2.
Effect of Lease Approval. No approval of any lease by Administrative Agent
shall be for any purpose other than to protect Lenders’ security, and to
preserve Lenders’ rights under the Loan Documents. No approval by
Administrative Agent shall result in a waiver of any default of Borrower. In no
event shall any approval by Administrative Agent of a lease be a representation
of any kind, with regard to the lease or its adequacy or enforceability, or the
financial capacity of any tenant or guarantor.


                    3.
Representations Concerning Leases. Borrower represents and warrants to
Administrative Agent and Lenders that Borrower has delivered to Administrative
Agent a true and correct copy of all tenant leases and each guarantee thereof
(if any), affecting any part of the Improvements, together with an accurate and
complete rent roll for the Project, and no such lease or guarantee contains any
option to purchase all or any portion of the Property or any interest therein
or contains any right of first refusal relating to any sale of the Property or
any portion thereof or interest therein.





                    4.
Delivery of Leasing Information and Documents. Borrower shall promptly
(a) deliver to Administrative Agent such quarterly rent rolls, leasing
schedules and reports, operating statements, financial statements for tenants
other than residential tenants with a lease term for less than one year and
other information regarding tenants and prospective tenants or other leasing
information as Administrative Agent from time to time may request, and (b)
obtain and deliver to Administrative Agent such estoppel certificates and
subordination and attornment agreements executed by such tenants (and
guarantors, if any) in the respective forms attached as exhibits to the Closing
Checklist, or otherwise in such forms as Administrative Agent from time to time
may reasonably require.


                    5.
Income from the Property. Borrower shall first apply all income from
leases, and all other income derived from the Property, to pay costs and
expenses associated with the ownership, maintenance, development, operating,
and marketing of the Land and Improvements, including all amounts then required
to be paid under the Loan Documents, before using or applying such income for
any other purpose.


                    6.
Compliance and Default. As additional conditions to Lenders’ obligations
under this Agreement, all tenants having the right to do so must approve all
plans and all changes thereto, the construction of the Improvements, and all
other aspects of the Project requiring tenants’ approval. A default by Borrower
under or any failure by Borrower to satisfy any of the conditions of a lease
shall constitute a Default under this Agreement. Borrower shall promptly notify
Administrative Agent in writing of any failure by any party to perform any
material obligation under any lease, any event or condition which would permit
a tenant to terminate or cancel a lease, or any notice given by a tenant with
respect to the foregoing, specifying in each case the action Borrower has taken
or will take with respect thereto.


2






EXHIBIT “J”


INTENTIONALLY OMITTED





EXHIBIT “K”


INTENTIONALLY OMITTED 





EXHIBIT “L”


ASSIGNMENT AND ASSUMPTION


                    This
Assignment and Assumption (this “Assignment”) is dated as of the Effective Date
set forth below and is entered into by and between _________________ (the
“Assignor”) and ____________________ (the “Assignee”). Capitalized terms used
but not defined herein shall have the meanings given to them in the Loan
Agreement identified below (the “Loan Agreement”), receipt of a copy of which
is hereby acknowledged by the Assignee. The Standard Terms and Conditions set
forth in Annex 1 attached hereto are hereby agreed to and incorporated herein
by reference and made a part of this Assignment as if set forth herein in full.


                    For
an agreed consideration, the Assignor hereby irrevocably sells and assigns to
the Assignee, and the Assignee hereby irrevocably purchases and assumes from
the Assignor, subject to and in accordance with the Standard Terms and
Conditions and the Loan Agreement, as of the Effective Date inserted by
Administrative Agent as contemplated below, (i) all of the Assignor’s rights
and obligations as a Lender under the Loan Agreement and any other documents or
instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and
obligations of the Assignor under the respective facilities identified below
(including, without limitation [Letters of Credit and] Guarantees), and (ii) to
the extent permitted to be assigned under applicable Law, all claims, suits,
causes of action and any other right of the Assignor (in its capacity as a
Lender) against any person, whether known or unknown, arising under or in
connection with the Loan Agreement, any other documents or instruments
delivered pursuant thereto or in any way based on or related to any of the
foregoing, including, but not limited to contract claims, tort claims,
malpractice claims, statutory claims and all other claims at Law or in equity,
related to the rights and obligations sold and assigned pursuant to clause (i)
above (the rights and obligations sold and assigned pursuant to clauses (i) and
(ii) above being referred to herein collectively as the “Assigned Interest”).
Such sale and assignment is without recourse to the Assignor and, except as
expressly provided in this Assignment, without representation or warranty by
the Assignor.


	
  
 	
  
 
	
 1.
 	
 Assignor: _________________________
 
	
  
 	
  
 
	
 2.
 	
 Assignee: _________________________[, an
 Affiliate/Approved Fund of _____________]
 
	
  
 	
  
 
	
 3.
 	
 Borrower(s): ______________________________
 
	
  
 	
  
 
	
 4.
 	
 Administrative Agent:
 _________________________, as administrative agent under the Loan Agreement
 
	
  
 	
  
 
	
 5.
 	
 Loan Agreement: The Amended and Restated
 Loan Agreement, dated as of _______________, among _________________________,
 Lenders parties thereto, [and] Bank of America, N.A., as
 Administrative Agent[, and the other agents parties thereto]
 













	
  
 	
  
 
	
 6.
 	
 Assigned
 Interest:
 






	
  
 	
  
 	
  
 	
  
 	
  
 
	
 Aggregate Amount

 of Commitment/

 Loans for all Lenders
 	
  
 	
 Amount of

 Commitment/

 Loans Assigned
 	
  
 	
 Percentage Assigned

 of Commitment/Loans
 
	

 
 	
  
 	

 
 	
  
 	

 
 
	
 $____________1
 	
  
 	
 $____________2
 	
  
 	
 __________%
 


Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT
AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE
REGISTER THEREFOR.]


The terms set
forth in this Assignment are hereby agreed to:


	
  
 	
  
 	
  
 
	
  
 	
 ASSIGNOR:
 
	
  
 	
  
 
	
  
 	

 
 
	
  
 	
  
 
	
  
 	
 By
 	
  
 
	
  
 	
  
 	

 
 
	
  
 	
  
 	
 Name:
 
	
  
 	
  
 	
 Title:
 
	
  
 	
  
 	
  
 
	
  
 	
 ASSIGNEE:
 
	
  
 	
  
 
	
  
 	

 
 
	
  
 	
  
 
	
  
 	
 By
 	
  
 
	
  
 	
  
 	

 
 
	
  
 	
  
 	
 Name:
 
	
  
 	
  
 	
 Title:
 






	
  
 	
  
 	
  
 
	

 
 	
  
 
	
  
 
	
 1
 	
 Comprised of
 the Initial Advance of $50,000,000 and the Future Advance of $____________
 
	
 2
 	
 Comprised of
 $____________ of the Initial Advance and $____________ of the Future Advance
 


2









	
  
 	
  
 	
  
 
	
 [CONSENTED
 TO AND] ACCEPTED:
 	
  
 
	
  
 	
  
 
	
 BANK OF
 AMERICA, N.A., as Administrative Agent
 	
  
 
	
  
 	
  
 	
  
 
	
 By
 	
  
 	
  
 
	
  
 	

 
 	
  
 
	
  
 	
 Name:
 	
  
 
	
  
 	
 Title:
 	
  
 
	
  
 	
  
 	
  
 
	
 [CONSENTED
 TO]:
 	
  
 
	
  
 	
  
 	
  
 
	

 
 	
  
 
	
  
 	
  
 	
  
 
	
 By
 	
  
 	
  
 
	
  
 	

 
 	
  
 
	
  
 	
 Name:
 	
  
 
	
  
 	
 Title:
 	
  
 


3





ANNEX 1 TO ASSIGNMENT AND ASSUMPTION


STANDARD TERMS AND CONDITIONS

FOR ASSIGNMENT AND ASSUMPTION


                    1.
Representations and Warranties.


                    1.1.
Assignor. The Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest
is free and clear of any lien, encumbrance or other adverse claim and (iii) it
has full power and authority, and has taken all action necessary, to execute
and deliver this Assignment and to consummate the transactions contemplated
hereby; and (b) assumes no responsibility with respect to (i) any statements,
warranties or representations made in or in connection with the Loan Agreement
or any other Loan Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Loan Documents, or any
collateral thereunder, (iii) the financial condition of Borrower, any of its
Subsidiaries or Affiliates or any other person obligated in respect of any Loan
Document or (iv) the performance or observance by Borrower, any of its
Subsidiaries or Affiliates or any other person of any of their respective
obligations under any Loan Document.


                    1.2.
Assignee. The Assignee (a) represents and warrants that (i) it has full
power and authority, and has taken all action necessary, to execute and deliver
this Assignment and to consummate the transactions contemplated hereby and to
become a Lender under the Loan Agreement, (ii) it meets all requirements of an
Eligible Assignee under the Loan Agreement (subject to receipt of such consents
as may be required under the Loan Agreement), (iii) from and after the
Effective Date, it shall be bound by the provisions of the Loan Agreement as a
Lender thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the Loan
Agreement, together with copies of the most recent financial statements
delivered pursuant to Section __ thereof, as applicable, and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision independently and without reliance on Administrative
Agent or any other Lender to enter into this Assignment and to purchase the
Assigned Interest on the basis of which it has made such analysis and decision,
and (v) if it is a Foreign Lender, attached hereto is any documentation
required to be delivered by it pursuant to the terms of the Loan Agreement,
duly completed and executed by the Assignee; and (b) agrees that (i) it will,
independently and without reliance on Administrative Agent, the Assignor or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Loan Documents, and (ii) it will perform in
accordance with their terms all of the obligations which by the terms of the
Loan Documents are required to be performed by it as a Lender.


                    1.3
Assignee’s Address for Notices, etc. Attached hereto as Schedule 1 is
all contact information, address, account and other administrative information
relating to the Assignee.


                    2.
Payments. From and after the Effective Date, Administrative Agent shall
make all payments in respect of the Assigned Interest (including payments of
principal, interest, 





fees and other amounts) to the Assignee whether such amounts have
accrued prior to or on or after the Effective Date. The Assignor and the
Assignee shall make all appropriate adjustments in payments by Administrative
Agent for periods prior to the Effective Date or with respect to the making of
this Assignment directly between themselves.


                    3.
General Provisions. This Assignment shall be binding upon, and inure to
the benefit of, the parties hereto and their respective successors and assigns.
This Assignment may be executed in any number of counterparts, which together
shall constitute one instrument. Delivery of an executed counterpart of a
signature page of this Assignment by telecopy shall be effective as delivery of
a manually executed counterpart of this Assignment. This Assignment shall be
governed by, and construed in accordance with, the Law of the State of
____________________ [confirm that choice of law provision parallels the
Loan Agreement].


2





SCHEDULE 1 TO ASSIGNMENT AND ASSUMPTION


ADMINISTRATIVE DETAILS


(Assignee to list names of credit contacts,
addresses, phone and

facsimile numbers, electronic mail addresses and account and payment
information)


	
  
 	
  
 	
  
 
	
 (a)
 	
 LIBOR
 Lending Office:
 
	
  
 	
  
 	
  
 
	
  
 	
 Assignee
 name:
 	
 Bank of
 America, N.A.
 
	
  
 	
 Address:
 	
 One Bryant
 Park, 35th Floor
 
	
  
 	
  
 	
 New York,
 New York 10036
 
	
  
 	
 Attention:
 	
 Mr. Gregory
 Egli
 
	
  
 	
 Telephone:
 	
 646-855-2630
 
	
  
 	
 Facsimile:
 	
 212-293-8197
 
	
  
 	
 Electronic
 Mail:
 	
 gregory.w.egli@baml.com
 
	
  
 	
  
 	
  
 
	
 (b)
 	
 Domestic
 Lending Office:
 
	
  
 	
  
 	
  
 
	
  
 	
 Assignee
 name:
 	
 Bank of
 America, N.A.
 
	
  
 	
 Address:
 	
 One Bryant
 Park, 35th Floor
 
	
  
 	
  
 	
 New York,
 New York 10036
 
	
  
 	
 Attention:
 	
 Mr. Gregory
 Egli
 
	
  
 	
 Telephone:
 	
 646-855-2630
 
	
  
 	
 Facsimile:
 	
 212-293-8197
 
	
  
 	
 Electronic
 Mail:
 	
 gregory.w.egli@baml.com
 
	
  
 	
  
 	
  
 
	
 (c)
 	
 Notice
 Address:
 	
  
 
	
  
 	
  
 	
  
 
	
  
 	
 Assignee
 name:
 	
 Bank of
 America, N.A.
 
	
  
 	
 Address:
 	
 One Bryant
 Park, 35th Floor
 
	
  
 	
  
 	
 New York,
 New York 10036
 
	
  
 	
 Attention:
 	
 Mr. Gregory
 Egli
 
	
  
 	
 Telephone:
 	
 646-855-2630
 
	
  
 	
 Facsimile:
 	
 212-293-8197
 
	
  
 	
 Electronic
 Mail:
 	
 gregory.w.egli@baml.com
 
	
  
 	
  
 	
  
 
	
 (d)
 	
 Payment
 Instructions:
 	
  
 
	
  
 	
  
 	
  
 
	
  
 	
 Account No.
 	
 _________________________
 
	
  
 	
 Attention:
 	
 _________________________
 
	
  
 	
 Reference:
 	
 _________________________
 













	
  
 	
  
 
	
 EXHIBIT “M”
 
	
  
 
	
 NOTE
 
	
  
 
	
 $____________
 	
 ____________, 20___
 


                    FOR
VALUE RECEIVED, _________________________ (“Borrower”, whether one or more)
hereby promises to pay to the order of [_________________________ (“Lender”) under that
certain Loan Agreement (defined below) among Borrower,] Bank of
America N.A., a national banking association and administrative agent (together
with any and all of its successors and assigns, “Administrative Agent”) for the
benefit of Lenders from time to time a party to that certain Amended and
Restated Loan Agreement (the “Loan Agreement”) [dated ____________, 20__] of
even date herewith, without offset, in immediately available funds in lawful
money of the United States of America, at Administrative Agent’s Office as
defined in the Loan Agreement, the principal sum of _________________________
DOLLARS ($____________) (or the unpaid balance of all principal advanced
against this Note, if that amount is less), together with interest on the
unpaid principal balance of this Note from day to day outstanding as
hereinafter provided.


          1. Note;
Interest; Payment Schedule and Maturity Date. This Note is one of the [Initial
Advance] [Future Advance] Notes referred to in Loan
Agreement and is entitled to the benefits thereof. The entire principal balance
of this Note then unpaid shall be due and payable at the times as set forth in
the Loan Agreement. Accrued unpaid interest shall be due and payable at the
times and at the interest rate as set forth in the Loan Agreement until all
principal and accrued interest owing on this Note shall have been fully paid
and satisfied. Any amount not paid when due and payable hereunder shall, to the
extent permitted by applicable Law, bear interest and if applicable a late
charge as set forth in the Loan Agreement.


          2. Security;
Loan Documents. The security for this Note includes a Mortgage, Assignment
of Leases and Rents and Security Agreement in the amount of $[____________]
(which, as it may have been or may be amended, restated, modified or
supplemented from time to time, is herein called the “Mortgage”) dated
____________, 20___ from Borrower to Administrative Agent covering certain
property in Cortlandt, Westchester County, New York described therein (the
“Property”). This Note, the Mortgage, the Loan Agreement and all other
documents now or hereafter securing, guaranteeing or executed in connection
with the loan evidenced by this Note (the “Loan”), are, as the same have been
or may be amended, restated, modified or supplemented from time to time, herein
sometimes called individually a “Loan Document” and together the “Loan
Documents”.


          3. Defaults.


                    (a)
It shall be a default (“Default”) under this Note and each of the other Loan
Documents if (i) any principal, interest or other amount of money due under
this Note is not paid in full when due, regardless of how such amount may have
become due; (ii) any covenant, agreement, condition, representation or warranty
herein or in any other Loan Documents is not fully and timely performed,
observed or kept; or (iii) there shall occur any default or event of 





default under the Mortgage or any other Loan Document. Upon the
occurrence of a Default, Administrative Agent on behalf of Lenders shall have
the rights to declare the unpaid principal balance and accrued but unpaid
interest on this Note, and all other amounts due hereunder and under the other
Loan Documents, at once due and payable (and upon such declaration, the same
shall be at once due and payable), to foreclose any liens and security
interests securing payment hereof and to exercise any of its other rights,
powers and remedies under this Note, under any other Loan Document, or at Law
or in equity.


                    (b)
All of the rights, remedies, powers and privileges (together, “Rights”) of
Administrative Agent on behalf of Lenders provided for in this Note and in any
other Loan Document are cumulative of each other and of any and all other
Rights at Law or in equity. The resort to any Right shall not prevent the
concurrent or subsequent employment of any other appropriate Right. No single
or partial exercise of any Right shall exhaust it, or preclude any other or
further exercise thereof, and every Right may be exercised at any time and from
time to time. No failure by Administrative Agent or Lenders to exercise, nor
delay in exercising any Right, including but not limited to the right to
accelerate the maturity of this Note, shall be construed as a waiver of any
Default or as a waiver of any Right. Without limiting the generality of the
foregoing provisions, the acceptance by Lender from time to time of any payment
under this Note which is past due or which is less than the payment in full of
all amounts due and payable at the time of such payment, shall not (i)
constitute a waiver of or impair or extinguish the right of Administrative
Agent or Lenders to accelerate the maturity of this Note or to exercise any
other Right at the time or at any subsequent time, or nullify any prior
exercise of any such Right, or (ii) constitute a waiver of the requirement of
punctual payment and performance or a novation in any respect.


                    (c)
If any holder of this Note retains an attorney in connection with any Default
or at maturity or to collect, enforce or defend this Note or any other Loan
Document in any lawsuit or in any probate, reorganization, bankruptcy,
arbitration or other proceeding, or if Borrower sues any holder in connection
with this Note or any other Loan Document and does not prevail, then Borrower
agrees to pay to each such holder, in addition to principal, interest and any
other sums owing to Lenders hereunder and under the other Loan Documents, all
costs and expenses incurred by such holder in trying to collect this Note or in
any such suit or proceeding, including, without limitation, attorneys’ fees and
expenses, investigation costs and all court costs, whether or not suit is filed
hereon, whether before or after the Maturity Date, or whether in connection
with bankruptcy, insolvency or appeal, or whether collection is made against
Borrower or any guarantor or endorser or any other person primarily or
secondarily liable hereunder.


          4. Heirs,
Successors and Assigns. The terms of this Note and of the other Loan
Documents shall bind and inure to the benefit of the heirs, devisees,
representatives, successors and assigns of the parties. The foregoing sentence
shall not be construed to permit Borrower to assign the Loan except as
otherwise permitted under the Loan Documents. As further provided in the Loan
Agreement, a Lender may, at any time, sell, transfer, or assign all or a
portion of its interest in this Note, the Mortgage and the other Loan
Documents, as set forth in the Loan Agreement.


2





          5. General
Provisions. Time is of the essence with respect to Borrower’s obligations
under this Note. If more than one person or entity executes this Note as
Borrower, all of said parties shall be jointly and severally liable for payment
of the indebtedness evidenced hereby. Borrower and all sureties, endorsers,
guarantors and any other party now or hereafter liable for the payment of this
Note in whole or in part, hereby severally (a) waive demand, presentment for
payment, notice of dishonor and of nonpayment, protest, notice of protest,
notice of intent to accelerate, notice of acceleration and all other notices
(except any notices which are specifically required by this Note or any other
Loan Document), filing of suit and diligence in collecting this Note or
enforcing any of the security herefor; (b) agree to any substitution,
subordination, exchange or release of any such security or the release of any
party primarily or secondarily liable hereon; (c) agree that neither
Administrative Agent nor any Lender shall be required first to institute suit
or exhaust its remedies hereon against Borrower or others liable or to become
liable hereon or to perfect or enforce its rights against them or any security
herefor; (d) consent to any extensions or postponements of time of payment of
this Note for any period or periods of time and to any partial payments, before
or after maturity, and to any other indulgences with respect hereto, without
notice thereof to any of them; and (e) submit (and waive all rights to object)
to non-exclusive personal jurisdiction of any state or federal court sitting in
the city and county, and venue in the city or county, in which payment is to be
made as specified in the first paragraph of Page 1 of this Note, for the
enforcement of any and all obligations under this Note and the Loan Documents;
(f) waive the benefit of all homestead and similar exemptions as to this Note;
(g) agree that their liability under this Note shall not be affected or
impaired by any determination that any security interest or lien taken by
Lender to secure this Note is invalid or unperfected; and (h) hereby
subordinate any and all rights against Borrower and any of the security for the
payment of this Note, whether by subrogation, agreement or otherwise, until
this Note is paid in full. A determination that any provision of this Note is
unenforceable or invalid shall not affect the enforceability or validity of any
other provision and the determination that the application of any provision of
this Note to any person or circumstance is illegal or unenforceable shall not
affect the enforceability or validity of such provision as it may apply to
other persons or circumstances. This Note may not be amended except in a
writing specifically intended for such purpose and executed by the party
against whom enforcement of the amendment is sought. Captions and headings in
this Note are for convenience only and shall be disregarded in construing it.
THIS NOTE, AND ITS VALIDITY, ENFORCEMENT AND INTERPRETATION, SHALL BE GOVERNED
BY NEW YORK LAW (WITHOUT REGARD TO ANY CONFLICT OF LAWS PRINCIPLES) AND
APPLICABLE UNITED STATES FEDERAL LAW.


          6. Notices.
Any notice, request, or demand to or upon Borrower or Lender shall be deemed to
have been properly given or made when delivered in accordance with the Loan
Agreement.


          7. No
Usury. It is expressly stipulated and agreed to be the intent of Borrower,
Administrative Agent and all Lenders at all times to comply with applicable
state Law or applicable United States federal Law (to the extent that it
permits a Lender to contract for, charge, take, reserve, or receive a greater
amount of interest than under state Law) and that this Section shall control
every other covenant and agreement in this Note and the other Loan Documents.
If applicable state or federal Law should at any time be judicially interpreted
so as to render usurious any amount called for under this Note or under any of
the other Loan 


3





Documents, or contracted for, charged, taken, reserved, or received
with respect to the Loan, or if Administrative Agent’s exercise of the option
to accelerate the Maturity Date, or if any prepayment by Borrower results in
Borrower having paid any interest in excess of that permitted by applicable
Law, then it is Administrative Agent’s and each Lender’s express intent that
all excess amounts theretofore collected by Administrative Agent or any Lender
shall be credited on the principal balance of this Note and all other
indebtedness and the provisions of this Note and the other Loan Documents shall
immediately be deemed reformed and the amounts thereafter collectible hereunder
and thereunder reduced, without the necessity of the execution of any new
documents, so as to comply with the applicable Law, but so as to permit the
recovery of the fullest amount otherwise called for hereunder or thereunder.
All sums paid or agreed to be paid to Lenders for the use, forbearance, or
detention of the Loan shall, to the extent permitted by applicable Law, be
amortized, prorated, allocated, and spread throughout the full stated term of
the Loan until payment in full so that the rate or amount of interest on
account of the Loan does not exceed the maximum lawful rate from time to time
in effect and applicable to the Loan for so long as the Loan is outstanding.


                    THE
LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.


THERE ARE NO ORAL AGREEMENTS BETWEEN THE
PARTIES.


[Remainder of page intentionally left blank]


4






                    IN
WITNESS WHEREOF, Borrower has duly executed this Note under seal as of the date
first above written.


	
  
 	
  
 	
  
 
	
  
 	
 ACADIA CORTLANDT LLC, a Delaware limited liability company
 
	
  
 	
  
 	
  
 
	
  
 	
 By
 	
  
 
	
  
 	
  
 	

 
 
	
  
 	
  
 	
 Name:
 
	
  
 	
  
 	
 Title:
 


5






EXHIBIT “N”


SCHEDULE OF LENDERS AND OTHER PARTIES


BANK OF
AMERICA, N.A., as Administrative Agent:


Notices:


	
  
 	
  
 
	
 Bank of
 America, N.A.
 
	
 One Bryant
 Park, 35th Floor
 
	
 New York,
 New York 10036
 
	
 Attention:
 	
 Mr. Gregory
 Egli
 
	
 Telephone:
 	
 646-855-2630
 
	
 Facsimile:
 	
 212-293-8197
 
	
 Email:
 	
 gregory.w.egli@baml.com
 
	
  
 	
  
 
	
 Payment
 Instructions:
 
	
  
 	
  
 
	
 ABA No.:
 	
 026009593
 
	
 Account No.:
 	
 1366211723000
 
	
 Attention:
 	
 GCIB Credit
 Services - Keva Russell
 
	
 Reference:
 	
 Cortlandt
 Towne Center, LLC #1158129
 






	
  
 	
  
 
	
 BANK OF
 AMERICA, N.A., as Lender:
 
	
  
 
	
 Commitment Amount:
 	
 $50,000,000
 
	
 Pro Rata Share:
 	
 100%
 






	
  
 	
  
 
	
 Domestic and
 LIBOR Lending Office:
 
	
  
 	
  
 
	
 Bank of
 America, N.A.
 
	
 One Bryant
 Park, 35th Floor
 
	
 New York,
 New York 10036
 
	
 Attention:
 	
 Mr. Gregory
 Egli
 
	
 Telephone:
 	
 646-855-2630
 
	
 Facsimile:
 	
 212-293-8197
 
	
 Email:
 	
 gregory.w.egli@baml.com
 













	
  
 	
  
 
	
 Notices:
 	
  
 
	
  
 	
  
 
	
 Bank of
 America, N.A.
 
	
 One Bryant
 Park, 35th Floor
 
	
 New York,
 New York 10036
 
	
 Attention:
 	
 Mr. Gregory
 Egli
 
	
 Telephone:
 	
 646-855-2630
 
	
 Facsimile:
 	
 212-293-8197
 
	
 Email:
 	
 gregory.w.egli@baml.com
 
	
  
 	
  
 
	
 Payment
 Instructions:
 
	
  
 
	
 ABA No.:
 	
 026009593
 
	
 Account No.:
 	
 1366211723000
 
	
 Attention:
 	
 GCIB Credit
 Services - Keva Russell
 
	
 Reference:
 	
 Cortlandt
 Towne Center, LLC #1158129
 


2





EXHIBIT “O”


SWAP CONTRACTS


                    1.
Swap Documentation. Within the timeframes required by Lender and Swap
Counterparty, Borrower shall deliver to Swap Counterparty the following
documents and other items, executed and acknowledged as appropriate, all in
form and substance satisfactory to Lender and Swap Counterparty: (a) Master
Agreement in the form published by the International Swaps and Derivatives
Association, Inc. and related schedule in the form agreed upon between Borrower
(or its Affiliate) and Swap Counterparty; (b) a confirmation under the
foregoing, if applicable; (c) a Guaranty; (d) if Borrower (or its
Affiliate) is anything other than a natural person, evidence of due
authorization to enter into transactions under the foregoing Swap Contract with
Swap Counterparty, together with evidence of due authorization and execution of
any Swap Contract; and such other title endorsements, documents, instruments
and agreements as Lender and Swap Counterparty may require to evidence
satisfaction of the conditions set forth in this Section, including a swap
endorsement to Lender’s title policy in form and substance satisfactory to
Lender.


                    2.
Conveyance and Security Interest. To secure Borrower’s Obligations,
Borrower hereby transfers, assigns and transfers to Lender, and grants to
Lender a security interest in, all of Borrower’s right, title and interest, but
not its obligations, duties or liabilities for any breach, in, under and to the
Swap Contract, any and all amounts received by Borrower in connection therewith
or to which Borrower is entitled thereunder, and all proceeds of the foregoing.
All amounts payable to Borrower under the Swap Contract shall be paid to Lender
and shall be applied to pay interest or other amounts under the Loan.


                    3.
Intentionally Omitted. 


                    4.
Cross-Default. It shall be a Default under this Agreement if any default
(beyond any applicable notice or cure periods) occurs as defined under any Swap
Contract as to which Borrower (or its Affiliate) is the Defaulting Party, or if
any Termination Event occurs under any Swap Contract as to which Borrower (or
its Affiliate) is an Affected Party. As used in this Section, the terms
“Defaulting Party”, “Termination Event” and “Affected Party” have the meanings
ascribed to them in the Swap Contract.


                    5.
Remedies; Cure Rights. In addition to any and all other remedies to
which Lender and Swap Counterparty are entitled at law or in equity, Swap
Counterparty shall have the right, to the extent so provided in any Swap
Contract or any Master Agreement relating thereto, (a) to declare an event of
default, termination event or other similar event thereunder and to designate
an Early Termination Date as defined under the Master Agreement, and (b) to
determine net termination amounts in accordance with the Swap Contract and to
setoff amounts between Swap Contracts. Lender shall have the right at any time
(but shall have no obligation) to take in its name or in the name of Borrower
(or its Affiliate) such action as Lender may at any time determine to be necessary
or advisable to cure any default under any Swap Contract or to protect the
rights of Borrower (or its Affiliate) or Swap Counterparty thereunder;
provided, however, that before the occurrence of a Default under this
Agreement, Lender shall give prior 


i





written notice to Borrower before taking any such action. For this
purpose, Borrower hereby constitutes Lender its true and lawful
attorney-in-fact with full power of substitution, which power of attorney is
coupled with an interest and irrevocable, to exercise, at the election of
Lender, any and all rights and remedies of Borrower (or its Affiliate) under
the Swap Contract, including making any payments thereunder and consummating
any transactions contemplated thereby, and to take any action that Lender may
deem proper in order to collect, assert or enforce any claim, right or title,
in and to the Swap Contract hereby assigned and conveyed, and generally to take
any and all such action in relation thereto as Lender shall deem advisable.
Lender shall not incur any liability if any action so taken by Lender or on its
behalf shall prove to be inadequate or invalid. Borrower expressly understands
and agrees that Lender is not hereby assuming any duties or obligations of
Borrower (or its Affiliate) to make payments to Swap Counterparty under any
Swap Contract or under any other Loan Document. Such payment duties and
obligations remain the responsibility of Borrower (or its Affiliate)
notwithstanding any language in this Agreement.


ii





NOTE


	
  
 	
  
 
	
 $50,000,000
 	
 October 26, 2010
 


                    FOR
VALUE RECEIVED, ACADIA CORTLANDT LLC (“Borrower”, whether one or more) hereby
promises to pay to the order of Bank of America, N.A. (“Lender”) under that
certain Loan Agreement (defined below) among Borrower, Bank of America N.A., a
national banking association and administrative agent (together with any and
all of its successors and assigns, “Administrative Agent”) for the benefit of
Lenders from time to time a party to that certain Amended and Restated Loan
Agreement (the “Loan Agreement”) dated October 26, 2010 of even date
herewith, without offset, in immediately available funds in lawful money of the
United States of America, at Administrative Agent’s Office as defined in the
Loan Agreement, the principal sum of Fifty Million Dollars ($50,000,000) (or
the unpaid balance of all principal advanced against this Note, if that amount
is less), together with interest on the unpaid principal balance of this Note
from day to day outstanding as hereinafter provided.


          1. Note;
Interest; Payment Schedule and Maturity Date. This Note is one of the
Initial Advance Notes referred to in Loan Agreement and is entitled to the
benefits thereof. The entire principal balance of this Note then unpaid shall
be due and payable at the times as set forth in the Loan Agreement. Accrued
unpaid interest shall be due and payable at the times and at the interest rate
as set forth in the Loan Agreement until all principal and accrued interest
owing on this Note shall have been fully paid and satisfied. Any amount not
paid when due and payable hereunder shall, to the extent permitted by
applicable Law, bear interest and if applicable a late charge as set forth in
the Loan Agreement.


          2. Security;
Loan Documents. The security for this Note includes a Mortgage, Assignment
of Leases and Rents and Security Agreement in the amount of $50,000,000 (which,
as it may have been or may be amended, restated, modified or supplemented from
time to time, is herein called the “Mortgage”) dated October 26, 2010 from
Borrower to Administrative Agent covering certain property in Cortlandt,
Westchester County, New York described therein (the “Property”). This Note, the
Mortgage, the Loan Agreement and all other documents now or hereafter securing,
guaranteeing or executed in connection with the loan evidenced by this Note
(the “Loan”), are, as the same have been or may be amended, restated, modified
or supplemented from time to time, herein sometimes called individually a “Loan
Document” and together the “Loan Documents”.


          3. Defaults.


                    (a)
It shall be a default (“Default”) under this Note and each of the other Loan
Documents if (i) any principal, interest or other amount of money due under
this Note is not paid in full when due, regardless of how such amount may have
become due; (ii) any covenant, agreement, condition, representation or warranty
herein or in any other Loan Documents is not fully and timely performed,
observed or kept; or (iii) there shall occur any default or event of default
under the Mortgage or any other Loan Document. Upon the occurrence of a
Default, Administrative Agent on behalf of Lenders shall have the rights to
declare the unpaid principal balance and accrued but unpaid interest on this
Note, and all other amounts due hereunder and





under the other Loan Documents, at once due and payable (and upon such
declaration, the same shall be at once due and payable), to foreclose any liens
and security interests securing payment hereof and to exercise any of its other
rights, powers and remedies under this Note, under any other Loan Document, or
at Law or in equity.


                    (b)
All of the rights, remedies, powers and privileges (together, “Rights”) of
Administrative Agent on behalf of Lenders provided for in this Note and in any
other Loan Document are cumulative of each other and of any and all other
Rights at Law or in equity. The resort to any Right shall not prevent the
concurrent or subsequent employment of any other appropriate Right. No single
or partial exercise of any Right shall exhaust it, or preclude any other or
further exercise thereof, and every Right may be exercised at any time and from
time to time. No failure by Administrative Agent or Lenders to exercise, nor delay
in exercising any Right, including but not limited to the right to accelerate
the maturity of this Note, shall be construed as a waiver of any Default or as
a waiver of any Right. Without limiting the generality of the foregoing
provisions, the acceptance by Lender from time to time of any payment under
this Note which is past due or which is less than the payment in full of all
amounts due and payable at the time of such payment, shall not (i) constitute a
waiver of or impair or extinguish the right of Administrative Agent or Lenders
to accelerate the maturity of this Note or to exercise any other Right at the
time or at any subsequent time, or nullify any prior exercise of any such
Right, or (ii) constitute a waiver of the requirement of punctual payment and
performance or a novation in any respect.


                    (c)
If any holder of this Note retains an attorney in connection with any Default
or at maturity or to collect, enforce or defend this Note or any other Loan
Document in any lawsuit or in any probate, reorganization, bankruptcy,
arbitration or other proceeding, or if Borrower sues any holder in connection
with this Note or any other Loan Document and does not prevail, then Borrower
agrees to pay to each such holder, in addition to principal, interest and any
other sums owing to Lenders hereunder and under the other Loan Documents, all
costs and expenses incurred by such holder in trying to collect this Note or in
any such suit or proceeding, including, without limitation, attorneys’ fees and
expenses, investigation costs and all court costs, whether or not suit is filed
hereon, whether before or after the Maturity Date, or whether in connection
with bankruptcy, insolvency or appeal, or whether collection is made against
Borrower or any guarantor or endorser or any other person primarily or
secondarily liable hereunder.


          4. Heirs,
Successors and Assigns. The terms of this Note and of the other Loan
Documents shall bind and inure to the benefit of the heirs, devisees,
representatives, successors and assigns of the parties. The foregoing sentence
shall not be construed to permit Borrower to assign the Loan except as
otherwise permitted under the Loan Documents. As further provided in the Loan
Agreement, a Lender may, at any time, sell, transfer, or assign all or a
portion of its interest in this Note, the Mortgage and the other Loan
Documents, as set forth in the Loan Agreement.


          5. General
Provisions. Time is of the essence with respect to Borrower’s obligations
under this Note. If more than one person or entity executes this Note as
Borrower, all of said parties shall be jointly and severally liable for payment
of the indebtedness evidenced hereby. Borrower and all sureties, endorsers,
guarantors and any other party now or hereafter liable for


2





the payment of this Note in whole or in part, hereby severally (a)
waive demand, presentment for payment, notice of dishonor and of nonpayment,
protest, notice of protest, notice of intent to accelerate, notice of
acceleration and all other notices (except any notices which are specifically
required by this Note or any other Loan Document), filing of suit and diligence
in collecting this Note or enforcing any of the security herefor; (b) agree to
any substitution, subordination, exchange or release of any such security or
the release of any party primarily or secondarily liable hereon; (c) agree that
neither Administrative Agent nor any Lender shall be required first to
institute suit or exhaust its remedies hereon against Borrower or others liable
or to become liable hereon or to perfect or enforce its rights against them or
any security herefor; (d) consent to any extensions or postponements of time of
payment of this Note for any period or periods of time and to any partial
payments, before or after maturity, and to any other indulgences with respect
hereto, without notice thereof to any of them; and (e) submit (and waive all
rights to object) to non-exclusive personal jurisdiction of any state or
federal court sitting in the city and county, and venue in the city or county,
in which payment is to be made as specified in the first paragraph of Page 1 of
this Note, for the enforcement of any and all obligations under this Note and
the Loan Documents; (f) waive the benefit of all homestead and similar
exemptions as to this Note; (g) agree that their liability under this Note
shall not be affected or impaired by any determination that any security
interest or lien taken by Lender to secure this Note is invalid or unperfected;
and (h) hereby subordinate any and all rights against Borrower and any of the
security for the payment of this Note, whether by subrogation, agreement or
otherwise, until this Note is paid in full. A determination that any provision
of this Note is unenforceable or invalid shall not affect the enforceability or
validity of any other provision and the determination that the application of
any provision of this Note to any person or circumstance is illegal or
unenforceable shall not affect the enforceability or validity of such provision
as it may apply to other persons or circumstances. This Note may not be amended
except in a writing specifically intended for such purpose and executed by the
party against whom enforcement of the amendment is sought. Captions and
headings in this Note are for convenience only and shall be disregarded in
construing it. THIS NOTE, AND ITS VALIDITY, ENFORCEMENT AND INTERPRETATION,
SHALL BE GOVERNED BY NEW YORK LAW (WITHOUT REGARD TO ANY CONFLICT OF LAWS
PRINCIPLES) AND APPLICABLE UNITED STATES FEDERAL LAW.


          6. Notices.
Any notice, request, or demand to or upon Borrower or Lender shall be deemed to
have been properly given or made when delivered in accordance with the Loan
Agreement.


          7. No
Usury. It is expressly stipulated and agreed to be the intent of Borrower,
Administrative Agent and all Lenders at all times to comply with applicable
state Law or applicable United States federal Law (to the extent that it
permits a Lender to contract for, charge, take, reserve, or receive a greater
amount of interest than under state Law) and that this Section shall control
every other covenant and agreement in this Note and the other Loan Documents.
If applicable state or federal Law should at any time be judicially interpreted
so as to render usurious any amount called for under this Note or under any of
the other Loan Documents, or contracted for, charged, taken, reserved, or
received with respect to the Loan, or if Administrative Agent’s exercise of the
option to accelerate the Maturity Date, or if any prepayment by Borrower
results in Borrower having paid any interest in excess of that permitted by
applicable Law, then it is Administrative Agent’s and each Lender’s express
intent that all 


3





excess amounts theretofore collected by Administrative Agent or any
Lender shall be credited on the principal balance of this Note and all other
indebtedness and the provisions of this Note and the other Loan Documents shall
immediately be deemed reformed and the amounts thereafter collectible hereunder
and thereunder reduced, without the necessity of the execution of any new
documents, so as to comply with the applicable Law, but so as to permit the
recovery of the fullest amount otherwise called for hereunder or thereunder.
All sums paid or agreed to be paid to Lenders for the use, forbearance, or
detention of the Loan shall, to the extent permitted by applicable Law, be
amortized, prorated, allocated, and spread throughout the full stated term of
the Loan until payment in full so that the rate or amount of interest on
account of the Loan does not exceed the maximum lawful rate from time to time
in effect and applicable to the Loan for so long as the Loan is outstanding.


                    THE
LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.


                    THERE
ARE NO ORAL AGREEMENTS BETWEEN THE PARTIES. 


[Remainder of page intentionally left blank]


4





                    IN
WITNESS WHEREOF, Borrower has duly executed this Note under seal as of the date
first above written.


	
  
 	
  
 	
  
 
	
  
 	
 ACADIA
 CORTLANDT LLC, a Delaware limited
 
	
  
 	
 liability
 company
 
	
  
 	
  
 
	
  
 	
 By 
 	
 /s/ Robert
 Masters
 
	
  
 	
  
 	

 
 
	
  
 	
  
 	
 Robert
 Masters
 
	
  
 	
  
 	
 Senior Vice
 President
 









NOTE CONSOLIDATION AND MODIFICATION AGREEMENT


                    NOTE
CONSOLIDATION AND MODIFICATION AGREEMENT made as of the 26th day of October,
2010 by and between BANK OF AMERICA, N.A., as Administrative Agent
(“Administrative Agent”), pursuant to the Loan Agreement defined below, having
an office at One Bryant Park, 35th Floor, New York, New York 10036 (“Lender”),
and ACADIA CORTLANDT LLC, a Delaware limited liability company having an
address at c/o Acadia Realty Trust, 1311 Mamaroneck Avenue, Suite 260, White
Plains, New York 10605 (“Mortgagor”).


                    Administrative
Agent, on behalf of Lenders (as defined below), is now the present owner and
holder of certain note(s) (as the same may have been modified, collectively the
“Notes”) secured by the mortgages more particularly described on Exhibit A
hereto (collectively, the “Mortgages”). The Note evidences up to an aggregate
maximum outstanding principal indebtedness of $50,000,000.


                    Administrative
Agent, on behalf of Lender, acquired the Notes pursuant to that certain Amended
and Restated Loan Agreement dated as of the date hereof (the “Loan Agreement”)
by and between Administrative Agent, Borrower, Bank of America, N.A., as Lender
(“BofA”; BofA, together with each other entity which may become a Lender
pursuant to the Loan Agreement, collectively, “Lenders”).


                    Administrative
Agent, on behalf of Lenders, the holder of the Notes, and Borrower, the owner
of the premises encumbered by the Mortgage, have agreed to consolidated, modify
and restate the terms of the Note in the manner hereinafter set forth.


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





                    1.
Borrower hereby acknowledges that on the date hereof the outstanding principal
balance of the Notes is $50,000,000 (the “Indebtedness”).


                    2.
All of the terms, covenants and conditions of the Notes are hereby
consolidated, modified and restated in their entirety on the terms and
conditions set forth in the Loan Agreement; and the Notes as consolidated,
modified and restated in their entirety shall be evidenced by one or more
replacement notes in the aggregate principal amount of $50,000,000, issued as
an “Initial Note” under the Loan Agreement (collectively, the “Replacement
Note”).


                    3.
Borrower acknowledges that it is indebted to Lender in accordance with the
Replacement Note and assumes, covenants and agrees to pay the Indebtedness in
accordance with the terms, covenants and conditions of the Loan Agreement and
the Replacement Note.


                    4.
Borrower warrants and represents that as of the date hereof there exist no
counterclaims, offsets or defenses with respect to its obligations under the
Replacement Note.


                    5.
The terms and provisions hereof shall be binding upon and inure to the benefit
of the parties hereto, their heirs, representatives, successors and assigns.


                    6.
This Agreement and the rights and obligations of the parties hereto shall in
all respects be governed by, and construed and enforced in accordance with, the
laws of the State of New York.


                    7.
This Agreement may be executed in counterparts, each of which shall be an
original, but all of which together shall constitute one and the same
instrument.


2





                    IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.


	
  
 	
  
 	
  
 
	
  
 	
 BANK OF AMERICA,
 N.A.
 
	
  
 	
  
 	
  
 
	
  
 	
 By
 	
 /s/ Gregory
 Egli
 
	
  
 	
  
 	

 
 
	
  
 	
  
 	
 Gregory Egli
 
	
  
 	
  
 	
 Senior Vice
 President
 
	
  
 	
  
 	
  
 
	
  
 	
 ACADIA
 CORTLANDT LLC, a Delaware limited liability company
 
	
  
 	
  
 	
  
 
	
  
 	
 By
 	
 /s/ Robert
 Masters
 
	
  
 	
  
 	

 
 
	
  
 	
  
 	
 Robert
 Masters
 
	
  
 	
  
 	
 Senior Vice
 President
 









EXHIBIT A


Mortgage Schedule


	
  
 	
  
 
	
 1.
 	
 Mortgage,
 Assignment of Leases and Rents and Security Agreement dated as of
 July 29, 2009 from Acadia Cortlandt LLC to Bank of America, N.A., as
 Administrative Agent, in the amount of $45,000,000, which was recorded on
 August 28, 2009 in the office of the Westchester County Clerk, New York
 (the “Office”) under Serial Number DA12794 (Control Number 492240207) and
 upon which a mortgage recording tax of $585,000 was paid (current outstanding
 principal $44,558,467.91).
 
	
  
 	
  
 
	
 2.
 	
 Mortgage,
 Assignment of Leases and Rents and Security Agreement dated as of
 July 29, 2009 from Acadia Cortlandt LLC to Bank of America, N.A., as
 Administrative Agent, in the amount of $2,000,000, which was recorded in the
 Office on August 28, 2009 in under Serial Number DA12797 (Control Number
 492240215) and upon which a mortgage recording tax of $26,000 was paid
 (current outstanding principal $1,994,569.13).
 
	
  
 	
  
 
	
 3.
 	
 Mortgage and
 Security Agreement dated as of the date hereof from Acadia Cortlandt LLC to
 Bank of America, N.A., as Administrative Agent, in the amount of
 $3,446,962.96 to be recorded in the Office immediately prior hereto and upon
 which a mortgage recording tax will be duly paid.
 









NOTE


	
  
 	
  
 
	
 $3,446,962.96
 	
 As
 of October 26, 2010
 


                    FOR
VALUE RECEIVED, the undersigned, ACADIA CORTLANDT LLC, a Delaware limited
liabiltiy company (“Maker”), promises to pay to the order of BANK OF AMERICA, N.A. (“Lender”), at its
office located at One Bryant Park, 35th Floor, New York, New York 10036, or at such other place as may be designated
in writing by Lender, the principal sum of Three Million Four Hundred Forty-Six
Thousand Nine Hundred Sixty-Two and 96/100 Dollars ($3,446,962.96), in lawful
money of the United States of America, with interest thereon to be computed
from the date hereof at a rate of six percent (6%) per annum.


                    IT
IS HEREBY EXPRESSLY AGREED, that the said principal sum secured by this Note
shall become due at the option of the holder thereof ON DEMAND; also, that all
of the covenants, conditions and agreements contained in the mortgage securing
this Note are hereby made part of this instrument.


                    Presentment
for payment, notice of dishonor, protest and notice of protest are hereby
waived.


                    This
Note is secured by that certain Mortgage dated of even date herewith (the
“Mortgage”), given by Maker, as mortgagor, to Lender, as mortgagee, on property
situated in the State of New York, County of New York as more particularly
described therein.


                    This
Note may not be changed or terminated orally.


                    Maker
(and the undersigned representative of Maker, if any) represents that Maker has
full power, authority and legal right to execute and deliver this Note and the
Mortgage and that this Note and the Mortgage constitute valid and binding
obligations of Maker.


                    This
Note is secured by, among other things, a Mortgage and Security Agreement dated
as of the date hereof from Maker to Lender, which specifies various defaults
upon the happening of which all sums owing on this Note may be declared
immediately due and payable.


                    This
Note shall be governed and construed in accordance with the laws of the State
of New York and the applicable laws of the United States of America.


[Remainder of page intentionally left blank]





                    Maker
has duly executed this Note as of the day and year first above written.


	
  
 	
  
 	
  
 
	
  
 	
 MAKER:
 
	
  
 	
  
 
	
  
 	
 ACADIA
 CORTLANDT LLC, a Delaware limited liability company
 
	
  
 	
  
 
	
  
 	
 By 
 	
 /s/ Robert
 Masters
 
	
  
 	
  
 	

 
 
	
  
 	
  
 	
 Robert
 Masters
 
	
  
 	
  
 	
 Senior Vice
 President
 
	
  
 	
  
 	
  
 
	
 Location of
 Premises:
 	
 Address of
 Maker:
 
	
  
 	
  
 	
  
 
	
 Cortlandt
 Towne Center Shopping Center,
Town of Cortlandt, New York
 	
 c/o Acadia
 Realty Trust

 1311 Mamaroneck Avenue, Suite 260,

 White Plains, New York 10605
 













	
  
 	
  
 
	
 SECTION:
 	
 24.10
 
	
 BLOCK:
 	
 1
 
	
 LOTS:
 	
 1, 1.2, 2
 and 3
 
	
 Premises:
 	
 Cortlandt
 Towne Center Shopping Center, Town of Cortlandt
 






	
  
 
	

 
 
	
  
 
	
 As of October 26, 2010
 
	
  
 
	
 MORTGAGE CONSOLIDATION AND MODIFICATION AGREEMENT
 
	
  
 
	
 by and between
 
	
  
 
	
 ACADIA CORTLANDT LLC,
 
	
 as Mortgagor
 
	
  
 
	
 and
 
	
  
 
	
 BANK OF AMERICA, N.A.,
 
	
 a
 national banking association, as Administrative Agent,
 
	
 as Mortgagee
 
	
  
 
	

 
 
	
  
 
	
 This instrument prepared by, and after recording please return to:
 
	
  
 
	
 Schiff Hardin LLP
 
	
 900 Third Avenue, 23rd Floor
 
	
 New York, New York 10022
 
	
 Attention: Paul G. Mackey, Esq.
 









MORTGAGE CONSOLIDATION AND MODIFICATION
AGREEMENT


                    MORTGAGE
CONSOLIDATION AND MODIFICATION AGREEMENT (this “Agreement”) made as of the 26th
day of October, 2010 by and between BANK OF AMERICA, N.A., as Administrative
Agent, having an office at One Bryant Park, 35th Floor, New York, New York
10036 (“Mortgagee”), and ACADIA CORTLANDT LLC, a Delaware limited liability
company having an address c/o Acadia Realty Trust, 1311 Mamaroneck Avenue,
Suite 260, White Plains, New York 10605 (“Mortgagor”).


WITNESSETH: 


                    WHEREAS,
Mortgagee is now the lawful owner and holder of the mortgages (collectively,
the “Mortgage”) more particularly described in Exhibit A attached hereto and
made a part hereof, and of the notes (collectively, the “Note”) and other
obligations secured thereby;


                    WHEREAS,
the maximum outstanding principal amount which is or under any contingency may
be secured by the Mortgage is $50,000,000 (the “Indebtedness”), plus interest
thereon and all additional interest and late payment and prepayment charges in
respect thereof, plus all amounts expended by Mortgagee following a default
thereunder in respect of insurance premiums and real estate taxes, and all
legal costs or expenses of collection of the note(s) secured thereby or of the
defense or prosecution of the rights and lien created thereby;


                    WHEREAS,
the Mortgage is presently a valid lien on all of the real property described in
Schedule A attached hereto and made a part hereof (the “Premises”);





                    WHEREAS,
Mortgagor is the lawful owner of the Premises; and


                    WHEREAS,
Mortgagee and Mortgagor have agreed to consolidate, modify, amend and restated
the Mortgage as a single first lien on the entire Premises and to modify the
terms of the Mortgage in the manner hereinafter set forth;


                    NOW,
THEREFORE, in consideration of the premises and the mutual agreements herein
expressed, the parties hereto covenant and agree as follows:


                    1.
Mortgagor hereby assumes the payment and performance of all obligations,
conditions and covenants under, and agrees to be bound by all of the terms of,
the Mortgage, as herein modified. The lien of the Mortgage is hereby
consolidated and modified to encumber all of the “Mortgaged Property” (as such
term is defined in the Mortgage, as modified hereby), so that together they
shall hereafter constitute in law but one first mortgage, a valid and enforceable single lien upon the
Premises, securing the Indebtedness, together with interest accrued and to
accrue thereon and all other sums secured thereby.


                    2.
Mortgagor hereby assumes and agrees to pay the Indebtedness and interest
thereon at the rate(s) of interest and on the terms provided for the payment of
principal and interest in the Note, as consolidated and modified by that
certain note consolidation and modification agreement, dated the date hereof,
between Mortgagee and Mortgagor (the “Note Agreement”).


                    3.
The Mortgage is hereby consolidated, amended and restated in its entirety by Exhibit
B attached hereto and made a part hereof including any exculpatory provisions contained in said Exhibit B,
and Mortgagor hereby agrees to comply with and be bound by all of the terms,
covenants and conditions set forth in said Exhibit B.


2





                    4.
Mortgagor hereby certifies that this Agreement secures the same indebtedness
evidenced by the Note, as consolidated and modified by the Note Agreement, and
secured by the Mortgage, as consolidated and modified hereby, and secures no
new or further indebtedness or obligation.


                    5.
Mortgagor represents and warrants that there exist no defenses, offsets or
counterclaims with respect to its obligations under the Mortgage, as
consolidated and modified hereby, or under the Note, as consolidated and
modified by the Note Agreement, including its obligation for the payment of the
Indebtedness.


                    6.
The terms and provisions hereof shall be binding upon and inure to the benefit
of the parties hereto and their heirs, representatives, successors and assigns.


                    7.
This Agreement and the rights and obligations of the parties hereto shall in
all respects be governed by, and construed and enforced in accordance with, the
laws of the State of New York (without giving effect to New York’s choice of
law principles).


                    8.
This Agreement may be executed in multiple counterparts, each of which shall
constitute an original and together which shall constitute but one and the same
instrument.


                    9.
The information set forth on the cover hereof is incorporated herein.


[Remainder of page intentionally left blank.]


3





                    IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered by each of
the parties hereto as of the day and year first above written.


	
  
 	
  
 	
  
 
	
  
 	
 BANK OF
 AMERICA, N.A.
 
	
  
 	
 (as a Lender
 and as Administrative Agent)
 
	
  
 	
  
 
	
  
 	
 By 
 	
 /s/ Gregory
 Egli
 
	
  
 	
  
 	

 
 
	
  
 	
  
 	
 Gregory Egli
 
	
  
 	
  
 	
 Senior Vice
 President
 
	
  
 	
  
 	
  
 
	
  
 	
 ACADIA
 CORTLANDT LLC, a Delaware

 limited liability company
 
	
  
 	
  
 	
  
 
	
  
 	
 By
 	
 /s/ Robert
 Masters
 
	
  
 	
  
 	

 
 
	
  
 	
  
 	
 Robert
 Masters
 
	
  
 	
  
 	
 Senior Vice
 President
 













	
  
 	
  
 
	
 STATE OF NEW
 YORK
 	
 )
 
	
  
 	
 : ss.:
 
	
 COUNTY OF
 NEW YORK
 	
 )
 


                    On
the 25th day of October in the year 2010, before me, the undersigned, a notary
public in and for said state, personally appeared Gregory Egli, personally
known to me or proved to me on the basis of satisfactory evidence to be the
individual(s) whose name(s) is (are) subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.


	
  
 	
  
 	
  
 
	
  
 	
  
 	
 /s/
 Elizabeth R. Cava
 
	
  
 	
  
 	

 
 
	
  
 	
  
 	
 Notary
 Public
 
	
  
 	
  
 	
  
 
	
 My
 Commission Expires:
 	
  
 	
 Elizabeth R.
 Cava
 
	
  
 	
  
 	
 Notary
 Public, State of New York
 
	
  
 	
  
 	
 No.
 30-01CA4712233
 
	

 
 	
  
 	
 Qualified in
 Nassau County
 
	
  
 	
  
 	
 Certified
 Filed in New York County
 
	
  
 	
  
 	
 Commission
 Expires February 28, 2011
 













	
  
 	
  
 
	
 STATE OF NEW
 YORK
 	
 )
 
	
  
 	
 : ss.:
 
	
 COUNTY OF
 WESTCHESTER
 	
 )
 


                    On
the 22nd day of October in the year 2010, before me, the undersigned, a notary
public in and for said state, personally appeared Robert Masters, personally
known to me or proved to me on the basis of satisfactory evidence to be the
individual(s) whose name(s) is (are) subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.


	
  
 	
  
 	
  
 
	
  
 	
  
 	
 /s/ Debra
 Leibler Jones
 
	
  
 	
  
 	

 
 
	
  
 	
  
 	
 Notary
 Public
 
	
  
 	
  
 	
  
 
	
 My
 Commission Expires:
 	
  
 	
 Debra
 Leibler Jones
 
	
  
 	
  
 	
 Notary
 Public, State of New York
 
	
  
 	
  
 	
 No.
 01LE6005994
 
	

 
 	
  
 	
 Qualified in
 Dutchess County
 
	
  
 	
  
 	
 Commission
 Expires April 20, 2014
 









SCHEDULE A


Property Description


	
  
 
	
 ALL THAT CERTAIN PARCEL OF LAND SITUATE IN THE TOWN OF CORTLANDT,
 COUNTY OF WESTCHESTER AND STATE OF NEW YORK THAT IS A PORTION OF THOSE LANDS
 DESIGNATED PARCEL 1, PARCEL 2A AND PARCEL 2B ON THAT CERTAIN “RESUBDIVISION
 PLAT OF FILED MAP NO. 17837 SECTION 1 MID-WESTCHESTER INDUSTRIAL PARK, INC.,”
 WHICH WAS FILED IN THE WESTCHESTER COUNTY CLERK’S OFFICE ON OCTOBER 15, 1984
 AS MAP NO. 21741 THAT IS BOUNDED AND DESCRIBED AS FOLLOWS:
 
	
  
 
	
 BEGINNING AT A POINT ON THE SOUTHEASTERLY LINE OF U.S. ROUTE 6 (AKA 5
 MILE TURNPIKE AND/OR EAST MAIN STREET AND/OR STATE HIGHWAY 1309) WHERE IT IS
 MET BY THE LINE DIVIDING THE LANDS HEREIN DESCRIBED ON THE NORTHEAST FROM
 LANDS DESIGNATED LOT NO. 21 ON THAT CERTAIN “MAP NO. 1 GULL MANOR..,” WHICH
 WAS FILED IN THE WESTCHESTER COUNTY CLERK’S OFFICE ON MARCH 25, 1954 AS MAP
 NO. 8930, WHICH POINT OCCUPIES COORDINATE POSITION
 
	
  
 
	
 N 476,045.23 (Y)
 
	
 E 625,146.49 (X) OF THE NEW YORK STATE COORDINATE SYSTEM, EAST ZONE;
 
	
  
 
	
 THENCE FROM THE SAID POINT OF BEGINNING NORTHEASTERLY ALONG THE
 SOUTHEASTERLY LINE OF U.S. ROUTE 6 NORTH 31° 31’ 51” EAST 202.41 FEET AND TO
 A POINT AT THE SOUTHWESTERLY LINE OF LOT NO. 4 SHOWN ON THAT CERTAIN MAP
 ENTITLED “SECTION NO. 1 MID-WESTCHESTER INDUSTRIAL PARK” WHICH WAS FILED IN
 THE WESTCHESTER COUNTY CLERK’S OFFICE ON OCTOBER 16, 1972 AS MAP NO. 17837; 
 
	
  
 
	
 THENCE ALONG THE SOUTHWESTERLY, SOUTHEASTERLY AND NORTHEASTERLY LINES
 OF LOT NO. 4 SHOWN ON FILED MAP NO. 17837 THE FOLLOWING COURSES:
 
	
  
 
	
 SOUTH 54° 41’ 49” EAST 400.00 FEET;
 
	
 NORTH 35° 15’ 51” EAST 200.00 FEET;
 
	
 NORTH 54° 41’ 49” WEST 201.75 FEET TO A POINT AT THE LINE OF LANDS
 NOW OR FORMERLY OF MOBIL CENTERS, INC;
 
	
  
 
	
 THENCE ALONG THE SAID MOBIL CENTERS, INC. LANDS:
 
	
  
 
	
 NORTH 35° 15’ 51” EAST 150.02 FEET AND; 
 
	
 NORTH 54° 41’ 49” WEST 174.98 FEET TO A POINT;
 
	
  
 
	
 THENCE STILL ALONG THE SAID LANDS OF MOBIL CENTERS, INC. WESTERLY ON
 A TANGENT CURVE TO THE LEFT, THE CENTRAL ANGLE OF
 













	
  
 
	
 WHICH IS 90° 02’ 20”, THE RADIUS OF WHICH 25.00 FEET FOR 39.29 FEET
 TO ANOTHER POINT ON THE SAID SOUTHEASTERLY LINE OF U.S. ROUTE 6;
 
	
  
 
	
 THENCE NORTHEASTERLY ONCE AGAIN ALONG THE SAID SOUTHEASTERLY LINE OF
 U.S. ROUTE 6; 
 
	
  
 
	
 NORTH 35° 15’ 51” EAST 103.05 FEET AND;
 
	
 NORTH 34° 16’ 11” EAST 16.52 FEET TO A POINT AT THE LINE OF LANDS NOW
 OR FORMERLY OF W.W. GEIS, JR.;
 
	
  
 
	
 THENCE ALONG AND AROUND THE SAID W.W GEIS, JR. LANDS THE FOLLOWING,
 FIRST TURNING ABOUT AND SOUTHERLY ON A TANGENT CURVE TO THE LEFT, THE CENTRAL
 ANGLE OF WHICH IS 88° 58’ 00”, THE RADIUS OF WHICH IS 25.00 FEET FOR 38.82
 FEET AND THEN FOLLOWING COURSES:
 
	
  
 
	
 SOUTH 54° 41’ 49” EAST 187.41 FEET;
 
	
 SOUTH 87° 58’ 31” EAST 50.19 FEET;
 
	
 NORTH 34° 14’ 31” EAST 293.26 FEET AND;
 
	
 NORTH 55° 45’ 29” WEST 248.82 FEET TO STILL ANOTHER POINT ON THE
 SOUTHEASTERLY LINE OF U.S. ROUTE 6;
 
	
  
 
	
 THENCE NORTHEASTERLY ONCE AGAIN ALONG THE SAID SOUTHEASTERLY LINE OF
 U.S. ROUTE 6;
 
	
  
 
	
 NORTH 38° 26’ 11” EAST 91.89 FEET AND;
 
	
  
 
	
 NORTH 36° 40’ 11” EAST 175.50 FEET TO A POINT AT THE LINE LAND NOW OR
 FORMERLY OF HOME DEPOT U.S.A., INC. LANDS, THE FOLLOWING FIRST
 
	
  
 
	
 SOUTH 53° 24’ 23’ EAST 28.04 FEET
 
	
  
 
	
 THEN ON A TANGENT CURVE TO THE RIGHT, THE CENTRAL ANGLE OF WHICH IS
 44° 59’ 45”, THE RADIUS OF WHICH IS 100.00 FEET FOR 78.53 FEET,
 
	
  
 
	
 THEN SOUTH 08° 24’ 38” EAST 170.39 FEET
 
	
  
 
	
 THEN ON A TANGENT CURVE TO THE RIGHT, THE CENTRAL ANGLE OF WHICH IS
 42° 53’ 52”, THE RADIUS OF WHICH IS 330.00 FEET FOR 245.35 FEET, AND THEN THE
 FOLLOWING COURSES:
 
	
  
 
	
 SOUTH 34° 11’ 14” WEST 7.14 FEET;
 
	
 SOUTH 42° 10’ 35” EAST 571.35 FEET;
 
	
 NORTH 81° 40’ 00” EAST 752.50 FEET;
 
	
 NORTH 42° 10’ 35” WEST 546.00 FEET;
 
	
 SOUTH 47° 49’ 25” WEST 12.00 FEET;
 
	
 NORTH 42° 10’ 35” WEST 334.49 FEET;
 
	
 NORTH 47° 49’ 25” EAST 64.36 FEET;
 


2









	
  
 
	
 NORTH 42° 10’ 35” WEST 551.64 FEET TO A POINT ON THE SOUTHEASTERLY
 LINE OF U.S. ROUTE 6; 
 
	
  
 
	
 THENCE NORTHEASTERLY ALONG THE SOUTHEASTERLY LINE OF U.S. ROUTE 6 THE
 FOLLOWING COURSES:
 
	
  
 
	
 NORTH 43° 07’ 31” EAST 240.77 FEET;
 
	
 NORTH 46° 43’ 08” EAST 200.86 FEET;
 
	
 NORTH 47° 51’ 46” EAST 169.07 FEET;
 
	
 NORTH 54° 16’ 42” EAST 77.64 FEET;
 
	
 NORTH 43° 47’ 18” EAST 103.43 FEET;
 
	
 NORTH 06° 57’ 25” EAST 7.49 FEET;
 
	
 NORTH 44° 52’ 56” EAST 141.98 FEET;
 
	
 NORTH 56° 38’ 06” EAST 194.10 FEET;
 
	
 NORTH 47° 40’ 06” EAST 31.98 FEET TO A POINT AT THE LINE DIVIDING
 PARCEL NO. 2A, ON THE SOUTHWEST FROM PARCEL NO. 1, ON THE NORTHEAST, BOTH AS
 SHOWN ON SAID FILED MAP NO. 21741, WHICH POINT OCCUPIES COORDINATE POSITION
 
	
  
 
	
 N 478,107.32 (Y)
 
	
 E 626,930.25 (X) OF THE NEW YORK STATE COORDINATE SYSTEM, EAST ZONE;
 
	
  
 
	
 THENCE STILL ALONG THE SOUTHEASTERLY LINE OF U.S. ROUTE 6 THE
 FOLLOWING COURSES:
 
	
  
 
	
 NORTH 47° 40’ 06” EAST 15.49 FEET;
 
	
 NORTH 57° 07’ 47” EAST 41.34 FEET;
 
	
 NORTH 46° 37’ 24” EAST 65.92 FEET;
 
	
 NORTH 60° 47’ 16” EAST 135.27 FEET;
 
	
 NORTH 58° 29’ 38” EAST 200.48 FEET;
 
	
 NORTH 76° 26’ 07” EAST 65.57 FEET;
 
	
 NORTH 53° 06’ 18” EAST 114.53 FEET;
 
	
 NORTH 59° 20’ 46” EAST 157.01 FEET;
 
	
 NORTH 67° 37’ 05” EAST 102.26 FEET;
 
	
 NORTH 39° 31’ 22” EAST 47.05 FEET;
 
	
 NORTH 62° 09’ 00” EAST 123.28 FEET;
 
	
 NORTH 59° 26’ 00” EAST 57.40 FEET;
 
	
 NORTH 58° 13’ 00” EAST 81.60 FEET;
 
	
 NORTH 61° 59’ 00” EAST 41.60 FEET;
 
	
 NORTH 38° 58’ 00” EAST 17.42 FEET;
 
	
 NORTH 61° 26’ 39” EAST 147.75 FEET;
 
	
 NORTH 57° 24’ 50” EAST 100.18 FEET;
 
	
 NORTH 63° 24’ 40” EAST 64.74 FEET TO A POINT AT THE LINE OF LANDS NOW
 OR FORMERLY OF BERKO, WHICH POINT OCCUPIES COORDINATE POSITION
 
	
  
 
	
 N 478.912.07 (Y)
 


3









	
  
 
	
 E 628,275.78 (X) OF THE NEW YORK STATE COORDINATE SYSTEM, EAST ZONE;
 
	
  
 
	
 THENCE SOUTHERLY ALONG THE SAID BERKO LANDS AND CONTINUING ALONG
 LANDS NOW OR FORMERLY OF FELDMAN, NOW OR FORMERLY OF BERTINO, AND LANDS NOW
 OR FORMERLY OF MOHEGAN REALTY CO., THE FOLLOWING FIVE (5) COURSES AND
 DISTANCES:
 
	
  
 
	
 SOUTH 8° 21’ 49” EAST 184.14 FEET;
 
	
 SOUTH 7° 23’ 59” EAST 204.45 FEET;
 
	
 SOUTH 8° 27’ 49” EAST 457.05 FEET;
 
	
 SOUTH 7° 57’ 49” EAST 226.72 FEET;
 
	
 SOUTH 8° 03’ 49” EAST 841.87 FEET TO LANDS NOW OR FORMERLY OF BOGIN,
 WHICH POINT OCCUPIES COORDINATE POSITION
 
	
  
 
	
 N 477,016.99 (Y)
 
	
 E 628,545.67 (X) OF THE NEW YORK STATE COORDINATE SYSTEM, EAST ZONE;
 
	
  
 
	
 THENCE ALONG SAID LANDS ON A COURSE OF SOUTH 84° 45’ 51” WEST FOR A
 DISTANCE OF 565.62 FEET TO A POINT THAT IS A CORNER THEREOF, WHICH POINT IS
 AT THE SOUTHEASTERLY END OF THE LINE DIVIDING PARCEL NO. 2A, ON THE SOUTHWEST
 FROM PARCEL NO 1, ON THE NORTHEAST, BOTH AS SHOWN ON SAID FILED MAP 21741,
 WHICH POINT OCCUPIES COORDINATE POSITION
 
	
  
 
	
 N 476,965.38 (Y)
 
	
 E 627,982.41 (X) OF THE NEW YORK STATE COORDINATE SYSTEM, EAST ZONE;
 
	
  
 
	
 THENCE CONTINUING ALONG LANDS NOW OR FORMERLY OF BOGIN AND DEANIN ON
 A COURSE OF SOUTH 8° 44’ 49” EAST FOR A DISTANCE OF 775.84 FEET TO LANDS NOW
 OR FORMERLY OF MCKEEL; 
 
	
  
 
	
 THENCE ALONG THE SAID MCKEEL LANDS AND IN PART ALONG THE ORIGINAL
 CENTER LINE OF A BROOK AS THE SAID CENTER LINE APPEARS ON THAT CERTAIN MAP
 ENTITLED “SURVEY... MIDWESTCHESTER INDUSTRIAL PARK INC...,” WHICH WAS FILED
 IN THE WESTCHESTER COUNTY CLERK’S OFFICE ON JANUARY 24, 1969 ON MAP NO. 16581
 THE FOLLOWING COURSES AND DISTANCES:
 
	
  
 
	
 SOUTH 83° 29’ 51” WEST 1204.04 FEET;
 
	
 SOUTH 64° 31’ 01” WEST 35.43 FEET;
 
	
 SOUTH 87° 29’ 41” WEST 100.66 FEET; 
 
	
 SOUTH 79° 30’ 01” WEST 100.04 FEET;
 
	
 SOUTH 80° 21’ 21” WEST 99.99 FEET;
 
	
 SOUTH 82° 37’ 11” WEST 219.69 FEET;
 
	
 SOUTH 81° 10’ 01” WEST 102.96 FEET;
 
	
 SOUTH 74° 14’ 51” WEST 99.92 FEET;
 


4









	
  
 
	
 SOUTH 75° 42’ 31” WEST 81.58 FEET;
 
	
 SOUTH 73° 18’ 21” WEST 101.89 FEET;
 
	
 SOUTH 87° 12’ 21” WEST 100.12 FEET;
 
	
 SOUTH 89° 38’ 51” WEST 100.44 FEET;
 
	
 SOUTH 84° 23’ 51” WEST 107.95 FEET;
 
	
 SOUTH 81° 42’ 51” WEST 119.29 FEET;
 
	
 SOUTH 58° 38’ 31” WEST 47.83 FEET;
 
	
 SOUTH 48° 18’ 59” WEST 109.79 FEET AND;
 
	
 NORTH 68° 22’ 19” WEST 32.81 FEET TO A POINT AT THE LINE OF LANDS NOW
 OR FORMERLY OF SHELBY-COLERIDGE HOLDING CORP;
 
	
  
 
	
 THENCE ALONG THE SAID SHELBY-COLERIDGE HOLDING CORP. LANDS AND ALONG
 THE NORTHEASTERLY LINES OF LOT NO. 19 AND LOT 21 AS SHOWN ON THE
 AFOREMENTIONED “MAP NO. 1 GULL MANOR...’’ FILED MAP NO. 8930, THE FOLLOWING
 COURSES:
 
	
  
 
	
 NORTH 68° 14’ 09” WEST 17.28 FEET;
 
	
 SOUTH 89° 44’ 51” WEST 61.00 FEET; 
 
	
 NORTH 46° 00’ 09” WEST 54.45 FEET;
 
	
 NORTH 61° 11’ 09” WEST 72.08 FEET;
 
	
 NORTH 55° 43’ 09” WEST 93.25 FEET TO THE AFOREMENTIONED SOUTHEASTERLY
 LINE OF U.S. ROUTE 6 AND THE POINT OR PLACE OF BEGINNING.
 
	
  
 
	
 TOGETHER WITH THE BENEFITS AND SUBJECT TO THE BURDENS OF THE GRANT OF
 SANITARY SEWER EASEMENT MADE BY AND BETWEEN HARDEE’S AND MID-WESTCHESTER
 INDUSTRIAL PARK, INC. RECORDED IN LIBER 7137 PAGE 92.
 
	
  
 
	
 TOGETHER WITH THE BENEFITS OF THE EASEMENT RECORDED IN THE
 WESTCHESTER COUNTY CLERK’S LIBER 7099 OF DEEDS AT PAGE 228 AND REPEATED IN
 LIBER 7143 OF DEEDS AT PAGE 449 AND LIBER 7235 OF DEEDS AT PAGE 88.
 
	
  
 
	
 TOGETHER WITH THE BENEFITS OF THE DECLARATION AND GRANT OF RECIPROCAL
 EASEMENTS MADE BY CORTLANDT TOWN CENTER LIMITED PARTNERSHIP AND RECORDED IN
 THE WESTCHESTER COUNTY CLERK’S LIBER 11673 OF DEEDS AT PAGE 78.
 
	
  
 
	
 TOGETHER WITH THE BENEFITS OF THE RECIPROCAL EASEMENT AND OPERATION
 AGREEMENT MADE BY BETWEEN CORTLANDT TOWN CENTER LIMITED PARTNERSHIP AND HOME
 DEPOT U.S.A. INC. AND RECORDED IN THE WESTCHESTER COUNTY CLERK’S LIBER 11618
 OF DEEDS AT PAGE 1.
 


5





EXHIBIT A


Mortgage


	
  
 	
  
 
	
 1.
 	
 Mortgage, Assignment of Leases and Rents and Security Agreement dated
 as of July 29, 2009 from Acadia Cortlandt LLC to Bank of America, N.A.,
 as Administrative Agent, in the amount of $45,000,000, which was recorded on
 August 28, 2009 in the office of the Westchester County Clerk, New York
 (the “Office”) as Control Number 492240207 and upon which a mortgage
 recording tax of $585,000 was paid (current outstanding principal
 $44,558,467.91).
 
	
  
 	
  
 
	
 2.
 	
 Mortgage, Assignment of Leases and Rents and Security Agreement dated
 as of July 29, 2009 from Acadia Cortlandt LLC to Bank of America, N.A.,
 as Administrative Agent, in the amount of $2,000,000, which was recorded in
 the Office on August 28, 2009 as Control Number 492240215 and upon which
 a mortgage recording tax of $26,000 was paid (current outstanding principal
 $1,994,569.13).
 
	
  
 	
  
 
	
 3.
 	
 Mortgage and Security Agreement dated as of the date hereof from
 Acadia Cortlandt LLC to Bank of America, N.A., as Administrative Agent, in
 the amount of $3,446,962.96 to be recorded in the Office immediately prior
 hereto and upon which a mortgage recording tax in the amount of $44,811.00
 will be duly paid.
 









EXHIBIT B


Form of Amended and Restated Consolidated Mortgage












EXHIBIT B


	
  
 	
  
 
	
 SECTION:
 	
 24.10
 
	
 BLOCK:
 	
 1
 
	
 LOTS:
 	
 1, 1.2, 2
 and 3
 
	
 Premises:
 	
 Cortlandt
 Towne Center Shopping Center, Town of Cortlandt
 
	
  
 
	

 
 
	
  
 
	
 Date: As of October 26, 2010
 





	
  
 
	
 MORTGAGE, ASSIGNMENT OF LEASES
 
	
 AND RENTS AND SECURITY AGREEMENT
 
	
 (“this Mortgage”)
 
	
  
 
	
 FROM
 
	
  
 
	
 ACADIA CORTLANDT LLC,
 
	
 a limited liability company organized and existing under the laws

of
 Delaware
 
	
 (“Mortgagor”)
 






	
  
 	
  
 
	
 Address and
 Chief
 	
  
 
	
 Executive
 Office of Mortgagor:
 	
 c/o Acadia
 Realty Trust
 
	
  
 	
 1311
 Mamaroneck Avenue, Suite 260
 
	
  
 	
 White Plains,
 New York 10605
 






	
  
 
	
 TO
 
	
 BANK OF AMERICA, N.A.,
 
	
 a national banking association,
 
	
 as Administrative Agent
 
	
 (“Mortgagee”)
 






	
  
 	
  
 
	
 Address of
 Mortgagee:
 	
 One Bryant
 Park, 35th Floor
 
	
  
 	
 New York,
 New York 10036
 
	
  
 
	
 Mortgage Amount: $50,000,000
 
	
  
 
	

 
 






	
  
 
	
 This instrument prepared by, and after recording please return

to:
 
	
 Schiff Hardin LLP
 
	
 900 Third Avenue, 23rd Floor
 
	
 New York, New York 10022
 
	
 Attention: Paul G. Mackey,
 Esq.
 











THE AMOUNT OF THIS MORTGAGE IS $50,000,000.


MORTGAGE, ASSIGNMENT OF

LEASES AND RENTS, AND SECURITY AGREEMENT


          THIS
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS AND SECURITY AGREEMENT (this
“Mortgage”) is made as of the 26th day of October, 2010, by ACADIA CORTLANDT
LLC, a Delaware limited liability company, (“Mortgagor”), in favor of and for
the benefit of BANK OF AMERICA, N.A., a national banking association, as
Administrative Agent (together with its successors and assigns,

“Mortgagee”).


ARTICLE 1


Definitions; Granting Clauses; Secured
Indebtedness


          Section
1.1. Principal Secured. This Mortgage secures the aggregate principal
amount of up to $50,000,000 plus such additional amounts as Mortgagee may from
time to time advance subsequent to a default by Mortgagor pursuant to the terms
and conditions of this Mortgage, with respect to an obligation secured by a
lien or encumbrance prior to the lien of this Mortgage or for the protection of
the lien of this Mortgage, together with interest thereon. In the event that
all or any part of the Premises is located in the State of New York, then,
notwithstanding the language in the Granting Clause and Section 2.2 or anything
else contained herein to the contrary, the maximum amount secured hereby at
execution or which under any contingency may become secured hereby at any time
hereafter is the Mortgage Amount and all interest, additional interest and late
payment and prepayment charges in respect thereof, plus all amounts expended by
Mortgagee following a default hereunder in respect of insurance premiums and
real estate taxes, and all legal costs or expenses of collection of the debt
secured hereby or of the defense or prosecution of the rights and lien created
hereby.


          Section
1.2. Definitions. 


          (a) In
addition to other terms defined herein, each of the following terms shall have
the meaning assigned to it, such definitions to be applicable equally to the
singular and the plural forms of such terms and to all genders:


          “Additional
Interest”: Additional Interest as defined in the Loan Agreement.


          “Loan
Agreement”: Amended and Restated Loan Agreement dated of even date herewith
between Mortgagor and Mortgagee, as it may be from time to time amended,
restated, modified, extended or supplemented.


          “Mortgagor”:
Acadia Cortlandt LLC, a Delaware limited liability company, whose address is
c/o Acadia Realty Trust, 1311 Mamaroneck Avenue, Suite 260, White Plains, New
York 10605, and its permitted successors and assigns. 





          “Promissory
Note”: Collectively, the Initial Advance Notes, as defined in the Loan
Agreement.


          Capitalized
terms used herein which are not otherwise defined but which are defined in the
Loan Agreement shall have the meaning ascribed to them in the Loan Agreement.


          Section
1.3. Granting Clause. In consideration of the provisions of this
Mortgage and of the sum of $10.00 cash in hand paid and other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged by
the Mortgagor, Mortgagor does hereby GRANT, BARGAIN, SELL, CONVEY, TRANSFER,
ASSIGN, MORTGAGE, HYPOTHECATE, PLEDGE, DEPOSIT and SET OVER to Mortgagee, with
all estate, right, title and interest of Mortgagor in and to the Property (as
hereinafter defined), whether now owned or held or hereafter acquired by
Mortgagor, to have and hold the Property unto Mortgagee, its successors and
assigns forever; and to hold the Property unto Mortgagee in fee simple forever;
provided that Mortgagor may retain possession of the Property until the
occurrence of an Event of Default; (a) the real property described in Exhibit
A which is attached hereto and incorporated herein by reference (the
“Land”) together with: (i) any and all buildings, structures, improvements,
alterations or appurtenances now or hereafter situated or to be situated on the
Land (collectively, the “Improvements”); and (ii) all right, title and interest
of Mortgagor, now owned or hereafter acquired, in and to (1) all streets,
roads, alleys, easements, rights-of-way, licenses, rights of ingress and
egress, vehicle parking rights and public places, existing or proposed,
abutting, adjacent, used in connection with or pertaining to the Land or the
Improvements; (2) any strips or gores between the Land and abutting or adjacent
properties; (3) all options to purchase or lease the Land or the Improvements
or any portion thereof or interest therein, and any greater estate in the Land
or the Improvements; and (4) all water and water rights, timber, crops and
mineral interests on or pertaining to the Land (the Land, Improvements and
other rights, titles and interests referred to in this clause (a) being herein
sometimes collectively called the “Premises”); (b) all fixtures, equipment,
systems, machinery, furniture, furnishings, appliances, inventory, goods,
building and construction materials, supplies, and articles of personal
property, of every kind and character, tangible and intangible (including
software embedded therein), now owned or hereafter acquired by Mortgagor, which
are now or hereafter attached to or situated in, on or about the Land or the
Improvements, or used in or necessary to the complete and proper planning,
development, use, occupancy or operation thereof, or acquired (whether
delivered to the Land or stored elsewhere) for use or installation in or on the
Land or the Improvements, and all renewals and replacements of, substitutions
for and additions to the foregoing (the properties referred to in this clause
(b) being herein sometimes collectively called the “Accessories,” all of which
are hereby declared to be permanent accessions to the Land); (c) all (i) plans
and specifications for the Improvements; (ii) Mortgagor’s rights, but not
liability for any breach by Mortgagor, under all commitments (including any
commitments for financing to pay any of the Secured Indebtedness, as defined
below), insurance policies (or additional or supplemental coverage related
thereto, including from an insurance provider meeting the requirements of the
Loan Documents or from or through any state or federal government sponsored
program or entity), Swap Transactions (as hereinafter defined), contracts and
agreements for the design, construction, operation or inspection of the
Improvements and other contracts and general intangibles (including but not
limited to payment intangibles, trademarks, trade names, goodwill, software and
symbols) related to the Premises or the Accessories or the operation thereof;
(iii) deposits and deposit accounts arising from or 


2





related to any transactions related to the Premises or the

Accessories
(including but not limited to Mortgagor’s rights in tenants’ security deposits,
deposits with respect to utility services to the Premises, and any deposits,
deposit accounts or reserves hereunder or under any other Loan Documents
(hereinafter defined) for taxes, insurance or otherwise), rebates or refunds of
impact fees or other taxes, assessments or charges, money, accounts (including
deposit accounts), instruments, documents, promissory notes and chattel paper
(whether tangible or electronic) arising from or by virtue of any transactions
related to the Premises or the Accessories, and any account or deposit account
from which Mortgagor may from time to time authorize Mortgagee to debit and/or
credit payments due with respect to the Loan or any Swap Transaction, all
rights to the payment of money from Mortgagee under any Swap Transaction, and
all accounts, deposit accounts and general intangibles, including payment
intangibles, described in any Swap Transaction; (iv) permits, licenses,
franchises, certificates, development rights, commitments and rights for
utilities, and other rights and privileges obtained in connection with the
Premises or the Accessories; (v) leases, rents, royalties, bonuses, issues,
profits, revenues and other benefits of the Premises and the Accessories
(without derogation of Article 3 hereof); (vi) as-extracted collateral produced
from or allocated to the Land including, without limitation, oil, gas and other
hydrocarbons and other minerals and all products processed or obtained
therefrom, and the proceeds thereof; and (vii) engineering, accounting, title,
legal, and other technical or business data concerning the Property which are
in the possession of Mortgagor or in which Mortgagor can otherwise grant a
security interest; and (d) all (i) accounts and proceeds (cash or non-cash and
including payment intangibles) of or arising from the properties, rights,
titles and interests referred to above in this Section 1.3, including but not
limited to proceeds of any sale, lease or other disposition thereof, proceeds
of each policy of insurance (or additional or supplemental coverage related
thereto, including from an insurance provider meeting the requirements of the
Loan Documents or from or through any state or federal government sponsored
program or entity) relating thereto (including premium refunds), proceeds of
the taking thereof or of any rights appurtenant thereto, including change of
grade of streets, curb cuts or other rights of access, by condemnation, eminent
domain or transfer in lieu thereof for public or quasi-public use under any
law, and proceeds arising out of any damage thereto; (ii) all letter-of-credit
rights (whether or not the letter of credit is evidenced by a writing)
Mortgagor now has or hereafter acquires relating to the properties, rights,
titles and interests referred to in this Section 1.3; (iii) all commercial tort
claims Mortgagor now has or hereafter acquires relating to the properties,
rights, titles and interests referred to in this Section 1.3; and (iv) other
interests of every kind and character which Mortgagor now has or hereafter
acquires in, to or for the benefit of the properties, rights, titles and
interests referred to above in this Section 1.3 and all property used or useful
in connection therewith, including but not limited to rights of ingress and
egress and remainders, reversions and reversionary rights or interests; and if
the estate of Mortgagor in any of the property referred to above in this
Section 1.3 is a leasehold estate, this conveyance shall include, and the lien
and security interest created hereby shall encumber and extend to, all other or
additional title, estates, interests or rights which are now owned or may
hereafter be acquired by Mortgagor in or to the property demised under the
lease creating the leasehold estate; TO HAVE AND TO HOLD the foregoing rights,
interests and properties, and all rights, estates, powers and privileges
appurtenant thereto (herein collectively called the “Property”), unto
Mortgagee, its successors and assigns, in trust, in fee simple forever, subject
to the terms, provisions and conditions herein set forth, to secure the
obligations of Mortgagor under the Note and Loan Documents (as hereinafter
defined) and all other indebtedness and matters defined as


3





“Secured Indebtedness” in Section 1.5 of this Mortgage;

PROVIDED,
HOWEVER, that if Mortgagor shall promptly pay or cause to be paid to Mortgagee
(as hereinafter defined) the principal sum, including all additional advances
and all other sums payable by Mortgagor to Mortgagee under the terms of the
Loan Documents and shall perform or cause to be performed all the other terms,
conditions, agreements and provisions contained in the Loan Documents, all
without fraud or delay or deduction or abatement of anything or for any reason,
then this Mortgage and the estate hereby granted shall cease, terminate and
become void..


          Section
1.4. Security Interest. Mortgagor hereby grants to Mortgagee a security
interest in all of the Property which constitutes personal property or
fixtures, all proceeds and products thereof, and all supporting obligations
ancillary to or arising in any way in connection therewith (herein sometimes
collectively called the “Collateral”) to secure the obligations of Mortgagor
under the Note and Loan Documents and all other indebtedness and matters
defined as Secured Indebtedness in Section 1.5 of this Mortgage. In addition to
its rights hereunder or otherwise, Mortgagee shall have all of the rights of a
secured party under the New York Uniform Commercial Code, as in effect from
time to time, or under the Uniform Commercial Code in force, from time to time,
in any other state to the extent the same is applicable law.


          Section
1.5. Secured Indebtedness, Note, Loan Documents, Other Obligations. This
Mortgage is made to secure and enforce the payment and performance of the
following promissory notes, obligations, indebtedness, duties and liabilities
and all renewals, extensions, supplements, increases, and modifications thereof
in whole or in part from time to time (collectively the “Secured
Indebtedness”): (a) the Promissory Note and all other promissory notes given in
substitution therefor or in modification, supplement, increase, renewal or
extension thereof, in whole or in part (such promissory note or promissory
notes, whether one or more, as from time to time renewed, extended,
supplemented, increased or modified and all other notes given in substitution
therefor, or in modification, renewal or extension thereof, in whole or in
part, being hereinafter called the “Note”, and Mortgagee, or the subsequent
Mortgagee at the time in question of the Note or any of the Secured
Indebtedness, as hereinafter defined, such Mortgagee continuing to be defined
herein as “Mortgagee”); and (b) all interest, Additional Interest,
indebtedness, liabilities, duties, covenants, promises and other obligations
whether joint or several, direct or indirect, fixed or contingent, liquidated
or unliquidated, and the cost of collection of all such amounts, owed by
Mortgagor to Mortgagee now or hereafter incurred or arising pursuant to or
permitted by the provisions of the Note, this Mortgage, the Loan Agreement or
any other document now or hereafter evidencing, governing, guaranteeing,
securing or otherwise executed in connection with the loan evidenced by the
Note, including but not limited to any loan or credit agreement, letter of
credit or reimbursement agreement, tri-party financing agreement, Master
Agreement relating to any Swap Transactions or other agreement between
Mortgagor and Mortgagee, or among Mortgagor, Mortgagee and any other party or
parties, pertaining to the repayment or use of the proceeds of the loan
evidenced by the Note (the Note, the Mortgage, the Loan Agreement, any Master
Agreement relating to any Swap Transactions and any such documents as they or
any of them may have been or may be from time to time renewed, extended,
supplemented, increased or modified, being herein sometimes collectively called
the “Loan Documents”). “Swap Transaction” means any agreement, whether or

not
in writing, relating to any transaction that is a rate swap, basis swap,
forward rate transaction, commodity swap, commodity option, equity or equity
index swap or option, bond, note or bill option, interest rate option, forward
foreign exchange transaction, cap, collar or floor


4





transaction, currency swap, cross-currency rate swap, swap option
currency option or any other, similar transaction (including any option to
enter into any of the foregoing) or any combination of the foregoing, and, unless
the context otherwise clearly requires, any form of master agreement (the
“Master Agreement”) published by the International Swaps and Derivatives
Association, Inc., or any other master agreement, entered into between
Mortgagee (or its affiliates) and Mortgagor (or its affiliates), together with
any related schedules, as amended, supplemented, superseded or replaced from
time to time, relating to or governing any or all of the foregoing.


ARTICLE 2


Representations, Warranties and Covenants


          Section
2.1. Mortgagor represents, warrants, and covenants as follows:


          (a)

Payment
and Performance. Mortgagor will make due and punctual payment of the
Secured Indebtedness. Mortgagor will timely and properly perform and comply
with all of the covenants, agreements, and conditions imposed upon it by this
Mortgage and the other Loan Documents and will not permit a default to occur
hereunder or thereunder. Time shall be of the essence in this Mortgage.


          (b)

Title
and Permitted Encumbrances. Mortgagor has, in Mortgagor’s own right, and
Mortgagor covenants to maintain, lawful, good and marketable title to the
Property, is lawfully seized and possessed of the Property and every part
thereof, and has the right to convey the same, free and clear of all liens,
charges, claims, security interests, and encumbrances except for (i) the
matters, if any, set forth under the heading “Permitted Encumbrances” in Exhibit
B hereto, which are Permitted Encumbrances only to the extent the same are
valid and subsisting and affect the Property, (ii) the liens and security
interests evidenced by this Mortgage, (iii) statutory liens for real estate
taxes and assessments on the Property which are not yet delinquent, and (iv)
other liens and security interests (if any) in favor of Mortgagee (the matters
described in the foregoing clauses (i), (ii), (iii) and (iv) being herein
called the “Permitted Encumbrances”). Mortgagor, and Mortgagor’s successors and
assigns, will warrant generally and forever defend title to the Property,
subject as aforesaid, to Mortgagee and his successors or substitutes and
assigns, against the claims and demands of all persons claiming or to claim the
same or any part thereof. Mortgagor will punctually pay, perform, observe and
keep all covenants, obligations and conditions in or pursuant to any Permitted
Encumbrance and will not modify or permit modification of any Permitted
Encumbrance without the prior written consent of Mortgagee. Inclusion of any
matter as a Permitted Encumbrance does not constitute approval or waiver by
Mortgagee of any existing or future violation or other breach thereof by
Mortgagor, by the Property or otherwise. No part of the Property constitutes
all or any part of the principal residence of Mortgagor if Mortgagor is an individual.
If any right or interest of Mortgagee in the Property or any part thereof shall
be endangered or questioned or shall be attacked directly or indirectly,
Mortgagee and Mortgagee, or either of them (whether or not named as parties to
legal proceedings with respect thereto), are hereby authorized and empowered to
take such steps as in their discretion may be proper for the defense of any
such legal proceedings or the protection of such right or interest of
Mortgagee, including but not limited to the employment of independent


5





counsel, the prosecution or defense of litigation, and the

compromise
or discharge of adverse claims. All expenditures so made of every kind and
character shall be a demand obligation (which obligation Mortgagor hereby promises
to pay) owing by Mortgagor to Mortgagee or Mortgagee (as the case may be), and
the party (Mortgagee or Mortgagee, as the case may be) making such expenditures
shall be subrogated to all rights of the person receiving such payment.


          (c)

Taxes
and Other Impositions. Mortgagor will pay, or cause to be paid, all taxes,
assessments and other charges or levies imposed upon or against or with respect
to the Property or the ownership, use, occupancy or enjoyment of any portion
thereof, or any utility service thereto, as the same become due and payable,
including but not limited to all real estate taxes assessed against the
Property or any part thereof, and shall deliver promptly to Mortgagee such
evidence of the payment thereof as Mortgagee may require.


          (d)

Insurance.
Mortgagor shall obtain and maintain at Mortgagor’s sole expense: (1) mortgagee
title insurance issued to Mortgagee covering the Premises as required by
Mortgagee, without exception for mechanics’ liens; (2) property insurance with
respect to all insurable Property, against loss or damage by fire, lightning,
windstorm, explosion, hail, tornado and such additional hazards as are
presently included in “Special Form” (also known as “all-risk”) coverage and
against any and all acts of terrorism and such other insurable hazards as
Mortgagee may require, in an amount not less than 100% of the full replacement
cost, including the cost of debris removal, without deduction for depreciation
and sufficient to prevent Mortgagor and Mortgagee from becoming a coinsurer,
such insurance to be in “builder’s risk” completed value (non-reporting) form
during and with respect to any construction (other than construction of
customary tenant improvements in existing buildings) on the Premises; (3) if
and to the extent any portion of the Improvements is, under the Flood Disaster
Protection Act of 1973 (“FDPA”), as it may be amended from time to time, in a
Special Flood Hazard Area, within a Flood Zone designated A or V in a
participating community, a flood insurance policy in an amount required by
Mortgagee, but in no event less than the amount sufficient to meet the
requirements of applicable law and the FDPA, as such requirements may from time
to time be in effect; (4) general liability insurance, on an “occurrence”
basis, against claims for “personal injury” liability, including bodily injury,
death or property damage liability, for the benefit of Mortgagor as named
insured and Mortgagee as additional insured; (5) statutory workers’
compensation insurance with respect to any work on or about the Premises
(including employer’s liability insurance, if required by Mortgagee), covering
all employees of Mortgagor and any contractor; (6) if there is a general
contractor, during and with respect to any construction (other than
construction of customary tenant improvements in existing buildings) on the
Premises, commercial general liability insurance, including products and
completed operations coverage, and in other respects similar to that described
in clause (4) above, for the benefit of the general contractor as named insured
and Mortgagor and Mortgagee as additional insureds, in addition to statutory
workers’ compensation insurance with respect to any work on or about the
Premises (including employer’s liability insurance, if required by Mortgagee),
covering all employees of the general contractor any contractor; and (7) such
other insurance on the Property and endorsements as may from time to time be
required by Mortgagee (including but not limited to soft cost coverage,
automobile liability insurance, business interruption insurance or delayed
rental insurance, boiler and machinery insurance, earthquake insurance, wind
insurance, sinkhole coverage, and/or permit to occupy endorsement) and against
other insurable hazards or casualties which at the time are commonly insured
against in the case of premises similarly situated, due


6





regard being given to the height, type, construction, location,

use and
occupancy of buildings and improvements. All insurance policies shall be issued
and maintained by insurers, in amounts, with deductibles, limits and
retentions, and in forms satisfactory to Mortgagee, and shall require not less
than ten (10) days’ prior written notice to Mortgagee of any cancellation for
nonpayment of premiums, and not less than thirty (30) days’ prior written
notice to Mortgagee of any other cancellation or any change of coverage. All
insurance companies must be licensed to do business in the state in which the
Property is located and must have an A.M. Best Company financial and
performance ratings of A-:IX or better. All insurance policies maintained, or
caused to be maintained, by Mortgagor with respect to the Property, except for
general liability insurance, shall provide that each such policy shall be
primary without right of contribution from any other insurance that may be
carried by Mortgagor or Mortgagee and that all of the provisions thereof,
except the limits of liability, shall operate in the same manner as if there
were a separate policy covering each insured. If any insurer which has issued a
policy of title, hazard, liability or other insurance required pursuant to this
Mortgage or any other Loan Document becomes insolvent or the subject of any
petition, case, proceeding or other action pursuant to any Debtor Relief Law,
or if in Mortgagee’s reasonable opinion the financial responsibility of such
insurer is or becomes inadequate, Mortgagor shall, in each instance promptly
upon its discovery thereof or upon the request of Mortgagee therefor, and at
Mortgagor’s expense, promptly obtain and deliver to Mortgagee a like policy
(or, if and to the extent permitted by Mortgagee, acceptable evidence of
insurance) issued by another insurer, which insurer and policy meet the
requirements of this Mortgage or such other Loan Document, as the case may be.
Without limiting the discretion of Mortgagee with respect to required
endorsements to insurance policies, all such policies for loss of or damage to
the Property shall contain a standard mortgagee clause (without contribution)
naming Mortgagee as mortgagee with loss proceeds payable to Mortgagee
notwithstanding (i) any act, failure to act or negligence of or violation of
any warranty, declaration or condition contained in any such policy by any
named or additional insured; (ii) the occupation or use of the Property for
purposes more hazardous than permitted by the terms of any such policy; (iii)
any foreclosure or other action by Mortgagee under the Loan Documents; or (iv)
any change in title to or ownership of the Property or any portion thereof,
such proceeds to be held for application as provided in the Loan Documents. The
originals of each initial insurance policy (or to the extent permitted by
Mortgagee, a copy of the original policy and such evidence of insurance
acceptable to Mortgagee) shall be delivered to Mortgagee at the time of
execution of this Mortgage, with all premiums fully paid current, and each
renewal or substitute policy (or evidence of insurance) shall be delivered to
Mortgagee, with all premiums fully paid current, at least ten (10) days before
the termination of the policy it renews or replaces. Mortgagor shall pay all
premiums on policies required hereunder as they become due and payable and
promptly deliver to Mortgagee evidence satisfactory to Mortgagee of the timely
payment thereof. If any loss occurs at any time when Mortgagor has failed to
perform Mortgagor’s covenants and agreements in this paragraph with respect to
any insurance payable because of loss sustained to any part of the Property
whether or not such insurance is required by Mortgagee, Mortgagee shall
nevertheless be entitled to the benefit of all insurance covering the loss and
held by or for Mortgagor, to the same extent as if it had been made payable to
Mortgagee. Upon any foreclosure hereof or transfer of title to the Property in
extinguishment of the whole or any part of the Secured Indebtedness, all of
Mortgagor’s right, title and interest in and to the insurance policies referred
to in this Section (including unearned premiums) and all proceeds payable
thereunder shall thereupon vest in the purchaser at foreclosure or other such
transferee, to the 


7





extent permissible under such policies. Mortgagee shall have the

right
(but not the obligation) to make proof of loss for, settle and adjust any claim
under, and receive the proceeds of, all insurance for loss of or damage to the
Property where the loss is estimated by Mortgagee to be $1,000,000 or more,
regardless of whether or not such insurance policies are required by Mortgagee,
and the expenses incurred by Mortgagee in the adjustment and collection of
insurance proceeds shall be a part of the Secured Indebtedness and shall be due
and payable to Mortgagee on demand. Mortgagee shall not be, under any
circumstances, liable or responsible for failure to collect or exercise
diligence in the collection of any of such proceeds or for the obtaining,
maintaining or adequacy of any insurance or for failure to see to the proper
application of any amount paid over to Mortgagor. Any such proceeds received by
Mortgagee shall, after deduction therefrom of all reasonable expenses actually
incurred by Mortgagee, including attorneys’ fees, at Mortgagee’s option be (1)
released to Mortgagor, or (2) applied (upon compliance with such terms and
conditions as may be required by Mortgagee) to repair or restoration, either
partly or entirely, of the Property so damaged, or (3) applied to the payment
of the Secured Indebtedness in such order and manner as Mortgagee, in its sole
discretion, may elect, whether or not due. In any event, the unpaid portion of
the Secured Indebtedness shall remain in full force and effect and the payment
thereof shall not be excused. Mortgagor shall at all times comply with the
requirements of the insurance policies required hereunder and of the issuers of
such policies and of any board of fire underwriters or similar body as
applicable to or affecting the Property.


          (e)

Application
of Insurance Proceeds.
Notwithstanding anything to the contrary set forth in the preceding
Section 2.1(d), if the Property is damaged or destroyed and Mortgagee
determines that all of the conditions specified hereinafter in this Section
have been satisfied, then Mortgagee shall apply the proceeds of insurance (i)
first to reimbursing itself for all costs incurred by it in the collection of
such proceeds and (ii) second to reimbursing Mortgagor for such actual costs as
shall have been incurred by Mortgagor in restoring the Property and shall be
approved by Mortgagee. Insurance proceeds shall be applied to such restoration
solely if (A) Mortgagee determines that: (i) the Property is capable of being
suitably restored in accordance with applicable Legal Requirements to the
value, condition, character and general utility existing prior to such damage
or destruction, and, in any event, to a Loan to Value Ratio of not greater than
70%, provided that this clause (i) shall not apply to insurance proceeds
relating to a casualty for which the gross insurance proceeds do not exceed
$1,000,000; (ii) sufficient funds are unconditionally available (from proceeds
of insurance and/or from funds of Mortgagor) to enable Mortgagor promptly to
commence, and thereafter diligently to prosecute to completion, such
restoration, provided that this clause (ii) shall not apply to insurance
proceeds relating to a casualty for which the gross insurance proceeds do not
exceed $1,000,000; (iii) Mortgagor is not in default or in breach of any
obligations under any Loan Document, no uncured Default exists under any Loan
Document and no facts or circumstances exist that would constitute a Default
with the passage of time or the giving of notice or both; and (iv) neither the
validity, enforceability nor priority of the lien of this Mortgage shall be
adversely affected; (B) Mortgagor has entered into a written agreement,
satisfactory in form and substance to Mortgagee, containing such conditions to
disbursements as are employed at the time by Mortgagee for construction loans;
(C) Mortgagor has delivered to Mortgagee such security as Mortgagee might have
reasonably required to assure completion of restoration in accordance with the
standards specified above; and (D) Mortgagor has complied with such further
reasonable requirements as Mortgagee might have specified.


8





          (f)

Reserve
for Insurance, Taxes and Assessments. Upon request of Mortgagee, to secure
the payment and performance of the Secured Indebtedness, but not in lieu of
such payment and performance, Mortgagor will deposit with Mortgagee a sum equal
to real estate taxes, assessments and charges (which charges for the purposes
of this paragraph shall include without limitation any recurring charge which
could result in a lien against the Property) against the Property for the
current year and the premiums for such policies of insurance for the current
year, all as estimated by Mortgagee and prorated to the end of the calendar
month following the month during which Mortgagee’s request is made, and
thereafter will deposit with Mortgagee, on each date when an installment of
principal and/or interest is due on the Note, sufficient funds (as estimated
from time to time by Mortgagee) to permit Mortgagee to pay at least fifteen
(15) days prior to the due date thereof, the next maturing real estate taxes,
assessments and charges and premiums for such policies of insurance. Mortgagee
shall have the right to rely upon tax information furnished by applicable
taxing authorities in the payment of such taxes or assessments and shall have
no obligation to make any protest of any such taxes or assessments. Any excess
over the amounts required for such purposes shall be held by Mortgagee for
future use, applied to any Secured Indebtedness or refunded to Mortgagor, at
Mortgagee’s option, and any deficiency in such funds so deposited shall be made
up by Mortgagor upon demand of Mortgagee. All such funds so deposited shall
bear no interest, may be commingled with the general funds of Mortgagee and
shall be applied by Mortgagee toward the payment of such taxes, assessments,
charges and premiums when statements therefor are presented to Mortgagee by
Mortgagor (which statements shall be presented by Mortgagor to Mortgagee a
reasonable time before the applicable amount is due); provided, however, that,
if a Default shall have occurred hereunder, such funds may at Mortgagee’s
option be applied to the payment of the Secured Indebtedness in the order
determined by Mortgagee in its sole discretion, and that Mortgagee may (but
shall have no obligation) at any time, in its discretion, apply all or any part
of such funds toward the payment of any such taxes, assessments, charges or
premiums which are past due, together with any penalties or late charges with
respect thereto. The conveyance or transfer of Mortgagor’s interest in the
Property for any reason (including without limitation the foreclosure of a
subordinate lien or security interest or a transfer by operation of law) shall
constitute an assignment or transfer of Mortgagor’s interest in and rights to
such funds held by Mortgagee under this paragraph but subject to the rights of
Mortgagee hereunder.


          (g) Condemnation.
Mortgagor shall notify Mortgagee immediately of any threatened or pending
proceeding for condemnation affecting the Property or arising out of damage to
the Property, and Mortgagor shall, at Mortgagor’s expense, diligently prosecute
any such proceedings. Mortgagee shall have the right (but not the obligation)
to participate in any such proceeding and to be represented by counsel of its
own choice. Mortgagee shall be entitled to receive all sums which may be
awarded or become payable to Mortgagor for the condemnation of the Property, or
any part thereof, for public or quasi-public use, or by virtue of private sale
in lieu thereof, and any sums which may be awarded or become payable to
Mortgagor for injury or damage to the Property. Mortgagor shall, promptly upon
request of Mortgagee, execute such additional assignments and other documents
as may be necessary from time to time to permit such participation and to
enable Mortgagee to collect and receipt for any such sums. All such sums are
hereby assigned to Mortgagee, and shall, after deduction therefrom of all
reasonable expenses actually incurred by Mortgagee, including attorneys’ fees,
at Mortgagee’s option be (1) released to Mortgagor, or (2) applied (upon
compliance with such terms and conditions as may be required by Mortgagee) to
repair or restoration of the Property so affected, or (3) applied to


9







the payment of the Secured Indebtedness in such order and manner as
Mortgagee, in its sole discretion, may elect, whether or not due. In any event
the unpaid portion of the Secured Indebtedness shall remain in full force and
effect and the payment thereof shall not be excused. Mortgagee shall not be,
under any circumstances, liable or responsible for failure to collect or to
exercise diligence in the collection of any such sum or for failure to see to
the proper application of any amount paid over to Mortgagor. Mortgagee is
hereby authorized, in the name of Mortgagor, to execute and deliver valid
acquittances for, and to appeal from, any such award, judgment or decree. All
costs and expenses (including but not limited to attorneys’ fees) incurred by
Mortgagee in connection with any condemnation shall be a demand obligation
owing by Mortgagor (which Mortgagor hereby promises to pay) to Mortgagee
pursuant to this Mortgage. 


          (h) Compliance
with Legal Requirements. The Property and the use, operation and
maintenance thereof and all activities thereon do and shall at all times comply
with all applicable Legal Requirements (hereinafter defined). The Property is
not, and shall not be, dependent on any other property or premises or any
interest therein other than the Property to fulfill any requirement of any
Legal Requirement. Mortgagor shall not, by act or omission, permit any building
or other improvement not subject to the lien of this Mortgage to rely on the
Property or any interest therein to fulfill any requirement of any Legal
Requirement. No improvement upon or use of any part of the Property constitutes
a nonconforming use under any zoning law or similar law or ordinance. Mortgagor
has obtained and shall preserve in force all requisite zoning, utility,
building, health, environmental and operating permits from the governmental
authorities having jurisdiction over the Property. 


          If
Mortgagor receives a notice or claim from any person that the Property, or any
use, activity, operation or maintenance thereof or thereon, is not in
compliance with any Legal Requirement, Mortgagor will promptly furnish a copy
of such notice or claim to Mortgagee. Mortgagor has received no notice and has
no knowledge of any such noncompliance. As used in this Mortgage: (i) the term
“Legal Requirement” means any Law (hereinafter defined), agreement, covenant,
restriction, easement or condition (including, without limitation of the
foregoing, any condition or requirement imposed by any insurance or surety
company), as any of the same now exists or may be changed or amended or come
into effect in the future; and (ii) the term “Law” means any federal, state or
local law, statute, ordinance, code, rule, regulation, license, permit,
authorization, decision, order, injunction or decree, domestic or foreign. 


          (i) Maintenance,
Repair and Restoration. Mortgagor will keep the Property in first class
order, repair, operating condition and appearance, causing all necessary
repairs, renewals, replacements, additions and improvements to be promptly
made, and will not allow any of the Property to be misused, abused or wasted or
to deteriorate. Notwithstanding the foregoing, Mortgagor will not, without the
prior written consent of Mortgagee, (i) remove from the Property any fixtures
or personal property covered by this Mortgage except such as is replaced by
Mortgagor by an article of equal suitability and value, owned by Mortgagor,
free and clear of any lien or security interest (except that created by this
Mortgage), or (ii) make any structural alteration to the Property or any other
alteration thereto which impairs the value thereof. If any act or occurrence of
any kind or nature (including any condemnation or any casualty for which
insurance was not obtained or obtainable) shall result in damage to or loss or
destruction of the Property, Mortgagor shall give prompt notice thereof to
Mortgagee and Mortgagor shall promptly, at Mortgagor’s sole cost and expense
and regardless of whether insurance or 


10





condemnation proceeds (if any) shall be available or sufficient for the
purpose, secure the Property as necessary and commence and continue diligently
to completion to restore, repair, replace and rebuild the Property as nearly as
possible to its value, condition and character immediately prior to the damage,
loss or destruction. 


          (j) No
Other Liens. Mortgagor will not, without the prior written consent of
Mortgagee, create, place or permit to be created or placed, or through any act
or failure to act, acquiesce in the placing of, or allow to remain, any
mortgage, voluntary or involuntary lien, whether statutory, constitutional or
contractual, security interest, encumbrance or charge, or conditional sale or
other title retention document, against or covering the Property, or any part
thereof, other than the Permitted Encumbrances, regardless of whether the same
are expressly or otherwise subordinate to the lien or security interest created
in this Mortgage, and should any of the foregoing become attached hereafter in
any manner to any part of the Property without the prior written consent of
Mortgagee, Mortgagor will cause the same to be promptly discharged and
released. Mortgagor will own all parts of the Property and will not acquire any
fixtures, equipment or other property (including software embedded therein)
forming a part of the Property pursuant to a lease, license, security agreement
or similar agreement, whereby any party has or may obtain the right to
repossess or remove same, without the prior written consent of Mortgagee. If
Mortgagee consents to the voluntary grant by Mortgagor of any mortgage, lien,
security interest, or other encumbrance (hereinafter called “Subordinate Lien”)
covering any of the Property or if the foregoing prohibition is determined by a
court of competent jurisdiction to be unenforceable as to a Subordinate Lien,
any such Subordinate Lien shall contain express covenants to the effect that:
(1) the Subordinate Lien is unconditionally subordinate to this Mortgage and
all Leases (hereinafter defined); (2) if any action (whether judicial or
pursuant to a power of sale) shall be instituted to foreclose or otherwise
enforce the Subordinate Lien, no tenant of any of the Leases (hereinafter
defined) shall be named as a party defendant, and no action shall be taken that
would terminate any occupancy or tenancy without the prior written consent of
Mortgagee; (3) Rents (hereinafter defined), if collected by or for the
Mortgagee of the Subordinate Lien, shall be applied first to the payment of the
Secured Indebtedness then due and expenses incurred in the ownership, operation
and maintenance of the Property in such order as Mortgagee may determine, prior
to being applied to any indebtedness secured by the Subordinate Lien; (4)
written notice of default under the Subordinate Lien and written notice of the
commencement of any action (whether judicial or pursuant to a power of sale) to
foreclose or otherwise enforce the Subordinate Lien or to seek the appointment
of a receiver for all or any part of the Property shall be given to Mortgagee
with or immediately after the occurrence of any such default or commencement;
and (5) neither the Mortgagee of the Subordinate Lien, nor any purchaser at
foreclosure thereunder, nor anyone claiming by, through or under any of them
shall succeed to any of Mortgagor’s rights hereunder without the prior written
consent of Mortgagee. 


          (k) Operation
of Property. Mortgagor will operate the Property in a good and workmanlike
manner and in accordance with all Legal Requirements and will pay all fees or
charges of any kind in connection therewith. Mortgagor will keep the Property
occupied so as not to impair the insurance carried thereon. Mortgagor will not
use or occupy or conduct any activity on, or allow the use or occupancy of or
the conduct of any activity on, the Property in any manner which violates any
Legal Requirement or which constitutes a public or private nuisance or which
makes void, voidable or cancelable, or increases the premium of, any insurance
then in force with respect thereto. Mortgagor will not initiate or permit any
zoning 


11





reclassification of the Property or seek any variance under existing
zoning ordinances applicable to the Property or use or permit the use of the
Property in such a manner which would result in such use becoming a
nonconforming use under applicable zoning ordinances or other Legal
Requirement. Mortgagor will not impose any easement, restrictive covenant or
encumbrance upon the Property, execute or file any subdivision plat or condominium
declaration affecting the Property or consent to the annexation of the Property
to any municipality, without the prior written consent of Mortgagee. Mortgagor
will not do or suffer to be done any act whereby the value of any part of the
Property may be lessened. Mortgagor will preserve, protect, renew, extend and
retain all material rights and privileges granted for or applicable to the
Property. Without the prior written consent of Mortgagee, there shall be no
drilling or exploration for or extraction, removal or production of any
mineral, hydrocarbon, gas, natural element, compound or substance (including
sand and gravel) from the surface or subsurface of the Land regardless of the
depth thereof or the method of mining or extraction thereof. Mortgagor will
cause all debts and liabilities of any character (including without limitation
all debts and liabilities for labor, material and equipment (including software
embedded therein) and all debts and charges for utilities servicing the
Property) incurred in the construction, maintenance, operation and development
of the Property to be promptly paid. 


          (l) Financial
Matters. Mortgagor is solvent after giving effect to all borrowings
contemplated by the Loan Documents and no proceeding under any Debtor Relief
Law (hereinafter defined) is pending (or, to Mortgagor’s knowledge, threatened)
by or against Mortgagor, or any affiliate of Mortgagor, as a debtor. All
reports, statements, plans, budgets, applications, agreements and other data
and information heretofore furnished or hereafter to be furnished by or on
behalf of Mortgagor to Mortgagee in connection with the loan or loans evidenced
by the Loan Documents (including, without limitation, all financial statements
and financial information) are and will be true, correct and complete in all
material respects as of their respective dates and do not and will not omit to
state any fact or circumstance necessary to make the statements contained
therein not misleading. No material adverse change has occurred since the dates
of such reports, statements and other data in the financial condition of
Mortgagor or, to Mortgagor’s knowledge, of any tenant under any lease described
therein. For the purposes of this paragraph, “Mortgagor” shall also include any
person liable directly or indirectly for the Secured Indebtedness or any part
thereof and any joint venturer or general partner of Mortgagor. 


          (m) Status
of Mortgagor; Suits and Claims; Loan Documents. If Mortgagor is a
corporation, partnership, limited liability company, or other legal entity,
Mortgagor is and will continue to be (i) duly organized, validly existing and
in good standing under the laws of its state of organization, (ii) authorized
to do business in, and in good standing in, each state in which the Property is
located, and (iii) possessed of all requisite power and authority to carry on
its business and to own and operate the Property. Each Loan Document executed
by Mortgagor has been duly authorized, executed and delivered by Mortgagor, and
the obligations thereunder and the performance thereof by Mortgagor in
accordance with their terms are and will continue to be within Mortgagor’s
power and authority (without the necessity of joinder or consent of any other
person), are not and will not be in contravention of any Legal Requirement or
any other document or agreement to which Mortgagor or the Property is subject,
and do not and will not result in the creation of any encumbrance against any
assets or properties of Mortgagor, or any other person liable, directly or
indirectly, for any of the Secured Indebtedness, except as expressly
contemplated by the Loan Documents. There is no suit, action, claim,
investigation, 


12





inquiry, proceeding or demand pending (or, to Mortgagor’s knowledge, threatened)
against Mortgagor or against any other person liable directly or indirectly for
the Secured Indebtedness or which affects the Property (including, without
limitation, any which challenges or otherwise pertains to Mortgagor’s title to
the Property) or the validity, enforceability or priority of any of the Loan
Documents. There is no judicial or administrative action, suit or proceeding
pending (or, to Mortgagor’s knowledge, threatened) against Mortgagor, or
against any other person liable directly or indirectly for the Secured
Indebtedness, except as has been disclosed in writing to Mortgagee in
connection with the loan evidenced by the Note. The Loan Documents constitute
legal, valid and binding obligations of Mortgagor enforceable in accordance with
their terms, except as the enforceability thereof may be limited by Debtor
Relief Laws (hereinafter defined) and except as the availability of certain
remedies may be limited by general principles of equity. Mortgagor is not a
“foreign person” within the meaning of the Internal Revenue Code of 1986, as
amended, Sections 1445 and 7701 (i.e. Mortgagor is not a non-resident alien,
foreign corporation, foreign partnership, foreign trust or foreign estate as
those terms are defined therein and in any regulations promulgated thereunder).
The loan evidenced by the Note is solely for business and/or investment
purposes, and is not intended for personal, family, household or agricultural
purposes. Mortgagor further warrants that the proceeds of the Note shall be used
for commercial purposes and stipulates that the loan evidenced by the Note
shall be construed for all purposes as a commercial loan. Mortgagor’s exact
legal name is correctly set forth at the end of this Mortgage. If Mortgagor is
not an individual, Mortgagor is an organization of the type and (if not an
unregistered entity) is incorporated in or organized under the laws of the
state specified in the introductory paragraph of this Mortgage. If Mortgagor is
an unregistered entity (including, without limitation, a general partnership)
it is organized under the laws of the state specified in the introductory
paragraph of this Mortgage. Mortgagor will not cause or permit any change to be
made in its name, identity (including its trade name or names), or corporate or
partnership structure, unless Mortgagor shall have notified Mortgagee in
writing of such change at least thirty (30) days prior to the effective date of
such change, and shall have first taken all action required by Mortgagee for
the purpose of further perfecting or protecting the lien and security interest
of Mortgagee in the Property. In addition, Mortgagor shall not change its
corporate or partnership structure without first obtaining the prior written
consent of Mortgagee. Mortgagor’s principal place of business and chief
executive office, and the place where Mortgagor keeps its books and records,
including recorded data of any kind or nature, regardless of the medium of
recording including, without limitation, software, writings, plans, specifications
and schematics concerning the Property, has for the preceding four months (or,
if less, the entire period of the existence of Mortgagor) been and will
continue to be (unless Mortgagor notifies Mortgagee of any change in writing at
least thirty (30) days prior to the date of such change) the address of
Mortgagor set forth at the end of this Mortgage. If Mortgagor is an individual,
Mortgagor’s principal residence has for the preceding four months been and will
continue to be (unless Mortgagor notifies Mortgagee of any change in writing at
least thirty (30) days prior to the date of such change) the address of the
principal residence of Mortgagor set forth at the end of this Mortgage.
Mortgagor’s organizational identification number, if any, assigned by the state
of incorporation or organization is correctly set forth on the first page of
this Mortgage. Mortgagor shall promptly notify Mortgagee (i) of any change of
its organizational identification number, or (ii) if Mortgagor does not now
have an organization identification number and later obtains one, of such
organizational identification number. 


13





          (n) Certain
Environmental Matters. Mortgagor shall comply with the terms and covenants
of that certain Environmental Indemnity Agreement dated of even date herewith
(the “Environmental Agreement”). 


          (o) Further
Assurances. Mortgagor will, promptly on request of Mortgagee, (i) correct
any defect, error or omission which may be discovered in the contents,
execution or acknowledgment of this Mortgage or any other Loan Document; (ii)
execute, acknowledge, deliver, procure and record and/or file such further
documents (including, without limitation, further mortgages of trust, security
agreements, and assignments of rents or leases) and do such further acts as may
be necessary, desirable or proper to carry out more effectively the purposes of
this Mortgage and the other Loan Documents, to more fully identify and subject
to the liens and security interests hereof any property intended to be covered
hereby (including specifically, but without limitation, any renewals,
additions, substitutions, replacements, or appurtenances to the Property) or as
deemed advisable by Mortgagee to protect the lien or the security interest
hereunder against the rights or interests of third persons; and (iii) provide
such certificates, documents, reports, information, affidavits and other
instruments and do such further acts as may be necessary, desirable or proper
in the reasonable determination of Mortgagee to enable Mortgagee to comply with
the requirements or requests of any agency having jurisdiction over Mortgagee
or any examiners of such agencies with respect to the indebtedness secured
hereby, Mortgagor or the Property. Mortgagor shall pay all costs connected with
any of the foregoing, which shall be a demand obligation owing by Mortgagor
(which Mortgagor hereby promises to pay) to Mortgagee pursuant to this
Mortgage. 


          (p) Fees
and Expenses. Without limitation of any other provision of this Mortgage or
of any other Loan Document and to the extent not prohibited by applicable law,
Mortgagor will pay, and will reimburse to Mortgagee and/or Mortgagee on demand
to the extent paid by Mortgagee and/or Mortgagee: (i) all appraisal fees,
filing, registration and recording fees, recordation, transfer and other taxes,
brokerage fees and commissions, abstract fees, title search or examination
fees, title policy and endorsement premiums and fees, uniform commercial code
search fees, judgment and tax lien search fees, escrow fees, reasonable
attorneys’ fees, reasonable architect fees, reasonable engineer fees,
reasonable construction consultant fees, reasonable environmental inspection
fees, survey fees, and all other reasonable costs and expenses of every
character incurred by Mortgagor or Mortgagee and/or Mortgagee in connection
with the preparation of the Loan Documents, the evaluation, closing and funding
of the loan evidenced by the Loan Documents, and any and all amendments and
supplements to this Mortgage, the Note or any other Loan Documents or any
approval, consent, waiver, release or other matter requested or required
hereunder or thereunder, or otherwise attributable or chargeable to Mortgagor
as owner of the Property; and (ii) all costs and expenses, including reasonable
attorneys’ fees and expenses, incurred or expended in connection with the
exercise of any right or remedy, or the defense of any right or remedy or the
enforcement of any obligation of Mortgagor, hereunder or under any other Loan
Document. 


          (q) Indemnification.



	
 
	
 

	
 
	
          (i)
Mortgagor will indemnify and hold harmless Mortgagee from and against, and
reimburse them on demand for, any and all Indemnified Matters (hereinafter
defined). For purposes of this paragraph (p), the term “Mortgagee” shall
include and any 




14









	
 
	
 

	
 
	
persons owned or controlled by, owning or controlling, or under
common control or affiliated with Mortgagee. Without limitation, the
foregoing indemnities shall apply to each indemnified person with respect to
matters which in whole or in part are caused by or arise out of the
negligence of such (and/or any other) indemnified person. However, such
indemnities shall not apply to a particular indemnified person to the extent
that the subject of the indemnification is caused by or arises out of the
gross negligence or willful misconduct of that indemnified person. Any amount
to be paid under this paragraph (p) by Mortgagor to Mortgagee shall be a
demand obligation owing by Mortgagor (which Mortgagor hereby promises to pay)
to Mortgagee pursuant to this Mortgage. Nothing in this paragraph, elsewhere
in this Mortgage or in any other Loan Document shall limit or impair any
rights or remedies of Mortgagee (including without limitation any rights of
contribution or indemnification) against Mortgagor or any other person under
any other provision of this Mortgage, any other Loan Document, any other
agreement or any applicable Legal Requirement. 

	
 
	
 

	
 
	
          (ii) As
used herein, the term “Indemnified Matters” means any and all claims,
demands, liabilities (including strict liability), losses, damages (including
consequential damages), causes of action, judgments, penalties, fines, costs
and expenses (including without limitation, reasonable fees and expenses of
attorneys and other professional consultants and experts, and of the
investigation and defense of any claim, whether or not such claim is
ultimately defeated, and the settlement of any claim or judgment including
all value paid or given in settlement) of every kind, known or unknown,
foreseeable or unforeseeable, which may be imposed upon, asserted against or
incurred or paid by Mortgagee at any time and from time to time, whenever
imposed, asserted or incurred, because of, resulting from, in connection
with, or arising out of any transaction, act, omission, event or circumstance
in any way connected with the Property or with this Mortgage or any other
Loan Document, including but not limited to any bodily injury or death or
property damage occurring in or upon or in the vicinity of the Property
through any cause whatsoever at any time on or before the Release Date
(hereinafter defined), any act performed or omitted to be performed hereunder
or under any other Loan Document, any breach by Mortgagor of any
representation, warranty, covenant, agreement or condition contained in this
Mortgage or in any other Loan Document, any default as defined herein, any
claim under or with respect to any Lease (hereinafter defined) or arising
under the Environmental Agreement. The term “Release Date” as used herein
means the earlier of the following two dates: (i) the date on which the
indebtedness and obligations secured hereby have been paid and performed in
full and this Mortgage has been released, or (ii) the date on which the lien
of this Mortgage is fully and finally foreclosed or a conveyance by deed in
lieu of such foreclosure is fully and finally effective, and possession of
the Property has been given to the purchaser or grantee free of occupancy and
claims to occupancy by Mortgagor and Mortgagor’s heirs, devisees,
representatives, successors and assigns; provided, that if such payment,
performance, release, foreclosure or conveyance is challenged, in bankruptcy
proceedings or otherwise, the Release Date shall be deemed not to have occurred
until such challenge is rejected, dismissed or withdrawn with prejudice. The
indemnities in this paragraph (p) shall not terminate upon the Release Date
or upon the release, foreclosure or other termination of this Mortgage but
will survive the Release Date, foreclosure of this Mortgage or conveyance in
lieu of foreclosure, the repayment of the Secured Indebtedness, the 




15









	
 
	
 

	
 
	
termination of any and all Swap Transactions, the discharge and
release of this Mortgage and the other Loan Documents, any bankruptcy or
other debtor relief proceeding, and any other event whatsoever. 




          (r) Records
and Financial Reports. Mortgagor will keep accurate books and records in
accordance with sound accounting principles in which full, true and correct
entries shall be promptly made with respect to the Property and the operation
thereof, and will permit all such books and records, and all recorded data of
any kind or nature, regardless of the medium of recording including, without
limitation, all software, writings, plans, specifications and schematics to be
inspected and copied, and the Property to be inspected and photographed, by
Mortgagee and its representatives during normal business hours and at any other
reasonable times. Without limitation of other or additional requirements in any
of the other Loan Documents, Mortgagor will furnish to Mortgagee the financial
statements required under the Loan Agreement. Mortgagor will furnish to
Mortgagee at Mortgagor’s expense all evidence which Mortgagee may from time to
time reasonably request as to compliance with all provisions of the Loan
Documents. Any inspection or audit of the Property or the books and records,
including recorded data of any kind or nature, regardless of the medium of
recording including, without limitation, software, writings, plans,
specifications and schematics of Mortgagor, or the procuring of documents and
financial and other information, by or on behalf of Mortgagee shall be for
Mortgagee’s protection only, and shall not constitute any assumption of
responsibility to Mortgagor or anyone else with regard to the condition,
construction, maintenance or operation of the Property nor Mortgagee’s approval
of any certification given to Mortgagee nor relieve Mortgagor of any of
Mortgagor’s obligations. Mortgagee may from time to time assign or grant
participations in the Secured Indebtedness and Mortgagor consents to the
delivery by Mortgagee to any acquirer or prospective acquirer of any interest
or participation in or with respect to all or part of the Secured Indebtedness
such information as Mortgagee now or hereafter has relating to the Property,
Mortgagor, any party obligated for payment of any part of the Secured
Indebtedness, any tenant or guarantor under any lease affecting any part of the
Property and any agent or guarantor under any management agreement affecting
any part of the Property. 


          (s) Taxes
on Note or Mortgage. Mortgagor will promptly pay all income, franchise and
other taxes owing by Mortgagor and any stamp, documentary, recordation and
transfer taxes or other taxes (unless such payment by Mortgagor is prohibited
by law) which may be required to be paid with respect to the Note, this
Mortgage or any other instrument evidencing or securing any of the Secured
Indebtedness. In the event of the enactment after this date of any law of any
governmental entity applicable to Mortgagee, the Note, the Property or this
Mortgage deducting from the value of property for the purpose of taxation any
lien or security interest thereon, or imposing upon Mortgagee the payment of
the whole or any part of the taxes or assessments or charges or liens herein
required to be paid by Mortgagor, or changing in any way the laws relating to
the taxation of deeds of trust or mortgages or security agreements or debts
secured by deeds of trust or mortgages or security agreements or the interest
of the mortgagee or secured party in the property covered thereby, or the
manner of collection of such taxes, so as to affect this Mortgage or the
Secured Indebtedness or Mortgagee, then, and in any such event, Mortgagor, upon
demand by Mortgagee, shall pay such taxes, assessments, charges or liens, or
reimburse Mortgagee therefor; provided, however, that if in the opinion of
counsel for Mortgagee (i) it might be unlawful to require Mortgagor to make
such payment or (ii) the making of such payment might result in the imposition
of interest beyond the maximum amount 


16





permitted by law, then and in such event, Mortgagee may elect, by
notice in writing given to Mortgagor, to declare all of the Secured
Indebtedness to be and become due and payable sixty (60) days from the giving
of such notice. 


          (t) Statement
Concerning Note or Mortgage. Mortgagor shall at any time and from time to
time furnish within seven (7) days of request by Mortgagee a written statement
in such form as may be required by Mortgagee stating that (i) the Note, this
Mortgage and the other Loan Documents are valid and binding obligations of
Mortgagor, enforceable against Mortgagor in accordance with their terms; (ii)
the unpaid principal balance of the Note; (iii) the date to which interest on
the Note is paid; (iv) the Note, this Mortgage and the other Loan Documents
have not been released, subordinated or modified; and (v) there are no offsets
or defenses against the enforcement of the Note, this Mortgage or any other
Loan Document. If any of the foregoing statements are untrue, Mortgagor shall,
alternatively, specify the reasons therefor. Mortgagee shall at any time and
from time to time furnish within seven (7) days of request by Mortgagor a
written statement stating (i) the unpaid principal balance of the Note and (ii)
the date to which interest on the Note is paid. 


          (u) Trust
Fund; Lien Laws. Mortgagor will receive the advances secured hereby and
will hold the right to receive such advances as a trust fund to be applied
first for the purpose of paying the “cost of improvement”, as such quoted term
is defined in the New York Lien Law) and will apply the same first to the
payment of such costs before using any part of the total of the same for any
other purpose and, will comply with Section 13 of the New York Lien Law.
Mortgagor will indemnify and hold Mortgagee harmless against any loss or
liability, cost or expense, including, without limitation, any judgments,
reasonable attorney’s fees, costs of appeal bonds and printing costs, arising
out of or relating to any proceeding instituted by any claimant alleging a
violation by Mortgagor of any applicable lien law including, without limitation,
any section of Article 3-A of the New York Lien Law. 


          Section
2.2. Performance by Mortgagee on Mortgagor’s Behalf. Mortgagor agrees
that, if Mortgagor fails to perform any act or to take any action which under
any Loan Document Mortgagor is required to perform or take, or to pay any money
which under any Loan Document Mortgagor is required to pay, and whether or not
the failure then constitutes a default hereunder or thereunder, and whether or
not there has occurred any default or defaults hereunder or the Secured
Indebtedness has been accelerated, Mortgagee, in Mortgagor’s name or its own
name, may, but shall not be obligated to, perform or cause to be performed such
act or take such action or pay such money, and any expenses so incurred by
Mortgagee, with interest thereon at the Past Due Rate set forth in the Note,
and any money so paid by Mortgagee shall be a demand obligation owing by
Mortgagor to Mortgagee (which obligation Mortgagor hereby promises to pay),
shall be a part of the indebtedness secured hereby, and Mortgagee, upon making
such payment, shall be subrogated to all of the rights of the person, entity or
body politic receiving such payment. Mortgagee and its designees shall have the
right to enter upon the Property at any time and from time to time for any such
purposes. No such payment or performance by Mortgagee shall waive or cure any
default or waive any right, remedy or recourse of Mortgagee. Any such payment
may be made by Mortgagee in reliance on any statement, invoice or claim without
inquiry into the validity or accuracy thereof. Each amount due and owing by
Mortgagor to Mortgagee pursuant to this Mortgage shall bear interest, from the
date such amount becomes due until paid, at the rate per annum provided in the
Note for interest on past due principal owed 


17





on the Note but never in excess of the maximum nonusurious amount
permitted by applicable law, which interest shall be payable to Mortgagee on
demand; and all such amounts, together with such interest thereon, shall
automatically and without notice be a part of the indebtedness secured hereby.
The amount and nature of any expense by Mortgagee hereunder and the time when
paid shall be fully established by the certificate of Mortgagee or any of
Mortgagee’s officers or agents. 


          Section
2.3. Absence of Obligations of Mortgagee with Respect to Property.
Notwithstanding anything in this Mortgage to the contrary, including, without
limitation, the definition of “Property” and/or the provisions of Article 3
hereof, (i) to the extent permitted by applicable law, the Property is composed
of Mortgagor’s rights, title and interests therein but not Mortgagor’s
obligations, duties or liabilities pertaining thereto, (ii) Mortgagee neither
assumes nor shall have any obligations, duties or liabilities in connection
with any portion of the items described in the definition of “Property” herein,
either prior to or after obtaining title to such Property, whether by
foreclosure sale, the granting of a deed in lieu of foreclosure or otherwise,
and (iii) Mortgagee may, at any time prior to or after the acquisition of title
to any portion of the Property as above described, advise any party in writing
as to the extent of Mortgagee’s interest therein and/or expressly disaffirm in
writing any rights, interests, obligations, duties and/or liabilities with
respect to such Property or matters related thereto. Without limiting the
generality of the foregoing, it is understood and agreed that Mortgagee shall
have no obligations, duties or liabilities prior to or after acquisition of
title to any portion of the Property, as lessee under any lease or purchaser or
seller under any contract or option unless Mortgagee elects otherwise by
written notification. 


          Section
2.4. Authorization to File Financing Statements; Power of Attorney.
Mortgagor hereby authorizes Mortgagee at any time and from time to time to file
any initial financing statements, amendments thereto and continuation
statements as authorized by applicable law, required by Mortgagee to establish
or maintain the validity, perfection and priority of the security interests
granted in this Mortgage. For purposes of such filings, Mortgagor agrees to
furnish any information requested by Mortgagee promptly upon request by Mortgagee.
Mortgagor also ratifies its authorization for Mortgagee to have filed any like
initial financing statements, amendments thereto or continuation statements if
filed prior to the date of this Mortgage. Mortgagor hereby irrevocably
constitutes and appoints Mortgagee and any officer or agent of Mortgagee, with
full power of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of Mortgagor or in
Mortgagor’s own name to execute in Mortgagor’s name any such documents and to
otherwise carry out the purposes of this Section 2.4, to the extent that
Mortgagor’s authorization above is not sufficient. To the extent permitted by
law, Mortgagor hereby ratifies all acts said attorney-in-fact shall lawfully do,
have done in the past or cause to be done in the future by virtue hereof. This
power of attorney is a power coupled with an interest and shall be irrevocable.



18





ARTICLE 3


Assignment of Rents and Leases


          Section
3.1. Assignment. Mortgagor hereby assigns to Mortgagee all Rents
(hereinafter defined) and all of Mortgagor’s rights in and under all Leases
(hereinafter defined). So long as no Default (hereinafter defined) has
occurred, Mortgagor shall have a license (which license shall terminate automatically
and without further notice upon the occurrence of a Default) to collect, but
not prior to accrual, the Rents under the Leases and, where applicable,
subleases, such Rents to be held in trust for Mortgagee, and to otherwise deal
with all Leases as permitted by this Mortgage. Each month, provided no Default
has occurred, Mortgagor may retain such Rents as were collected that month and
held in trust for Mortgagee; provided, however, that all Rents collected by
Mortgagor shall be applied solely to the ordinary and necessary expenses of
owning and operating the Property or paid to Mortgagee. Upon the revocation of
such license, all Rents shall be paid directly to Mortgagee and not through the
Mortgagor, all without the necessity of any further action by Mortgagee,
including, without limitation, any action to obtain possession of the Land,
Improvements or any other portion of the Property or any action for the
appointment of a receiver. Mortgagor hereby authorizes and directs the tenants
under the Leases to pay Rents to Mortgagee upon written demand by Mortgagee,
without further consent of Mortgagor, without any obligation of such tenants to
determine whether a Default has in fact occurred and regardless of whether
Mortgagee has taken possession of any portion of the Property, and the tenants
may rely upon any written statement delivered by Mortgagee to the tenants. Any
such payments to Mortgagee shall constitute payments to Mortgagor under the
Leases, and Mortgagor hereby irrevocably appoints Mortgagee as its
attorney-in-fact to do all things, after a Default, which Mortgagor might
otherwise do with respect to the Property and the Leases thereon, including,
without limitation, (i) collecting Rents with or without suit and applying the
same, less expenses of collection, to any of the obligations secured hereunder
or to expenses of operating and maintaining the Property (including reasonable
reserves for anticipated expenses), at the option of the Mortgagee, all in such
manner as may be determined by Mortgagee, or at the option of Mortgagee,
holding the same as security for the payment of the Secured Indebtedness, (ii)
leasing, in the name of Mortgagor, the whole or any part of the Property which
may become vacant, and (iii) employing agents therefor and paying such agents
reasonable compensation for their services. The curing of such Default, unless
other Defaults also then exist, shall entitle Mortgagor to recover its
aforesaid license to do any such things which Mortgagor might otherwise do with
respect to the Property and the Leases thereon and to again collect such Rents.
The powers and rights granted in this paragraph shall be in addition to the
other remedies herein provided for upon the occurrence of a Default and may be
exercised independently of or concurrently with any of said remedies. Nothing
in the foregoing shall be construed to impose any obligation upon Mortgagee to
exercise any power or right granted in this paragraph or to assume any
liability under any Lease of any part of the Property and no liability shall
attach to Mortgagee for failure or inability to collect any Rents under any
such Lease. The assignment contained in this Section shall become null and void
upon the release of this Mortgage. As used herein: (i) “Lease” means each
existing or future lease, sublease (to the extent of Mortgagor’s rights
thereunder) or other agreement under the terms of which any person has or
acquires any right to occupy or use the Property, or any part thereof, or
interest therein, and each existing or future guaranty of payment or
performance thereunder, and all extensions, renewals, modifications and
replacements of each such lease, 


19





sublease, agreement or guaranty; and (ii) “Rents” means all of the
rents, revenue, income, profits and proceeds derived and to be derived from the
Property or arising from the use or enjoyment of any portion thereof or from
any Lease, including but not limited to the proceeds from any negotiated lease
termination or buyout of such Lease, liquidated damages following default under
any such Lease, all proceeds payable under any policy of insurance covering
loss of rents resulting from untenantability caused by damage to any part of
the Property, all of Mortgagor’s rights to recover monetary amounts from any
tenant in bankruptcy including, without limitation, rights of recovery for use
and occupancy and damage claims arising out of Lease defaults, including
rejections, under any applicable Debtor Relief Law (hereinafter defined),
together with any sums of money that may now or at any time hereafter be or
become due and payable to Mortgagor by virtue of any and all royalties,
overriding royalties, bonuses, delay rentals and any other amount of any kind
or character arising under any and all present and all future oil, gas, mineral
and mining leases covering the Property or any part thereof, and all proceeds
and other amounts paid or owing to Mortgagor under or pursuant to any and all
contracts and bonds relating to the construction or renovation of the Property.



          Section 3.2.
Covenants, Representations and Warranties Concerning Leases and Rents.
Mortgagor covenants, represents and warrants that: (a) Mortgagor has good title
to, and is the owner of the entire landlord’s interest in, the Leases and Rents
hereby assigned and authority to assign them; (b) all Leases are valid and
enforceable, and in full force and effect, and are unmodified except as stated
therein; (c) neither Mortgagor nor any tenant in the Property is in default
under its Lease (and no event has occurred which with the passage of time or
notice or both would result in a default under its Lease) or is the subject of
any bankruptcy, insolvency or similar proceeding; (d) unless otherwise stated
in a Permitted Encumbrance, no Rents or Leases have been or will be assigned,
mortgaged, pledged or otherwise encumbered and no other person has or will
acquire any right, title or interest in such Rents or Leases; (e) no Rents have
been waived, released, discounted, set off or compromised; (f) except as stated
in the Leases, Mortgagor has not received any funds or deposits from any tenant
for which credit has not already been made on account of accrued Rents; (g)
Mortgagor shall perform all of its obligations under the Leases and enforce the
tenants’ obligations under the Leases to the extent enforcement is prudent
under the circumstances; (h) Mortgagor will not without the prior written
consent of Mortgagee, enter into any Lease after the date hereof except in
accordance with the terms of Exhibit I to the Loan Agreement, or waive,
release, discount, set off, compromise, reduce or defer any Rent, receive or
collect Rents more than one (1) month in advance, grant any rent-free period to
any tenant (except in accordance with the terms of Exhibit I to the Loan
Agreement), reduce any Lease term or waive, release or otherwise modify any
other material obligation under any Lease, renew or extend any Lease except in
accordance with the terms of Exhibit I to the Loan Agreement or in accordance
with a right of the tenant thereto in such Lease, approve or consent to an
assignment of a Lease or a subletting of any part of the premises covered by a
Lease (except with respect to leases of 15,000 square feet of rentable space or
less), or settle or compromise any claim against a tenant under a Lease in
bankruptcy or otherwise (except with respect to leases of 15,000 square feet of
rentable space or less); (i) Mortgagor will not, without the prior written
consent of Mortgagee, terminate or consent to the cancellation or surrender of
any Lease having an unexpired term of one (1) year or more unless promptly
after the cancellation or surrender a new Lease of such premises is made with a
new tenant having a credit standing that is satisfactory to Mortgagee, in
Mortgagee’s judgment, on terms not materially less favorable to lessor than the
terms of the terminated or cancelled Lease; (j) 


20





Mortgagor will not execute any Lease except in accordance with the Loan
Documents and for actual occupancy by the tenant thereunder; (k) Mortgagor
shall give prompt notice to Mortgagee, as soon as Mortgagor first obtains
notice, of any claim, or the commencement of any action, by any tenant or
subtenant under or with respect to a Lease regarding any claimed damage,
default, diminution of or offset against Rent, cancellation of the Lease, or
constructive eviction, excluding, however, notices of default under residential
Leases, and Mortgagor shall defend, at Mortgagor’s expense, any proceeding
pertaining to any Lease, including, if Mortgagee so requests, any such proceeding
to which Mortgagee is a party; (l) Mortgagor shall as often as requested by
Mortgagee, within ten (10) days of each request, deliver to Mortgagee a
complete rent roll of the Property in such detail as Mortgagee may require and
financial statements of the tenants, subtenants and guarantors under the Leases
to the extent available to Mortgagor, and deliver to such of the tenants and
others obligated under the Leases specified by Mortgagee written notice of the
assignment in Section 3.1 hereof in form and content satisfactory to Mortgagee;
(m) promptly upon request by Mortgagee, Mortgagor shall deliver to Mortgagee
executed originals of all Leases and copies of all records in its possession or
control relating thereto; (n) there shall be no merger of the leasehold
estates, created by the Leases, with the fee estate of the Land without the
prior written consent of Mortgagee; and (o) Mortgagee may at any time and from
time to time by specific written instrument intended for the purpose,
unilaterally subordinate the lien of this Mortgage to any Lease, without
joinder or consent of, or notice to, Mortgagor, any tenant or any other person,
and notice is hereby given to each tenant under a Lease of such right to
subordinate. No such subordination shall constitute a subordination to any lien
or other encumbrance, whenever arising, or improve the right of any junior lien
Mortgagee; and nothing herein shall be construed as subordinating this Mortgage
to any Lease. 


          Section
3.3. Estoppel Certificates. All Leases executed after the date hereof
shall require the tenant to execute and deliver to Mortgagee an estoppel
certificate in form and substance acceptable to Mortgagee not more than thirty
(30) days after notice from the Mortgagee. 


          Section 3.4.
No Liability of Mortgagee. Mortgagee’s acceptance of this assignment
shall not be deemed to constitute Mortgagee a “mortgagee in possession,” nor
obligate Mortgagee to appear in or defend any proceeding relating to any Lease
or to the Property, or to take any action hereunder, expend any money, incur
any expenses, or perform any obligation or liability under any Lease, or assume
any obligation for any deposit delivered to Mortgagor by any tenant and not as
such delivered to and accepted by Mortgagee. Mortgagee shall not be liable for
any injury or damage to person or property in or about the Property, or for
Mortgagee’s failure to collect or to exercise diligence in collecting Rents,
but shall be accountable only for Rents that it shall actually receive. Neither
the assignment of Leases and Rents nor enforcement of Mortgagee’s rights
regarding Leases and Rents (including collection of Rents) nor possession of
the Property by Mortgagee nor Mortgagee’s consent to or approval of any Lease
(nor all of the same), shall render Mortgagee liable on any obligation under or
with respect to any Lease or constitute affirmation of, or any subordination
to, any Lease, occupancy, use or option. 


          If
Mortgagee seeks or obtains any judicial relief regarding Rents or Leases, the
same shall in no way prevent the concurrent or subsequent employment of any
other appropriate rights or remedies nor shall same constitute an election of
judicial relief for any foreclosure or any other purpose. Mortgagee neither has
nor assumes any obligations as lessor or landlord with 


21





respect to any Lease. The rights of Mortgagee under this Article 3
shall be cumulative of all other rights of Mortgagee under the Loan Documents
or otherwise. 


          Reference
is hereby made to Section 291-f of the Real Property Law of the State of New
York for the purpose of obtaining for Mortgagee the benefits of said Section in
connection herewith. 


ARTICLE 4


Default


          Section 4.1. Events of Default. The occurrence of any one of the following shall be a
default under this Mortgage (“default” or “Default”): 


          (a) Failure
to Pay Indebtedness. Any of the Secured Indebtedness or any indebtedness
evidenced by the other “Notes” (as defined in the Loan Agreement) is not paid
when due, regardless of how such amount may have become due and such default
shall have continued for a period of ten (10) days. 


          (b) Nonperformance
of Covenants. Any covenant, agreement or condition herein or in any other
Loan Document (other than covenants otherwise addressed in another paragraph of
this Section, such as covenants to pay the Secured Indebtedness) is not fully
and timely performed, observed or kept and such failure shall have continued
for a period of thirty (30) days after notice thereof shall have been given to
Mortgagor by Mortgagee (or such other cure period as may be specified elsewhere
in this Mortgage or the other Loan Documents with respect to specific
provisions), provided, however, if such default is not susceptible of being
cured within such thirty (30) day period and Mortgagor has commenced such cure
within such thirty (30) day period and is diligently pursuing such cure to
Mortgagee’s satisfaction, such thirty (30) day cure period shall be extended,
but in no event shall such cure period exceed sixty (60) days, or, in the case
of such other documents, such shorter grace period, if any, as may be provided
for therein. 


          (c) Default
under other Loan Documents. The occurrence of a Default under any other
Loan Document, including an Early Termination Event as defined in any Master
Agreement relating to any Swap Transaction. 


          (d) Representations.
Any statement, representation or warranty in any of the Loan Documents, or in
any financial statement or any other writing heretofore or hereafter delivered
to Mortgagee in connection with the Secured Indebtedness is false, misleading
or erroneous in any material respect on the date hereof or on the date as of
which such statement, representation or warranty is made. 


          (e) Bankruptcy
or Insolvency. The owner of the Property or any person liable, directly or
indirectly, for any of the Secured Indebtedness (or any general partner or
joint venturer of such owner or other person): 


22









	
 
	
 

	
 
	
          (i) (A)
Executes an assignment for the benefit of creditors, or takes any action in
furtherance thereof; or (B) admits in writing its inability to pay, or fails
to pay, its debts generally as they become due; or (C) as a debtor, files a
petition, case, proceeding or other action pursuant to, or voluntarily seeks
the benefit or benefits of, Title 11 of the United States Code as now or
hereafter in effect or any other federal, state or local law, domestic or
foreign, as now or hereafter in effect relating to bankruptcy, insolvency, liquidation,
receivership, reorganization, arrangement, composition, extension or
adjustment of debts, or similar laws affecting the rights of creditors (Title
11 of the United States Code and such other laws being herein called “Debtor
Relief Laws”), or takes any action in furtherance thereof; or (D) seeks the
appointment of a receiver, trustee, custodian or liquidator of the Property
or any part thereof or of any significant portion of its other property; or 

	
 
	
 

	
 
	
          (ii)
Suffers the filing of a petition, case, proceeding or other action against it
as a debtor under any Debtor Relief Law or seeking appointment of a receiver,
trustee, custodian or liquidator of the Property or any part thereof or of
any significant portion of its other property, and (A) admits, acquiesces in
or fails to contest diligently the material allegations thereof, or (B) the
petition, case, proceeding or other action results in entry of any order for
relief or order granting relief sought against it, or (C) in a proceeding under
Debtor Relief Laws, the case is converted from one chapter to another, or (D)
fails to have the petition, case, proceeding or other action permanently
dismissed or discharged on or before the earlier of trial thereon or ninety
(90) days next following the date of its filing; or 

	
 
	
 

	
 
	
          (iii)
Conceals, removes, or permits to be concealed or removed, any part of its
property, with intent to hinder, delay or defraud its creditors or any of
them, or makes or suffers a transfer of any of its property which may be
fraudulent under any bankruptcy, fraudulent conveyance or similar law; or
makes any transfer of its property to or for the benefit of a creditor at a
time when other creditors similarly situated have not been paid; or suffers
or permits, while insolvent, any creditor to obtain a lien (other than as
described in subparagraph (iv) below) upon any of its property through legal
proceedings which are not vacated and such lien discharged prior to
enforcement thereof and in any event within sixty (60) days from the date
thereof; or 

	
 
	
 

	
 
	
          (iv)
Fails to have discharged within a period of thirty (30) days any attachment,
sequestration, or similar writ levied upon any of its property; or 

	
 
	
 

	
 
	
          (v) Fails
to pay immediately any final money judgment against it. 




          (f) Transfer
of the Property. Any sale, lease, conveyance, assignment, pledge,
encumbrance, or transfer of all or any part of the Property or any interest
therein, voluntarily or involuntarily, whether by operation of law or
otherwise, except: (i) sales or transfers of items of the Accessories which
have become obsolete or worn beyond practical use and which have been replaced
by adequate substitutes, owned by Mortgagor, having a value equal to or greater
than the replaced items when new; and (ii) the grant, in the ordinary course of
business, of a leasehold interest in a part of the Improvements to a tenant for
occupancy, not containing a right or option to purchase and not in
contravention of any provision of this Mortgage or of any other Loan 


23





Document. Mortgagee may, in its sole discretion, waive a default under
this paragraph, but it shall have no obligation to do so, and any waiver may be
conditioned upon such one or more of the following (if any) which Mortgagee may
require: the grantee’s integrity, reputation, character, creditworthiness and
management ability being satisfactory to Mortgagee in its sole judgment and
grantee executing, prior to such sale or transfer, a written assumption
agreement containing such terms as Mortgagee may require, a principal paydown
on the Note, an increase in the rate of interest payable under the Note, a
transfer fee, a modification of the term of the Note, and any other
modification of the Loan Documents which Mortgagee may require. : NOTICE - THE
DEBT SECURED HEREBY IS SUBJECT TO CALL IN FULL AND ANY AND ALL SWAP
TRANSACTIONS ARE SUBJECT TO TERMINATION, OR THE TERMS THEREOF BEING MODIFIED IN
THE EVENT OF SALE OR CONVEYANCE OF THE PROPERTY CONVEYED. 


          (g) Transfer
of Assets. Any sale, lease, conveyance, assignment, pledge, encumbrance, or
transfer of all or any part of the other assets of Mortgagor, excluding the
Property, voluntarily or involuntarily, whether by operation of law or
otherwise, except: (i) sales or transfers in the ordinary course of Mortgagor’s
business; and (ii) sales or transfers for which Mortgagor receives
consideration substantially equivalent to the fair market value of the
transferred asset. 


          (h) Transfer
of Ownership of Mortgagor. Any of the following: 


	
 
	
 

	
 
	
          (i) the
sale, pledge, encumbrance, assignment or transfer, voluntarily or
involuntarily, whether by operation of law or otherwise, of any interest in
Mortgagor (if Mortgagor is not a natural person but is a corporation,
partnership, limited liability company, trust or other legal entity), without
the prior written consent of Mortgagee (including, without limitation, if
Mortgagor is a partnership or joint venture, the withdrawal from or admission
into it of any general partner or joint venturer); or 

	
 
	
 

	
 
	
          (ii) if
Mortgagor or Guarantor (or a general partner, member or co-venturer of either
of them) is a partnership, joint venture, limited liability company, trust or
closely-held corporation, any sale, conveyance, transfer or other disposition
of more than 10%, in the aggregate, of any class of the issued and
outstanding capital stock of such closely-held corporation or of the
beneficial interest of such partnership, venture, limited liability company
or trust, or a change of any general partner, joint venturer, member or
beneficiary, as the case may be, or, in the event Mortgagor or Guarantor (or
a general partner, co-venturer, member or beneficiary, as the case may be, of
either of them) is a publicly-held corporation, the sale, conveyance,
transfer or other disposition of more than 10%, in the aggregate, of the
stock-holdings of any of the five (5) individuals or entities that own the
greatest number of shares of each class of issued and outstanding stock, or
effectuates or permits a reduction in the aggregate direct and indirect
ownership interests of Guarantor in Mortgagor below 50.1%, or effectuates or
causes Acadia Realty Trust to fail to control the management of Guarantor and
Mortgagor. 




          (i) Grant
of Easement, Etc. Without the prior written consent of Mortgagee, Mortgagor
grants any easement or dedication, files any plat, condominium declaration, or
restriction, or otherwise encumbers the Property, or seeks or permits any
zoning reclassification  


24





or variance, unless such action is expressly permitted by the Loan
Documents or does not affect the Property. 


          (j) Abandonment.
The owner of the Property abandons any of the Property. 


          (k) Default
Under Other Lien. A default or event of default occurs under any lien,
security interest or assignment covering the Property or any part thereof
(whether or not Mortgagee has consented, and without hereby implying
Mortgagee’s consent, to any such lien, security interest or assignment not
created hereunder), or the Mortgagee of any such lien, security interest or
assignment declares a default or institutes foreclosure or other proceedings
for the enforcement of its remedies thereunder. 


          (l) Destruction.
The Property is so demolished, destroyed or damaged that, in the reasonable
opinion of Mortgagee, it cannot be restored or rebuilt with available funds to
a profitable condition within a reasonable period of time and in any event,
prior to the final maturity date of the Note. 


          (m) Condemnation.
(i) Any governmental authority shall require, or commence any proceeding for,
the demolition of any building or structure comprising a part of the Premises,
or (ii) there is commenced any proceeding to condemn or otherwise take pursuant
to the power of eminent domain, or a contract for sale or a conveyance in lieu
of such a taking is executed which provides for the transfer of, a material
portion of the Premises, including but not limited to the taking (or transfer
in lieu thereof) of any portion which would result in the blockage or
substantial impairment of access or utility service to the Improvements or
which would cause the Premises to fail to comply with any Legal Requirement. 


          (n) Liquidation,
Etc. The liquidation, termination, dissolution, merger, consolidation or
failure to maintain good standing in the State of New York and/or the state of
incorporation or organization, if different (or in the case of an individual,
the death or legal incapacity) of the Mortgagor, any owner of the Property or
any person obligated to pay any part of the Secured Indebtedness. 


          (o) Material,
Adverse Change. In Mortgagee’s reasonable opinion, the prospect of payment
of all or any part of the Secured Indebtedness has been impaired because of a material,
adverse change in the financial condition, results of operations, business or
properties of the Mortgagor, any owner of the Property or any person liable,
directly or indirectly, for any of the Secured Indebtedness, or of any general
partner or joint venturer thereof (if such owner or other person is a
partnership or joint venture). 


          (p) Enforceability;
Priority. Any Loan Document shall for any reason without Mortgagee’s
specific written consent cease to be in full force and effect, or shall be
declared null and void or unenforceable in whole or in part, or the validity or
enforceability thereof, in whole or in part, shall be challenged or denied by
any party thereto other than Mortgagee; or the liens, mortgages or security
interests of Mortgagee in any of the Property become unenforceable in whole or
in part, or cease to be of the priority herein required, or the validity or
enforceability thereof, in whole or in part, shall be challenged or denied by
Mortgagor or any person obligated to pay any part of the Secured Indebtedness. 


25





          (q) Other
Indebtedness. A default or event of default occurs under any document
executed and delivered in connection with any other indebtedness (to Mortgagee
or any other person or entity) of Mortgagor, the owner of the Property, any
person obligated to pay any part of the Secured Indebtedness, or any person or
entity which guarantees such other indebtedness. 


          Section
4.2. Notice and Cure. If any provision of this Mortgage or any other
Loan Document provides for Mortgagee to give to Mortgagor any notice regarding
a default or incipient default, then if Mortgagee shall fail to give such
notice to Mortgagor as provided, the sole and exclusive remedy of Mortgagor for
such failure shall be to seek appropriate equitable relief to enforce the
agreement to give such notice and to have any acceleration of the maturity of
the Note and the Secured Indebtedness postponed or revoked and foreclosure
proceedings in connection therewith delayed or terminated pending or upon the
curing of such default in the manner and during the period of time permitted by
such agreement, if any, and Mortgagor shall have no right to damages or any
other type of relief not herein specifically set out against Mortgagee, all of which
damages or other relief are hereby waived by Mortgagor. Nothing herein or in
any other Loan Document shall operate or be construed to add on or make
cumulative any cure or grace periods specified in any of the Loan Documents. 


ARTICLE 5


Remedies


          Section
5.1. Certain Remedies. If a Default shall occur, Mortgagee may (but
shall have no obligation to) exercise any one or more of the following
remedies, without notice (unless notice is required by applicable statute): 


          (a) Acceleration.
Mortgagee may at any time and from time to time declare any or all of the
Secured Indebtedness immediately due and payable and may terminate any and all
Swap Transactions. Upon any such declaration, such Secured Indebtedness shall
thereupon be immediately due and payable, and such Swap Transactions shall
immediately terminate, without presentment, demand, protest, notice of protest,
notice of acceleration or of intention to accelerate or any other notice or
declaration of any kind, all of which are hereby expressly waived by Mortgagor.
Without limitation of the foregoing, upon the occurrence of a default described
in clauses (A), (C) or (D) of subparagraph (i) of paragraph (d) of Section 4.1,
hereof, all of the Secured Indebtedness shall thereupon be immediately due and
payable, without presentment, demand, protest, notice of protest, declaration
or notice of acceleration or intention to accelerate, or any other notice,
declaration or act of any kind, all of which are hereby expressly waived by
Mortgagor. 


          (b) Enforcement
of Assignment of Rents. In addition to the rights of Mortgagee under
Article 3 hereof, prior or subsequent to taking possession of any portion of
the Property or taking any action with respect to such possession, Mortgagee
may: (1) collect and/or sue for the Rents in Mortgagee’s own name, give
receipts and releases therefor, and after deducting all expenses of collection,
including attorneys’ fees and expenses, apply the net proceeds thereof to the
Secured Indebtedness in such manner and order as Mortgagee may elect and/or to
the operation and management of the Property, including the payment of
management, brokerage 


26





and attorney’s fees and expenses; and (2) require Mortgagor to transfer
all security deposits and records thereof to Mortgagee together with original
counterparts of the Leases. 


          (c) Mortgagee’s
Right to Enter and Take Possession, Operate and Apply Income. 


	
 
	
 

	
 
	
          (i)
Mortgagee may demand that Mortgagor surrender the actual possession of the
Property and upon such demand, Mortgagor shall forthwith surrender same to
Mortgagee and, to the extent permitted by law, Mortgagee itself, or by such
officers or agents as it may appoint, may enter and take possession of all of
the Property and may exclude Mortgagor and its agents and employees wholly
therefrom. 

	
 
	
 

	
 
	
          (ii) If
Mortgagor shall for any reason fail to surrender or deliver the Property or
any part thereof after Mortgagee’s demand, Mortgagee may obtain a judgment or
order conferring on Mortgagee the right to immediate possession or requiring
the Mortgagor to deliver immediate possession to Mortgagee, to the entry of
which judgment or decree the Mortgagor hereby specifically consents. 

	
 
	
 

	
 
	
          (iii)
Mortgagee may from time to time: (A) continue and complete construction of,
hold, store, use, operate, manage and control the Property and conduct the
business thereof; (B) make all reasonably necessary maintenance, repairs,
renewals, replacements, additions, betterments and improvements thereto and
thereon and purchase or otherwise acquire additional personal property; (C)
insure or keep the Property insured; (D) exercise all the rights and powers
of the Mortgagor in its name or otherwise with respect to the same; and (E)
enter into agreements with others (including, without limitation, new Leases
or amendments, extensions, or cancellations to existing Leases) all as
Mortgagee from time to time may determine in its sole discretion. Mortgagor
hereby constitutes and irrevocably appoints Mortgagee its true and lawful
attorney-in-fact, which appointment is coupled with an interest, with full
power of substitution, and empowers said attorney or attorneys in the name of
Mortgagor, but at the option of said attorney-in-fact, to do any and all acts
and execute any and all agreements that Mortgagee may deem necessary or
proper to implement and perform any and all of the foregoing. 




          (d) Uniform
Commercial Code. Mortgagee may exercise any or all of its rights and
remedies under the Uniform Commercial Code as adopted by the State of New York
as in effect from time to time, (or under the Uniform Commercial Code in force
from time to time in any other state to the extent the same is applicable law)
or other applicable law as well as all other rights and remedies possessed by
Mortgagee, all of which shall be cumulative. Mortgagee is hereby authorized and
empowered to enter the Property or other place where the collateral may be
located without legal process, and to take possession of such personal property
without notice or demand, which hereby are waived to the maximum extent
permitted by the laws of the State of New York. Upon demand by Mortgagee,
Mortgagor shall make such personal property available to Mortgagee at a place
reasonably convenient to Mortgagee. Mortgagee may proceed under the Uniform
Commercial Code as to all or any part of such personal property, and in
conjunction therewith may exercise all of the rights, remedies and powers of a
secured creditor under the Uniform Commercial Code. Any notification required
by the Uniform Commercial Code shall be deemed reasonably and properly given if
sent in accordance with the Notice provisions of this Mortgage at least ten
(10) days before any sale or other disposition of such 


27





personal property. Mortgagee may choose to dispose of some or all of
the property, in any combination consisting of both personal property and
Property, in one or more public or private sales to be held in accordance with
the Law and procedures applicable to real property, as permitted by Article 9
of the Uniform Commercial Code. Mortgagor agrees that such a sale of such
personal property together with Property constitutes a commercially reasonable
sale of such personal property. 


          (e) Lawsuits.
Mortgagee may proceed by a suit or suits in equity or at law, whether for
collection of the indebtedness secured hereby, the specific performance of any
covenant or agreement herein contained or in aid of the execution of any power
herein granted, or for any foreclosure hereunder or for the sale of the
Property under the judgment or decree of any court or courts of competent
jurisdiction. Mortgagor hereby assents to the passage of a decree for the sale
of the Property by any equity court having jurisdiction. 


          (f) Foreclosure.
Mortgagee may: 


	
 
	
 

	
 
	
          (1) sell
the Mortgaged Property to the extent permitted and pursuant to the procedures
provided by law (including, without limitation, in accordance with Article 14
of the New York Real Property Actions and Proceedings Law, regarding which
Mortgagor hereby consents and agrees that notices thereunder (including
notices of sale) may be given to Mortgagor in any of the manners specified
for the giving of notices set forth in Section 6.13, and all estate, right,
title and interest, claim and demand thereof, at one (1) or more sales as an
entity or in parcels or parts, and at such time and place upon such terms and
after such notice thereof as may be required or permitted by law; or 

	
 
	
 

	
 
	
          (2)
institute proceedings for the complete or partial foreclosure hereof; or 

	
 
	
 

	
 
	
          (3) take
such steps to protect and enforce its rights whether by action, suit or
proceeding in equity or at law for the specific performance of any covenant,
condition or agreement in the Note, the Loan Agreement or herein, or in aid
of the execution of any power herein granted, or for any foreclosure
hereunder, or for the enforcement of any other appropriate legal or equitable
remedy or otherwise as Mortgagee shall elect. 




          Any sale
made hereunder may be as an entirety or in such parcels as Mortgagee may
request. To the extent permitted by applicable law, any sale may be adjourned
by announcement at the time and place appointed for such sale without further
notice except as may be required by law. If the proceeds of such sale of less
than the whole of the Property shall be less than the aggregate of the Secured
Indebtedness, this Mortgage and the lien hereof shall remain in full force and
effect as to the unsold portion of the Property just as though no sale had been
made and the rights of Mortgagee to foreclose hereunder shall also apply to any
future sales. A sale may cover not only the Property but also personal property
and other interests which are a part of the Property, or any part thereof, as a
unit and as a part of a single sale, or the sale may be of any part of the
Property separately from the remainder of the Property. After each sale, the
Mortgagee shall make to the purchaser or purchasers at such sale good and
sufficient conveyances, conveying the property so sold to the purchaser or
purchasers in fee simple, subject to the Permitted Encumbrances (and to such
leases and other matters, if any), and shall receive the proceeds of said sale
or sales and apply the same as herein provided. In the event any sale 


28





hereunder is not completed or is defective in the opinion of Mortgagee,
such sale shall not exhaust the rights hereunder and Mortgagee shall have the
right to cause a subsequent sale or sales to be made hereunder. Any and all
statements of fact or other recitals made in any deed or deeds or other
conveyances given by the Mortgagee as to nonpayment of the Secured Indebtedness
or as to the occurrence of any default, or as to Mortgagee’s having declared
all of said indebtedness to be due and payable, or as to the request to sell,
or as to notice of time, place and terms of sale and the properties to be sold
having been duly given, or as to any other act or thing having been duly done
by Mortgagee shall be taken as prima facie evidence of the truth of the facts
so stated and recited. 


          (g) Receiver.
Mortgagee may apply to any court of competent jurisdiction to have a receiver
appointed to enter upon and take possession of the Property, collect the Rents
therefrom and apply the same as the court may direct, such receiver to have all
of the rights and powers permitted under the laws of the State of New York. To
the extent permitted by law, the right of the appointment of such receiver
shall be a matter of strict right without regard to the value or the occupancy
of the Property or the solvency or insolvency of Mortgagor. The expenses,
including receiver’s fees, attorneys’ fees, costs and agent’s commission
incurred pursuant to the powers herein contained, together with interest
thereon at the default rate under the Note, shall be secured hereby and shall
be due and payable by Mortgagor immediately without notice or demand.
Notwithstanding the appointment of any receiver or other custodian, Mortgagee
shall be entitled as pledgee to the possession and control of any cash or
deposits at the time held by, payable, or deliverable under the terms of this
Mortgage to the Mortgagee, and the Mortgagee shall have the right to offset the
unpaid Secured Indebtedness against any such cash or deposits in such order as
Mortgagee may elect. 


          (h) Termination
of Commitment to Lend. Mortgagee may terminate any commitment or obligation
to lend or disburse funds under any Loan Document or enter into any other
credit arrangement to or for the benefit of Mortgagor. 


          (i) Other
Rights and Remedies. Mortgagee may exercise any and all other rights and
remedies which Mortgagee may have under the Loan Documents, or at law or in
equity or otherwise. 


          Section
5.2. Application of Proceeds. Unless otherwise provided by applicable
Law, all proceeds from the sale of the Property or any part thereof pursuant to
the rights and remedies set forth in this Article 5 and any other proceeds
received by Mortgagee from the exercise of any of its other rights and remedies
hereunder or under the other Loan Documents shall be applied first to pay all
Expenses and next in reduction of the other Secured Indebtedness, in such
manner and order as Mortgagee may elect. 


          Section
5.3. Remedies Cumulative and Concurrent. No right, power or remedy of
Mortgagee as provided in the Note, this Mortgage, or the other Loan Documents
is intended to be exclusive of any other right, power, or remedy of Mortgagee,

but each and every such right, power and remedy shall be cumulative and
concurrent and in addition to any other right, power or remedy available to
Mortgagee now or hereafter existing at law or in equity and may be pursued
separately, successively or together against Mortgagor, or any endorser,
co-maker, surety or guarantor of the Secured Indebtedness, or the Property or
any part thereof, or any one 


29





or more of them, at the sole discretion of Mortgagee. The failure of
Mortgagee to exercise any such right, power or remedy shall in no event be
construed as a waiver or release thereof. 


          Section
5.4. Waiver, Delay or Omission. No waiver of any Default hereunder shall
extend to or affect any subsequent or any other Default then existing, or
impair any rights, powers or remedies consequent thereon, and no delay or
omission of Mortgagee to exercise any right, power or remedy shall be construed
to waive any such Default or to constitute acquiescence therein. 


          Section
5.5. Credit of Mortgagee. To the maximum extent permitted by the laws of
the State of New York, upon any sale made under or by virtue of this Article,
Mortgagee may bid for and acquire the Property, or any part thereof, and in
lieu of paying cash therefor may apply to the purchase price, any portion of or
all of the unpaid Secured Indebtedness in such order as Mortgagee may elect. 


          Section
5.6. Sale. Any sale or sales made under or by virtue of this Article
shall operate to divest all the estate, right, title, interest, claim and
demand whatsoever at law or in equity, of the Mortgagor and all persons, except
tenants pursuant to Leases approved by Mortgagee, claiming by, through or under
Mortgagor in and to the properties and rights so sold, whether sold to
Mortgagee or to others. 


          Section
5.7. Proofs of Claim. In the case of any receivership, insolvency,
bankruptcy, reorganization, arrangement, adjustment, composition, seizure of
the Property by any Governmental Authority, or other judicial proceedings
affecting the Mortgagor, any endorser, co-maker, surety, or guarantor of the
Secured Indebtedness, or any of their respective properties, the Mortgagee, to
the extent permitted by law, shall be entitled to file such proofs of claim and
other documents as may be necessary or advisable in order to have its claim
allowed in such proceedings for the entire unpaid Secured Indebtedness at the
date of the institution of such proceedings, and for any additional amounts
which may become due and payable after such date. 


          Section
5.8. Waiver of Redemption, Notice, Marshalling, Etc. Mortgagor hereby
waives and releases, for itself and anyone claiming through, by, or under it,
to the maximum extent permitted by the laws of the State of New York: 


	
 
	
 

	
 
	
          (i) all
benefit that might accrue to Mortgagor by virtue of any present or future law
exempting the Property, or any part of the proceeds arising from any sale
thereof, from attachment, levy or sale on execution, or providing for any
appraisement, valuation, stay of execution, exemption from civil process,
redemption or extension of time for payment, 

	
 
	
 

	
 
	
          (ii)
unless specifically required herein, all notices of default, or Mortgagee’s
actual exercise of any option or remedy under the Loan Documents, or
otherwise, and 

	
 
	
 

	
 
	
          (iii) any
right to have the Property marshaled. 




          Section
5.9. Discontinuance of Proceedings. If Mortgagee shall have proceeded to
enforce any right under any Loan Document and such proceedings shall have been
discontinued or abandoned for any reason, then except as may be provided in any
written agreement between 


30





Mortgagor and Mortgagee providing for the discontinuance or abandonment
of such proceedings, Mortgagor and Mortgagee shall be restored to their former
positions and the rights, remedies and powers of Mortgagee shall continue as if
no such proceedings had been instituted.


          Section
5.10. Mortgagee’s Actions. Mortgagee may, at any time without notice to
any person and without consideration, do or refrain from doing any or all of
the following actions, and neither the Mortgagor, any endorser, co-maker,
surety or guarantor of the Secured Indebtedness, nor any other person
(hereinafter in this Section collectively referred to as the “Obligor”)
now or hereafter liable for the payment and performance of the Secured
Indebtedness shall be relieved from the payment and performance thereof, unless
specifically released in writing by Mortgagee: (a) renew, extend or modify
the terms of the Note, this Mortgage and the other Loan Documents, or any of
them; (b) forbear or extend the time for the payment or performance of any
or all of the Secured Indebtedness; (c) apply payments by any Obligor to
the reduction of the unpaid Secured Indebtedness in such manner, in such
amounts, and at such times and in such order and priority as Mortgagee may see
fit; (d) release any Obligor; (e) substitute or release in whole or
in part the Property or any other collateral or any portion thereof now or
hereafter held as security for the Secured Indebtedness without affecting,
disturbing or impairing in any manner whatsoever the validity and priority of
the lien of this Mortgage upon the Property which is not released or
substituted, or the validity and priority of any security interest of the
Mortgagee in such other collateral which is not released or substituted;
(f) subordinate the lien of this Mortgage or the lien of any other
security interest in any other collateral now or hereafter held as security for
the Secured Indebtedness; (g) join in the execution of a plat or replat of
the Land (provided, however, notwithstanding the foregoing, Mortgagee will join
in such plat or replat of the Land so long as such plat or replat is acceptable
to Mortgagee); (h) join in and consent to the filing of a declaration of
condominium or declaration of restrictive covenants regarding all or any part of
the Land; (i) consent to the granting of any easement on the Land; and
(j) generally deal with any obligor or any other party as Mortgagee may
see fit.


          Section
5.11. Other Remedies. Mortgagee shall have the right from time to time
to protect, exercise and enforce any legal or equitable remedy against
Mortgagor provided under the Loan Documents or by applicable Laws.


ARTICLE 6


Miscellaneous


          Section
6.1. Scope of Mortgage. This Mortgage is a Mortgage of both real and
personal property, a security agreement, an assignment of rents and leases, a
financing statement and fixture filing and a collateral assignment, and also
covers proceeds and fixtures.


          Section
6.2. Effective as a Financing Statement. This Mortgage shall be
effective as a financing statement filed as a fixture filing with respect to
all fixtures included within the Property and is to be filed for record in the
real estate records of each county where any part of the Property (including
said fixtures) is situated. This Mortgage shall also be effective as a
financing statement covering as-extracted collateral (including oil and gas),
accounts and general 


31





intangibles under the New York Uniform Commercial Code, as in effect
from time to time, and the Uniform Commercial Code, as in effect from time to
time, in any other state where the Property is situated which will be financed
at the wellhead or minehead of the wells or mines located on the Property and
is to be filed for record in the real estate records of each county where any
part of the Property is situated. This Mortgage shall also be effective as a
financing statement covering any other Property and may be filed in any other
appropriate filing or recording office. The mailing address of Mortgagor and
the Mortgagee are set forth in the preamble of this Mortgage and the address of
Mortgagee from which information concerning the security interests hereunder
may be obtained is the address of Mortgagee set forth at the end of this
Mortgage. A carbon, photographic or other reproduction of this Mortgage or of
any financing statement relating to this Mortgage shall be sufficient as a
financing statement for any of the purposes referred to in this Section.


          Section
6.3. Notice to Account Debtors. In addition to the rights granted
elsewhere in this Mortgage, Mortgagee may at any time notify the account
debtors or obligors of any accounts, chattel paper, general intangibles,
negotiable instruments or other evidences of indebtedness included in the
Collateral to pay Mortgagee directly.


          Section
6.4. Waiver by Mortgagee. Mortgagee may at any time and from time to
time by a specific writing intended for the purpose: (a) waive compliance by
Mortgagor with any covenant herein made by Mortgagor to the extent and in the
manner specified in such writing; (b) consent to Mortgagor’s doing any act
which hereunder Mortgagor is prohibited from doing, or to Mortgagor’s failing
to do any act which hereunder Mortgagor is required to do, to the extent and in
the manner specified in such writing; (c) release any part of the Property or
any interest therein from the lien and security interest of this Mortgage,
without the joinder of Mortgagee; or (d) release any party liable, either
directly or indirectly, for the Secured Indebtedness or for any covenant herein
or in any other Loan Document, without impairing or releasing the liability of
any other party. No such act shall in any way affect the rights or powers of
Mortgagee or Mortgagee hereunder except to the extent specifically agreed to by
Mortgagee in such writing.


          Section
6.5. No Impairment of Security. The lien, security interest and other
security rights of Mortgagee hereunder or under any other Loan Document shall
not be impaired by any indulgence, moratorium or release granted by Mortgagee
including, but not limited to, any renewal, extension or modification which
Mortgagee may grant with respect to any Secured Indebtedness, or any surrender,
compromise, release, renewal, extension, exchange or substitution which Mortgagee
may grant in respect of the Property, or any part thereof or any interest
therein, or any release or indulgence granted to any endorser, guarantor or
surety of any Secured Indebtedness. The taking of additional security by
Mortgagee shall not release or impair the lien, security interest or other
security rights of Mortgagee hereunder or affect the liability of Mortgagor or
of any endorser, guarantor or surety, or improve the right of any junior lien
Mortgagee in the Property (without implying hereby Mortgagee’s consent to any
junior lien).


          Section
6.6. Acts Not Constituting Waiver by Mortgagee. Mortgagee may waive any
default without waiving any other prior or subsequent default. Mortgagee may
remedy any default without waiving the default remedied. Neither failure by
Mortgagee to exercise, nor delay by Mortgagee in exercising, nor discontinuance
of the exercise of any right, power or remedy (including but not limited to the
right to accelerate the maturity of the Secured 


32





Indebtedness or any part thereof) upon or after any default shall be
construed as a waiver of such default or as a waiver of the right to exercise
any such right, power or remedy at a later date. No single or partial exercise
by Mortgagee of any right, power or remedy hereunder shall exhaust the same or
shall preclude any other or further exercise thereof, and every such right,
power or remedy hereunder may be exercised at any time and from time to time.
No modification or waiver of any provision hereof nor consent to any departure
by Mortgagor therefrom shall in any event be effective unless the same shall be
in writing and signed by Mortgagee and then such waiver or consent shall be
effective only in the specific instance, for the purpose for which given and to
the extent therein specified. No notice to nor demand on Mortgagor in any case
shall of itself entitle Mortgagor to any other or further notice or demand in
similar or other circumstances. Remittances in payment of any part of the
Secured Indebtedness other than in the required amount in immediately available
U.S. funds shall not, regardless of any receipt or credit issued therefor,
constitute payment until the required amount is actually received by Mortgagee
in immediately available U.S. funds and shall be made and accepted subject to
the condition that any check or draft may be handled for collection in
accordance with the practice of the collecting bank or banks. Acceptance by
Mortgagee of any payment in an amount less than the amount then due on any
Secured Indebtedness shall be deemed an acceptance on account only and shall
not in any way excuse the existence of a default hereunder notwithstanding any

notation on or accompanying such partial payment to the contrary.


          Section
6.7. Mortgagor’s Successors. If the ownership of the Property or any
part thereof becomes vested in a person other than Mortgagor, Mortgagee may,
without notice to Mortgagor, deal with such successor or successors in interest
with reference to this Mortgage and to the Secured Indebtedness in the same
manner as with Mortgagor, without in any way vitiating or discharging
Mortgagor’s liability hereunder or for the payment of the indebtedness or
performance of the obligations secured hereby. No transfer of the Property, no
forbearance on the part of Mortgagee, and no extension of the time for the
payment of the Secured Indebtedness given by Mortgagee shall operate to
release, discharge, modify, change or affect, in whole or in part, the
liability of Mortgagor hereunder for the payment of the indebtedness or
performance of the obligations secured hereby or the liability of any other
person hereunder for the payment of the indebtedness secured hereby. Each
Mortgagor agrees that it shall be bound by any modification of this Mortgage or
any of the other Loan Documents made by Mortgagee and any subsequent owner of
the Property, with or without notice to such Mortgagor, and no such
modifications shall impair the obligations of such Mortgagor under this
Mortgage or any other Loan Document. Nothing in this Section or elsewhere in
this Mortgage shall be construed to imply Mortgagee’s consent to any transfer
of the Property.


          Section
6.8. Place of Payment. All Secured Indebtedness which may be owing
hereunder at any time by Mortgagor shall be payable at the place designated in
the Note (or if no such designation is made, at the address of Mortgagee
indicated at the end of this Mortgage). 


          Section
6.9. Subrogation to Existing Liens; Vendor’s Lien. To the extent that
proceeds of the Note are used to pay indebtedness secured by any outstanding
lien, security interest, charge or prior encumbrance against the Property, such
proceeds have been advanced by Mortgagee at Mortgagor’s request, and Mortgagee
shall be subrogated to any and all rights, security interests and liens owned
by any owner or Mortgagee of such outstanding liens, security interests,
charges or encumbrances, however remote, irrespective of whether said liens,
security 


33





interests, charges or encumbrances are released, and all of the same
are recognized as valid and subsisting and are renewed and continued and merged
herein to secure the Secured Indebtedness, but the terms and provisions of this
Mortgage shall govern and control the manner and terms of enforcement of the
liens, security interests, charges and encumbrances to which Mortgagee is
subrogated hereunder. It is expressly understood that, in consideration of the
payment of such indebtedness by Mortgagee, Mortgagor hereby waives and releases
all demands and causes of action for offsets and payments in connection with
the said indebtedness. If all or any portion of the proceeds of the loan
evidenced by the Note or of any other secured indebtedness has been advanced
for the purpose of paying the purchase price for all or a part of the Property,
no vendor’s lien is waived; and Mortgagee shall have, and is hereby granted, a
vendor’s lien on the Property as cumulative additional security for the secured
indebtedness. Mortgagee may foreclose under this Mortgage or under the vendor’s
lien without waiving the other or may foreclose under both.


          Section
6.10. Application of Payments to Certain Indebtedness. If any part of
the Secured Indebtedness cannot be lawfully secured by this Mortgage or if any
part of the Property cannot be lawfully subject to the lien and security
interest hereof to the full extent of such indebtedness, then all payments made
shall be applied on said indebtedness first in discharge of that portion
thereof which is not secured by this Mortgage.


          Section
6.11. Nature of Loan; Compliance with Usury Laws. The loan evidenced by
the Note is being made solely for the purpose of carrying on or acquiring a
business or commercial enterprise. It is the intent of Mortgagor and Mortgagee
and all other parties to the Loan Documents to conform to and contract in
strict compliance with applicable usury law from time to time in effect. All
agreements between Mortgagee and Mortgagor (or any other party liable with
respect to any indebtedness under the Loan Documents) are hereby limited by the
provisions of this Section which shall override and control all such
agreements, whether now existing or hereafter arising. In no way, nor in any
event or contingency (including but not limited to prepayment, default, demand
for payment, or acceleration of the maturity of any obligation), shall the
interest taken, reserved, contracted for, charged, chargeable, or received
under this Mortgage, the Note or any other Loan Document or otherwise, exceed
the maximum nonusurious amount permitted by applicable law (the “Maximum
Amount”). If, from any possible construction of any document, interest would
otherwise be payable in excess of the Maximum Amount, any such construction
shall be subject to the provisions of this Section and such document shall ipso
facto be automatically reformed and the interest payable shall be automatically
reduced to the Maximum Amount, without the necessity of execution of any
amendment or new document. If Mortgagee shall ever receive anything of value
which is characterized as interest under applicable law and which would apart
from this provision be in excess of the Maximum Amount, an amount equal to the
amount which would have been excessive interest shall, without penalty, be
applied to the reduction of the principal amount owing on the Secured
Indebtedness in the inverse order of its maturity and not to the payment of
interest, or refunded to Mortgagor or the other payor thereof if and to the
extent such amount which would have been excessive exceeds such unpaid
principal. The right to accelerate maturity of the Note or any other Secured
Indebtedness does not include the right to accelerate any interest which has
not otherwise accrued on the date of such acceleration, and Mortgagee does not
intend to charge or receive any unearned interest in the event of acceleration.
All interest paid or agreed to be paid to Mortgagee shall, to the extent
permitted by applicable law, 


34





be amortized, prorated, allocated and spread throughout the full stated
term (including any renewal or extension) of such indebtedness so that the
amount of interest on account of such indebtedness does not exceed the Maximum
Amount. As used in this Section, the term “applicable law” shall mean the laws
of the State of New York or the federal laws of the United States applicable to
this transaction, whichever laws allow the greater interest, as such laws now
exist or may be changed or amended or come into effect in the future.


          Section
6.12. Releases.


               (a)
Release of Mortgage. If all of the Secured Indebtedness is paid as the
same becomes due and payable and all of the covenants, warranties, undertakings
and agreements made in this Mortgage are kept and performed, and all Swap
Transactions and all other obligations, if any, of Mortgagee for further
advances have been terminated, then, and in that event only, all rights under
this Mortgage shall terminate (except to the extent expressly provided herein
with respect to indemnifications, representations and warranties and other
rights which are to continue following the release hereof) and the Property
shall become wholly clear of the liens, security interests, conveyances and
assignments evidenced hereby, and such liens and security interests shall be
released by Mortgagee in due form at Mortgagor’s cost. Without limitation, all
provisions herein for indemnity of Mortgagee or Mortgagee shall survive
discharge of the Secured Indebtedness, the termination of any and all Swap
Transactions and any foreclosure, release or termination of this Mortgage.


               (b)
Partial Releases; No Release in Default. Partial releases of the lien of
this Mortgage shall be made in accordance with the terms and provisions of Exhibit
C attached hereto and by this reference made a part hereof, or in
accordance with such other terms and conditions as may subsequently be agreed
to by Mortgagee. If no such Exhibit C is attached hereto, then there are
no terms and provisions for partial releases, to which Mortgagee and Mortgagor
have agreed at this time. In any event, no partial release shall be sought,
requested or required if any Default has occurred which has not been cured.


               (c)
Effect of Partial Release. Mortgagee may, regardless of consideration,
cause the release of any part of the Property from the lien of this Mortgage
without in any manner affecting or impairing the lien or priority of this
Mortgage as to the remainder of the Property.


               (d)
Release Fee. If permitted by applicable law Mortgagor shall pay to
Mortgagee, at the time of each partial or complete release of the lien of this
Mortgage, a release fee in the amount of $25.00 if the release instrument is
delivered to Mortgagee for execution or $50.00, if Mortgagee is required to
prepare the release instrument. In addition, Mortgagor shall pay to Mortgagee a
fee in the amount of $25.00 for each other document or instrument which
Mortgagor requires the Mortgagee to execute.


          Section
6.13. Notices. All notices, requests, consents, demands and other
communications required or which any party desires to give hereunder or under
any other Loan Document shall be in writing and, unless otherwise specifically
provided in such other Loan Document, shall be deemed sufficiently given or
furnished if delivered by personal delivery, by nationally recognized overnight
courier service, or by registered or certified United States mail, postage
prepaid, addressed to the party to whom directed at the addresses specified in
this 


35






Mortgage (unless changed by similar notice in writing given by the
particular party whose address is to be changed) or by facsimile. Any such
notice or communication shall be deemed to have been given either at the time
of personal delivery or, in the case of courier or mail, as of the date of
first attempted delivery at the address and in the manner provided herein, or,
in the case of facsimile, upon receipt; provided that, service of a notice
required by any applicable statute shall be considered complete when the
requirements of that statute are met. Notwithstanding the foregoing, no notice
of change of address shall be effective except upon receipt. This Section shall
not be construed in any way to affect or impair any waiver of notice or demand
provided in any Loan Document or to require giving of notice or demand to or
upon any person in any situation or for any reason.


          Section
6.14. Invalidity of Certain Provisions. A determination that any
provision of this Mortgage is unenforceable or invalid shall not affect the
enforceability or validity of any other provision and the determination that
the application of any provision of this Mortgage to any person or circumstance
is illegal or unenforceable shall not affect the enforceability or validity of
such provision as it may apply to other persons or circumstances.


          Section
6.15. Gender; Titles; Construction. Within this Mortgage, words of any
gender shall be held and construed to include any other gender, and words in
the singular number shall be held and construed to include the plural, unless
the context otherwise requires. Titles appearing at the beginning of any
subdivisions hereof are for convenience only, do not constitute any part of
such subdivisions, and shall be disregarded in construing the language contained
in such subdivisions. The use of the words “herein,” “hereof,” “hereunder” and
other similar compounds of the word “here” shall refer to this entire Mortgage
and not to any particular Article, Section, paragraph or provision. The term
“person” and words importing persons as used in this Mortgage shall include
firms, associations, partnerships (including limited partnerships), joint
ventures, trusts, corporations, limited liability companies and other legal
entities, including public or governmental bodies, agencies or
instrumentalities, as well as natural persons.


          Section
6.16. Reporting Compliance. Mortgagor agrees to comply with any and all
reporting requirements applicable to the transaction evidenced by the Note and
secured by this Mortgage which are set forth in any law, statute, ordinance,
rule, regulation, order or determination of any governmental authority,
including but not limited to The International Investment Survey Act of 1976,
The Agricultural Foreign Investment Disclosure Act of 1978, The Foreign
Investment in Real Property Tax Act of 1980 and the Tax Reform Act of 1984 and
further agrees upon request of Mortgagee to furnish Mortgagee with evidence of
such compliance.


          Section
6.17. Mortgagee’s Consent. Except where otherwise expressly provided
herein, in any instance hereunder where the approval, consent or the exercise
of judgment of Mortgagee is required or requested, (a) the granting or denial
of such approval or consent and the exercise of such judgment shall be within
the sole discretion of Mortgagee, and Mortgagee shall not, for any reason or to
any extent, be required to grant such approval or consent or exercise such
judgment in any particular manner, regardless of the reasonableness of either
the request or Mortgagee’s judgment, and (b) no approval or consent of
Mortgagee shall be deemed to have been given 


36





except by a specific writing intended for the purpose and executed by
an authorized representative of Mortgagee.


          Section
6.18. Mortgagor. Unless the context clearly indicates otherwise, as used
in this Mortgage, “Mortgagor” means the Mortgagors named in Section 1.1 hereof
or any of them. The obligations of Mortgagor hereunder shall be joint and
several. If any Mortgagor, or any signatory who signs on behalf of any
Mortgagor, is a corporation, partnership or other legal entity, Mortgagor and
any such signatory, and the person or persons signing for it, represent and
warrant to Mortgagee that this instrument is executed, acknowledged and
delivered by Mortgagor’s duly authorized representatives. If Mortgagor is an
individual, no power of attorney granted by Mortgagor herein shall terminate on
Mortgagor’s disability.


          Section
6.19. Execution; Recording. This Mortgage has been executed in several
counterparts, all of which are identical, and all of which counterparts
together shall constitute one and the same instrument. The date or dates
reflected in the acknowledgments hereto indicate the date or dates of actual
execution of this Mortgage, but such execution is as of the date shown on the
first page hereof, and for purposes of identification and reference the date of
this Mortgage shall be deemed to be the date reflected on the first page
hereof. Mortgagor will cause this Mortgage and all amendments and supplements
thereto and substitutions therefor and all financing statements and
continuation statements relating thereto to be recorded, filed, re-recorded and
refiled in such manner and in such places as or Mortgagee shall reasonably
request and will pay all such recording, filing, re-recording and refiling
taxes, fees and other charges.


          Section
6.20. Successors and Assigns. The terms, provisions, covenants and
conditions hereof shall be binding upon Mortgagor, and the heirs, devisees, representatives,
successors and assigns of Mortgagor, and shall inure to the benefit of
Mortgagee and shall constitute covenants running with the Land. All references
in this Mortgage to Mortgagor shall be deemed to include all such heirs,
devisees, representatives, successors and assigns of Mortgagor.


          Section
6.21. Modification or Termination. The Loan Documents may only be
modified or terminated by a written instrument or instruments intended for that
purpose and executed by the party against which enforcement of the modification
or termination is asserted. Any alleged modification or termination which is
not so documented shall not be effective as to any party.


          Section
6.22. No Partnership, Etc. The relationship between Mortgagee and Mortgagor
is solely that of mortgagee and mortgagor. Mortgagee has no fiduciary or other
special relationship with Mortgagor. Nothing contained in the Loan Documents is
intended to create any partnership, joint venture, association or special
relationship between Mortgagor and Mortgagee or in any way make Mortgagee a
co-principal with Mortgagor with reference to the Property. All agreed
contractual duties between or among Mortgagee and Mortgagor and are set forth
herein and in the other Loan Documents and any additional implied covenants or
duties are hereby disclaimed. Any inferences to the contrary of any of the
foregoing are hereby expressly negated.


          Section
6.23. Intentionally Omitted. 


37





          Section
6.24. Applicable Law. THIS MORTGAGE, AND ITS VALIDITY, ENFORCEMENT AND
INTERPRETATION, SHALL BE GOVERNED BY NEW YORK LAW AND CONSTRUED, INTERPRETED
AND ENFORCED IN ACCORDANCE WITH AND PURSUANT TO THE LAWS OF THE STATE OF NEW
YORK (WITHOUT REGARD TO ANY CONFLICT OF LAWS PRINCIPLES) AND APPLICABLE UNITED
STATES FEDERAL LAW, EXCEPT AS OTHERWISE REQUIRED BY MANDATORY PROVISIONS OF LAW
AND EXCEPT TO THE EXTENT THAT REMEDIES PROVIDED BY THE LAWS OF ANY JURISDICTION
OTHER THAN THE STATE OF NEW YORK ARE GOVERNED BY THE LAWS OF SUCH OTHER
JURISDICTION.


          Section
6.25. Entire Agreement. The Loan Documents constitute the entire
understanding and agreement between Mortgagor and Mortgagee with respect to the
transactions arising in connection with the Secured Indebtedness and supersede
all prior written or oral understandings and agreements between Mortgagor and
Mortgagee with respect to the matters addressed in the Loan Documents.
Mortgagor hereby acknowledges that, except as incorporated in writing in the
Loan Documents, there are not, and were not, and no persons are or were
authorized by Mortgagee to make, any representations, understandings,
stipulations, agreements or promises, oral or written, with respect to the
matters addressed in the Loan Documents.


          Section
6.26. Forum. Mortgagor hereby irrevocably submits generally and
unconditionally for itself and in respect of its property to the jurisdiction
of any state court or any United States federal court sitting in the State of
New York and to the jurisdiction of any state court or any United States
federal court sitting in the state in which any of the Property is located,
over any Dispute. Mortgagor hereby irrevocably waives, to the fullest extent
permitted by Law, any objection that Mortgagor may now or hereafter have to the
laying of venue in any such court and any claim that any such court is an
inconvenient forum. Mortgagor hereby agrees and consents that, in addition to
any methods of service of process provided for under applicable law, all
service of process in any such suit, action or proceeding in any state court or
any United States federal court sitting in the State of New York may be made by
certified or registered mail, return receipt requested, directed to Mortgagor
at its address for notice set forth in this Mortgage, or at a subsequent
address of which Mortgagee received actual notice from Mortgagor in accordance
with the notice section of this Mortgage, and service so made shall be complete
five (5) days after the same shall have been so mailed. Nothing herein shall
affect the right of Mortgagee to serve process in any manner permitted by Law
or limit the right of Mortgagee to bring proceedings against Mortgagor in any
other court or jurisdiction.


          Section
6.27. WAIVER
OF JURY TRIAL. WITHOUT INTENDING IN ANY WAY TO LIMIT THE PARTIES’
AGREEMENT TO ARBITRATE ANY DISPUTE AS SET FORTH IN THIS MORTGAGE, TO THE EXTENT
ANY DISPUTE IS NOT SUBMITTED TO ARBITRATION OR IS DEEMED BY THE ARBITRATOR OR
BY ANY COURT WITH JURISDICTION TO BE NOT ARBITRABLE OR NOT REQUIRED TO BE ARBITRATED,
MORTGAGOR AND MORTGAGEE WAIVE TRIAL BY JURY IN RESPECT OF ANY SUCH DISPUTE AND
ANY ACTION ON SUCH DISPUTE. THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY
MADE BY MORTGAGOR AND MORTGAGEE, AND MORTGAGOR AND MORTGAGEE HEREBY REPRESENT
THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY PERSON 


38 





OR
ENTITY TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR
NULLIFY ITS EFFECT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES
ENTERING INTO THE LOAN DOCUMENTS. MORTGAGOR AND MORTGAGEE ARE EACH HEREBY
AUTHORIZED TO FILE A COPY OF THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE
EVIDENCE OF THIS WAIVER OF JURY TRIAL. MORTGAGOR FURTHER REPRESENTS AND
WARRANTS THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS MORTGAGE AND IN
THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, OR HAS HAD THE
OPPORTUNITY TO BE REPRESENTED BY INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN
FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH
COUNSEL.


          Section 6.28.
Cross-Default. The Loan shall be cross-defaulted with all other loans
which Mortgagor shall have from Lenders during the term of the Loan, whether
existing as of the date of this Agreement subsequently made. A default under
any of the above-described loans shall constitute a Default under the Loan. A
Default under the Loan shall constitute a Default under the above-described
other loans. To the extent not prohibited by applicable law, if Mortgagee, at
its option, avails itself of this cross-default provision, Mortgagee shall have
the option to pursue its remedies in any combinations and against any or all of
Mortgagee’s security for the aforesaid loans, whether successively,
concurrently or otherwise.


          Section
6.29. Substitute Mortgages. Mortgagor and Mortgagee shall, upon their
mutual agreement to do so, execute such documents as may be necessary in order
to effectuate the modification hereof, including the execution of substitute
mortgages, so as to create two (2) or more liens on the Mortgaged Property in
such amounts as may be mutually agreed upon but in no event to exceed, in the
aggregate, the Mortgage Amount; in such event, Mortgagor covenants and agrees
to pay the reasonable fees and expenses of Mortgagee and its counsel in
connection with any such modification.


          Section
6.30. Satisfaction or Assignment of Mortgage. Upon payment in full of
all sums, and the performance of all obligations, secured hereby in accordance
with the terms and conditions of this Mortgage and the other Loan documents,
Mortgagee shall deliver a satisfaction or release of this Mortgage or, at
Mortgagor’s option to be exercised in writing, an assignment hereof, in either
case in proper form of recording. As a condition to any such satisfaction or
assignment, Mortgagor covenants and agrees to pay Mortgagee’s reasonable fees
and expenses (including attorneys’ fees and expenses) in connection therewith.
Upon any such satisfaction or assignment, Mortgagee shall, automatically and
without the need for any other further documentation, be absolutely and
unconditionally released from any and all claims or liabilities in connection
with the Loan. In addition, Mortgagor hereby indemnifies and agrees to hold
Mortgagee harmless from and against any and all claims and liabilities arising
out of the satisfaction or assignment hereof, such indemnification to survive
any such satisfaction or assignment.


          Section
6.31. New York Provisions. (a) Mortgagor hereby makes the following
statement: “This Mortgage does not cover real property principally improved or
to be improved by one (1) or more structures containing in the aggregate not
more than six (6) residential 


39





dwelling, each having its own separate cooking facilities.” and (b) the
covenants and conditions contained herein, other than those included in the New
York Statutory Short Form of Mortgage, shall be construed as affording to
Mortgagee rights additional to, and not exclusive of, the rights conferred
under the provisions of Section 254 of the Real Property Law of the State of
New York. 


40






          IN WITNESS
WHEREOF, Mortgagor has executed this Mortgage as an instrument under seal as of
the date first written on page 1 hereof. 


	
  
 	
  
 	
  
 
	
  
 	
 ACADIA
 CORTLANDT LLC, a Delaware limited liability company
 
	
  
 	
  
 
	
  
 	
 By
 	
  
 
	
  
 	
  
 	

 
 
	
  
 	
  
 	
 Robert
 Masters
 
	
  
 	
  
 	
 Senior Vice
 President
 













	
  
 	
  
 	
  
 
	
 STATE OF NEW
 YORK
 	
 )
 	
  
 
	
  
 	
 :
 	
 ss.:
 
	
 COUNTY OF
 NEW YORK 
 	
 )
 	
  
 


          On the
______ day of October in the year 2010, before me, the undersigned, a notary
public in and for said state, personally appeared Robert Masters, personally
known to me or proved to me on the basis of satisfactory evidence to be the
individual(s) whose name(s) is (are) subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument. 


	
  
 	
  
 
	
  
 	

 
 
	
  
 	
 Notary
 Public 
 
	
  
 	
  
 
	
 My
 Commission Expires: 
 	
  
 
	
  
 	
  
 
	
  
 	
  
 
	

 
 	
  
 









EXHIBIT A


Land


ALL THAT CERTAIN PARCEL OF LAND SITUATE IN THE TOWN OF CORTLANDT,
COUNTY OF WESTCHESTER AND STATE OF NEW YORK THAT IS A PORTION OF THOSE LANDS
DESIGNATED PARCEL 1, PARCEL 2A AND PARCEL 2B ON THAT CERTAIN “RESUBDIVISION
PLAT OF FILED MAP NO. 17837 SECTION 1 MID-WESTCHESTER INDUSTRIAL PARK, INC.,”
WHICH WAS FILED IN THE WESTCHESTER COUNTY CLERK’S OFFICE ON OCTOBER 15, 1984 AS
MAP NO. 21741 THAT IS BOUNDED AND DESCRIBED AS FOLLOWS: 


BEGINNING AT A POINT ON THE SOUTHEASTERLY LINE OF U.S. ROUTE 6 (AKA 5
MILE TURNPIKE AND/OR EAST MAIN STREET AND/OR STATE HIGHWAY 1309) WHERE IT IS
MET BY THE LINE DIVIDING THE LANDS HEREIN DESCRIBED ON THE NORTHEAST FROM LANDS
DESIGNATED LOT NO. 21 ON THAT CERTAIN “MAP NO. 1 GULL MANOR..,” WHICH WAS FILED IN THE WESTCHESTER COUNTY CLERK’S OFFICE ON
MARCH 25, 1954 AS MAP NO. 8930, WHICH POINT OCCUPIES COORDINATE POSITION 


	
  
 
	
 N 476,045.23
 (Y)
 
	
 E 625,146.49
 (X) OF THE NEW YORK STATE COORDINATE SYSTEM, EAST ZONE; 
 


THENCE FROM THE SAID POINT OF BEGINNING NORTHEASTERLY ALONG THE
SOUTHEASTERLY LINE OF U.S. ROUTE 6 NORTH 31° 31’ 51” EAST 202.41 FEET AND TO A
POINT AT THE SOUTHWESTERLY LINE OF LOT NO. 4 SHOWN ON THAT CERTAIN MAP ENTITLED
“SECTION NO. 1 MID-WESTCHESTER INDUSTRIAL PARK” WHICH WAS FILED IN THE
WESTCHESTER COUNTY CLERK’S OFFICE ON OCTOBER 16, 1972 AS MAP NO. 17837; 


THENCE ALONG THE SOUTHWESTERLY, SOUTHEASTERLY AND NORTHEASTERLY LINES
OF LOT NO. 4 SHOWN ON FILED MAP NO. 17837 THE FOLLOWING COURSES: 


	
  
 
	
 SOUTH 54°
 41’ 49” EAST 400.00 FEET;
 
	
 NORTH 35°
 15’ 51” EAST 200.00 FEET; 
 
	
 NORTH 54°
 41’ 49” WEST 201.75 FEET TO A POINT AT THE LINE OF LANDS NOW OR FORMERLY OF
 MOBIL CENTERS, INC; 
 


THENCE ALONG THE SAID MOBIL CENTERS, INC. LANDS: 


	
  
 
	
 NORTH 35°
 15’ 51” EAST 150.02 FEET AND;
 
	
 NORTH 54°
 41’ 49” WEST 174.98 FEET TO A POINT; 
 


THENCE STILL ALONG THE SAID LANDS OF MOBIL CENTERS, INC. WESTERLY ON A
TANGENT CURVE TO THE LEFT, THE CENTRAL ANGLE OF WHICH IS 90° 02’ 20”, 





THE RADIUS OF WHICH 25.00 FEET FOR 39.29 FEET TO ANOTHER POINT ON THE
SAID SOUTHEASTERLY LINE OF U.S. ROUTE 6; 


THENCE NORTHEASTERLY ONCE AGAIN ALONG THE SAID SOUTHEASTERLY LINE OF
U.S. ROUTE 6; 


	
  
 
	
 NORTH 35°
 15’ 51” EAST 103.05 FEET AND; 
 
	
 NORTH 34°
 16’ 11” EAST 16.52 FEET TO A POINT AT THE LINE OF LANDS NOW OR FORMERLY OF
 W.W. GEIS, JR.; 
 


THENCE ALONG AND AROUND THE SAID W.W GEIS, JR. LANDS THE FOLLOWING,
FIRST TURNING ABOUT AND SOUTHERLY ON A TANGENT CURVE TO THE LEFT, THE CENTRAL
ANGLE OF WHICH IS 88° 58’ 00”, THE RADIUS OF WHICH IS 25.00 FEET FOR 38.82 FEET
AND THEN FOLLOWING COURSES: 


	
  
 
	
 SOUTH 54°
 41’ 49” EAST 187.41 FEET;
 
	
 SOUTH 87°
 58’ 31” EAST 50.19 FEET;
 
	
 NORTH 34°
 14’ 31” EAST 293.26 FEET AND; 
 
	
 NORTH 55°
 45’ 29” WEST 248.82 FEET TO STILL ANOTHER POINT ON THE SOUTHEASTERLY LINE OF
 U.S. ROUTE 6; 
 


THENCE NORTHEASTERLY ONCE AGAIN ALONG THE SAID SOUTHEASTERLY LINE OF
U.S. ROUTE 6; 


NORTH 38° 26’ 11” EAST 91.89 FEET AND; 


NORTH 36° 40’ 11” EAST 175.50 FEET TO A POINT AT THE LINE LAND NOW OR
FORMERLY OF HOME DEPOT U.S.A., INC. LANDS, THE FOLLOWING FIRST 


SOUTH 53° 24’ 23’ EAST 28.04 FEET 


THEN ON A TANGENT CURVE TO THE RIGHT, THE CENTRAL ANGLE OF WHICH IS 44°
59’ 45”, THE RADIUS OF WHICH IS 100.00 FEET FOR 78.53 FEET, 


THEN SOUTH 08° 24’ 38” EAST 170.39 FEET 


THEN ON A TANGENT CURVE TO THE RIGHT, THE CENTRAL ANGLE OF WHICH IS 42°
53’ 52”, THE RADIUS OF WHICH IS 330.00 FEET FOR 245.35 FEET, AND THEN THE
FOLLOWING COURSES: 


	
  
 
	
 SOUTH 34°
 11’ 14” WEST 7.14 FEET;
 
	
 SOUTH 42°
 10’ 35” EAST 571.35 FEET;
 
	
 NORTH 81°
 40’ 00” EAST 752.50 FEET;
 
	
 NORTH
 42° 10’ 35” WEST 546.00 FEET; 
 
	
 SOUTH
 47° 49’ 25” WEST 12.00 FEET;
 
	
 NORTH 42°
 10’ 35” WEST 334.49 FEET;
 
	
 NORTH 47°
 49’ 25” EAST 64.36 FEET; 
 


2





NORTH 42° 10’ 35” WEST 551.64 FEET TO A POINT ON THE SOUTHEASTERLY LINE
OF U.S. ROUTE 6; 


THENCE NORTHEASTERLY ALONG THE SOUTHEASTERLY LINE OF U.S. ROUTE 6 THE
FOLLOWING COURSES: 


	
  
 
	
 NORTH 43°
 07’ 31” EAST 240.77 FEET;
 
	
 NORTH 46°
 43’ 08” EAST 200.86 FEET;
 
	
 NORTH 47°
 51’ 46” EAST 169.07 FEET;
 
	
 NORTH 54°
 16’ 42” EAST 77.64 FEET;
 
	
 NORTH 43°
 47’ 18” EAST 103.43 FEET;
 
	
 NORTH 06°
 57’ 25” EAST 7.49 FEET;
 
	
 NORTH 44°
 52’ 56” EAST 141.98 FEET; 
 
	
 NORTH 56°
 38’ 06” EAST 194.10 FEET;
 
	
 NORTH 47° 40’ 06” EAST 31.98 FEET TO A POINT AT THE LINE DIVIDING
 PARCEL NO. 2A, ON THE SOUTHWEST FROM PARCEL NO. 1, ON THE NORTHEAST, BOTH AS
 SHOWN ON SAID FILED MAP NO. 21741, WHICH POINT OCCUPIES COORDINATE POSITION
 
	
  
 
	
 N 478,107.32
 (Y) 
 
	
 E 626,930.25
 (X) OF THE NEW YORK STATE COORDINATE SYSTEM, EAST ZONE; 
 


THENCE STILL ALONG THE SOUTHEASTERLY LINE OF U.S. ROUTE 6 THE FOLLOWING
COURSES: 


	
  
 
	
 NORTH 47°
 40’ 06” EAST 15.49 FEET;
 
	
 NORTH 57°
 07’ 47” EAST 41.34 FEET;
 
	
 NORTH 46°
 37’ 24” EAST 65.92 FEET;
 
	
 NORTH 60°
 47’ 16” EAST 135.27 FEET;
 
	
 NORTH 58°
 29’ 38” EAST 200.48 FEET;
 
	
 NORTH 76°
 26’ 07” EAST 65.57 FEET;
 
	
 NORTH 53°
 06’ 18” EAST 114.53 FEET;
 
	
 NORTH 59°
 20’ 46” EAST 157.01 FEET;
 
	
 NORTH 67°
 37’ 05” EAST 102.26 FEET;
 
	
 NORTH 39°
 31’ 22” EAST 47.05 FEET;
 
	
 NORTH 62°
 09’ 00” EAST 123.28 FEET;
 
	
 NORTH 59°
 26’ 00” EAST 57.40 FEET;
 
	
 NORTH 58°
 13’ 00” EAST 81.60 FEET;
 
	
 NORTH 61°
 59’ 00” EAST 41.60 FEET;
 
	
 NORTH 38°
 58’ 00” EAST 17.42 FEET;
 
	
 NORTH 61°
 26’ 39” EAST 147.75 FEET;
 
	
 NORTH 57°
 24’ 50” EAST 100.18 FEET; 
 
	
 NORTH 63° 24’ 40” EAST 64.74 FEET TO A POINT AT THE LINE OF LANDS NOW
 OR FORMERLY OF BERKO, WHICH POINT OCCUPIES COORDINATE POSITION 
 
	
  
 
	
 N 478.912.07
 (Y) 
 
	
 E 628,275.78
 (X) OF THE NEW YORK STATE COORDINATE SYSTEM, EAST ZONE; 
 


3





THENCE SOUTHERLY ALONG THE SAID BERKO LANDS AND CONTINUING ALONG LANDS
NOW OR FORMERLY OF FELDMAN, NOW OR FORMERLY OF BERTINO, AND LANDS NOW OR
FORMERLY OF MOHEGAN REALTY CO., THE FOLLOWING FIVE (5) COURSES AND DISTANCES: 


	
  
 
	
 SOUTH 8° 21’
 49” EAST 184.14 FEET;
 
	
 SOUTH 7° 23’
 59” EAST 204.45 FEET;
 
	
 SOUTH 8° 27’
 49” EAST 457.05 FEET;
 
	
 SOUTH 7° 57’
 49” EAST 226.72 FEET; 
 
	
 SOUTH 8° 03’
 49” EAST 841.87 FEET TO LANDS NOW OR FORMERLY OF BOGIN, WHICH POINT OCCUPIES
 COORDINATE POSITION 
 
	
  
 
	
 N 477,016.99
 (Y) 
 
	
 E 628,545.67
 (X) OF THE NEW YORK STATE COORDINATE SYSTEM, EAST ZONE; 
 


THENCE ALONG SAID LANDS ON A COURSE OF SOUTH 84° 45’ 51” WEST FOR A
DISTANCE OF 565.62 FEET TO A POINT THAT IS A CORNER THEREOF, WHICH POINT IS AT
THE SOUTHEASTERLY END OF THE LINE DIVIDING PARCEL NO. 2A, ON THE SOUTHWEST FROM
PARCEL NO 1, ON THE NORTHEAST, BOTH AS SHOWN ON SAID FILED MAP 21741, WHICH
POINT OCCUPIES COORDINATE POSITION 


	
  
 
	
 N 476,965.38
 (Y)
 
	
 E 627,982.41
 (X) OF THE NEW YORK STATE COORDINATE SYSTEM, EAST ZONE; 
 


THENCE CONTINUING ALONG LANDS NOW OR FORMERLY OF BOGIN AND DEANIN ON A
COURSE OF SOUTH 8° 44’ 49” EAST FOR A DISTANCE OF 775.84 FEET TO LANDS NOW OR
FORMERLY OF MCKEEL; 


THENCE ALONG THE SAID MCKEEL LANDS AND IN PART ALONG THE ORIGINAL
CENTER LINE OF A BROOK AS THE SAID CENTER LINE APPEARS ON THAT CERTAIN MAP
ENTITLED “SURVEY... MIDWESTCHESTER INDUSTRIAL PARK INC...,” WHICH WAS FILED IN
THE WESTCHESTER COUNTY CLERK’S OFFICE ON JANUARY 24, 1969 ON MAP NO. 16581 THE
FOLLOWING COURSES AND DISTANCES: 


	
  
 
	
 SOUTH 83°
 29’ 51” WEST 1204.04 FEET;
 
	
 SOUTH 64°
 31’ 01” WEST 35.43 FEET;
 
	
 SOUTH 87°
 29’ 41” WEST 100.66 FEET;
 
	
 SOUTH 79°
 30’ 01” WEST 100.04 FEET;
 
	
 SOUTH 80°
 21’ 21” WEST 99.99 FEET;
 
	
 SOUTH 82°
 37’ 11” WEST 219.69 FEET;
 
	
 SOUTH 81°
 10’ 01” WEST 102.96 FEET;
 
	
 SOUTH 74°
 14’ 51” WEST 99.92 FEET;
 
	
 SOUTH 75°
 42’ 31” WEST 81.58 FEET;
 
	
 SOUTH 73°
 18’ 21” WEST 101.89 FEET;
 
	
 SOUTH 87°
 12’ 21” WEST 100.12 FEET;
 
	
 SOUTH 89°
 38’ 51” WEST 100.44 FEET;
 
	
 SOUTH 84°
 23’ 51” WEST 107.95 FEET; 
 


4









	
  
 
	
 SOUTH 81°
 42’ 51” WEST 119.29 FEET;
 
	
 SOUTH 58°
 38’ 31” WEST 47.83 FEET;
 
	
 SOUTH 48°
 18’ 59” WEST 109.79 FEET AND; 
 
	
 NORTH 68° 22’ 19” WEST 32.81 FEET TO A POINT AT THE LINE OF LANDS NOW
 OR FORMERLY OF SHELBY-COLERIDGE HOLDING CORP; 
 


THENCE ALONG THE SAID SHELBY-COLERIDGE HOLDING CORP. LANDS AND ALONG
THE NORTHEASTERLY LINES OF LOT NO. 19 AND LOT 21 AS SHOWN ON THE AFOREMENTIONED
“MAP NO. 1 GULL MANOR...’’ FILED MAP NO. 8930, THE FOLLOWING COURSES: 


	
  
 
	
 NORTH 68°
 14’ 09” WEST 17.28 FEET;
 
	
 SOUTH 89°
 44’ 51” WEST 61.00 FEET;
 
	
 NORTH 46°
 00’ 09” WEST 54.45 FEET;
 
	
 NORTH 61°
 11’ 09” WEST 72.08 FEET; 
 
	
 NORTH 55°
 43’ 09” WEST 93.25 FEET TO THE AFOREMENTIONED SOUTHEASTERLY LINE OF U.S.
 ROUTE 6 AND THE POINT OR PLACE OF BEGINNING. 
 


TOGETHER WITH THE BENEFITS AND SUBJECT TO THE BURDENS OF THE GRANT OF
SANITARY SEWER EASEMENT MADE BY AND BETWEEN HARDEE’S AND MID-WESTCHESTER
INDUSTRIAL PARK, INC. RECORDED IN LIBER 7137 PAGE 92. 


TOGETHER WITH THE BENEFITS OF THE EASEMENT RECORDED IN THE WESTCHESTER
COUNTY CLERK’S LIBER 7099 OF DEEDS AT PAGE 228 AND REPEATED IN LIBER 7143 OF
DEEDS AT PAGE 449 AND LIBER 7235 OF DEEDS AT PAGE 88. 


TOGETHER WITH THE BENEFITS OF THE DECLARATION AND GRANT OF RECIPROCAL
EASEMENTS MADE BY CORTLANDT TOWN CENTER LIMITED PARTNERSHIP AND RECORDED IN THE
WESTCHESTER COUNTY CLERK’S LIBER 11673 OF DEEDS AT PAGE 78. 


TOGETHER WITH THE BENEFITS OF THE RECIPROCAL EASEMENT AND OPERATION
AGREEMENT MADE BY BETWEEN CORTLANDT TOWN CENTER LIMITED PARTNERSHIP AND HOME
DEPOT U.S.A. INC. AND RECORDED IN THE WESTCHESTER COUNTY CLERK’S LIBER 11618 OF
DEEDS AT PAGE 1. 


5





EXHIBIT B


Permitted Encumbrances


Those exceptions set forth in Schedule B of that certain title
insurance policy issued by First American Title Insurance Company of New York
under their title no. 3008-272268 insuring the lien of this Mortgage. 





EXHIBIT C


Partial Release


NONE










(Mortgage Consolidation and Modification Agreement)


 


 


 


SECTION 255 AFFIDAVIT


 


 


Robert Masters, being duly
sworn, deposes and says that:

 

                                                     
1.           
He is a Senior Vice President of Acadia Cortlandt LLC,
a Delaware limited liability company ("Mortgagor"), which
is the owner of certain premises encumbered by the mortgages (collectively, the "Mortgage")
described in Exhibit A
attached hereto and made a part hereof, and is familiar with the facts set forth herein.

 

                                                     
2.           
BANK OF AMERICA, N.A., as Administrative Agent ("Mortgagee")
is now the lawful owner and holder of the Mortgage and the obligations secured
thereby.

 

                                                     
3.           
The mortgage recording tax recited in Exhibit A with respect to the Mortgage was duly paid.

 

                                                     
4.           
The maximum aggregate principal amount which is or under any contingency may be secured by the Mortgage is $50,000,000.00.

 

                                                     
5.           
There have been no reloans or readvances under the Mortgage.

 

                                                     
6.           
In order to modify the liens, terms and conditions of the
Mortgage, Mortgagor has executed and delivered to Mortgagee a certain mortgage
consolidation and modification agreement (the "Agreement") of even
date herewith.

 

                                                     
7.           
The Agreement is given solely for the purpose of consolidating and modifying the liens, terms and conditions of the Mortgage
and secures the same principal indebtedness which is or under any contingency may be secured by the Mortgage, and the Agreement
does not create or secure any new or further indebtedness or obligation other than the principal indebtedness or obligations secured
by or which under any contingency may be secured by the Mortgage.

 

 


 


[Remainder of page intentionally left blank]

 

 

 

2

 










WHEREFORE, deponent respectfully
requests that the Agreement be declared exempt from taxation pursuant to the provisions of Section 255 of Article XI of the Tax
Law of the State of New York.


 


 


/s/
Robert Masters


ROBERT MASTERS


 


Sworn to before me this


22nd day of October, 2010.


 


 


/s/ Debra Leibler Jones______


Notary Public


 


 


My commission expires:


 


No. 01LE6005994


Qualified in Dutchess County


Commission Expires 04/20/2014

 

 










EXHIBIT A


 


Mortgage(s)


 


 


     
1.           
Mortgage, Assignment of Leases and Rents and Security Agreement dated
as of July 29, 2009 from Acadia Cortlandt LLC
to Bank of America, N.A., as Administrative Agent, in the amount of $45,000,000, which was recorded on August 28, 2009 in
the office of the Westchester County Clerk, New York (the "Office")
as Control Number 492240207 and upon which a mortgage recording tax of $585,000
was paid (current outstanding principal $44,558,467.91).


     
2.           
Mortgage, Assignment of Leases and Rents and Security Agreement dated
as of July 29, 2009 from Acadia Cortlandt LLC
to Bank of America, N.A., as Administrative Agent, in the amount of $2,000,000, which was recorded in the Office on August 28,
2009 as Control Number 492240215 and upon which a mortgage recording tax of $26,000
was paid (current outstanding principal $1,994,569.13).


     
3.           
Mortgage and Security Agreement dated as of the date hereof from Acadia Cortlandt LLC to Bank of America, N.A., as Administrative
Agent, in the amount of $3,446,962.96 to be recorded in the Office immediately prior hereto and upon which a mortgage recording
tax in the amount of $44,811.00 will be duly paid.


 

 











	
  
 
	

 
 




ACADIA CORTLANDT LLC, 

a Delaware limited liability company 

as Mortgagor


TO


BANK OF AMERICA, N.A., 

as Administrative Agent 

as Mortgagee


	
  
 	
  
 	
  
 
	
  
 	

 
 	
  
 
	
  
 	
  
 	
  
 
	
 MORTGAGE AND SECURITY AGREEMENT
 
	
  
 	
  
 	
  
 
	
  
 	

 
 	
  
 






	
  
 	
  
 	
  
 
	
  
 	
 Dated: As of
 October 26, 2010
 
	
  
 
	
  
 	
 Section:
 	
 24.10
 
	
  
 	
 Block:
 	
 1
 
	
  
 	
 Lots:
 	
 1, 1.2, 2
 and 3
 
	
  
 	
 County:
 	
 Westchester
 
	
  
 	
 Address:
 	
 Cortlandt
 Towne Center Shopping Center,
 
	
  
 	
  
 	
 Town of
 Cortlandt
 
	
  
 






	

 
 


RECORD AND RETURN TO:


Schiff Hardin LLP 

900 Third Avenue, 23rd Floor 

New York, New York 10022 

Attention: Paul G. Mackey, Esq.





MORTGAGE AND SECURITY AGREEMENT


          THIS
MORTGAGE AND SECURITY AGREEMENT (this “Mortgage”) made the 26th day of October,
2010, by ACADIA CORTLANDT LLC, a Delaware limited liability company, having its
office and principal place of business at c/o Acadia Realty Trust, 1311
Mamaroneck Avenue, Suite 260, White Plains, New York 10605 (hereinafter
referred to as “Mortgagor” or “Borrower”), to BANK OF AMERICA, N.A., as
Administrative Agent, having an address at One Bryant Park, 35th Floor, New York,
New York 10036 (hereinafter referred to as “Mortgagee”); 


WITNESSETH:


          To secure
the payment of an indebtedness in the principal sum of Three Million Four
Hundred Forty-Six Thousand Nine Hundred Sixty-Two and 96/100 Dollars
($3,446,962.96), in lawful money of the United States of America, to be paid
with interest (said indebtedness, interest and all other sums which may or
shall become due hereunder being hereinafter collectively referred to as the
“Debt”) according to a certain note dated the date hereof given by Mortgagor to
Mortgagee (hereinafter referred to as the “Note”), Mortgagor has mortgaged,
given, granted, bargained, sold, aliened, enfeoffed, conveyed, confirmed and
assigned, and by these presents does mortgage, give, grant, bargain, sell,
alien, enfeoff, convey, confirm and assign unto Mortgagee all right, title and
interest of Mortgagor now owned, or hereafter acquired, in and to the property
described in Schedule A attached hereto (hereinafter referred to as the
“Premises”); 


          TOGETHER
WITH all right, title, interest and estate of Mortgagor now owned, or hereafter
acquired, in and to the following property, rights, interests and estates (the
Premises together with such property, rights, interests and estates being hereinafter
collectively referred to as the “Mortgaged Property”): 


	
  
 	
  
 
	
  
 	
           (a) (i)
 all buildings, structures, fixtures, additions, enlargements, extensions,
 modifications, repairs, replacements and improvements now or hereafter
 located on the Premises (hereinafter referred to as the “Improvements”); and
 (ii) to the extent permitted by law, the name or names, if any, as may now or
 hereafter be used for each Improvement, and the goodwill associated
 therewith. 
 
	
  
 	
  
 
	
  
 	
           (b) all
 easements, rights-of-way, strips and gores of land, streets, ways, alleys,
 passages, sewer rights, water, water courses, water rights and powers, air
 rights and development rights, liberties, tenements, hereditaments and
 appurtenances of any nature whatsoever, in any way belonging, relating or
 pertaining to the Premises or the Improvements and the reversion and
 reversions, remainder and remainders, and all land lying in the bed of any
 street, road or avenue, opened or proposed, in front of or adjoining the
 Premises to the center line thereof and all the estates, rights, titles,
 interests, dower and rights of dower, curtesy and rights of curtesy,
 property, possession, claim and demand whatsoever, both in law and in equity,
 of Mortgagor of, in and to the Premises or the Improvements and every part
 and parcel thereof, with the appurtenances thereto; 
 













	
  
 	
  
 
	
  
 	
           (c) all
 machinery, equipment, fixtures (including but not limited to all heating, air
 conditioning, plumbing, lighting, communications and elevator fixtures) and
 other property of every kind and nature whatsoever owned by Mortgagor, or in
 which Mortgagor has or shall have an interest, now or hereafter located upon
 the land or related to the Improvements, or appurtenant thereto, or usable in
 connection with the present or future operation and occupancy of the Premises
 or the Improvements and all building equipment, materials and supplies of any
 nature whatsoever owned by Mortgagor, or in which Mortgagor has or shall have
 an interest, now or hereafter located upon the Premises or the Improvements,
 or appurtenant thereto, or usable in connection with the present or future
 operation and occupancy of the Premises or the Improvements (hereinafter
 collectively called the “Equipment”), and the right, title and interest of
 Mortgagor in and to any of the Equipment which may be subject to any security
 agreements (as defined in the Uniform Commercial Code), superior in lien to
 the lien of the Mortgage; 
 
	
  
 	
  
 
	
  
 	
           (d) all
 awards or payments, including interest thereon, which may heretofore and
 hereafter be made with respect to the Premises, the Improvements or the
 Equipment, whether from the exercise of the right of eminent domain
 (including but not limited to any transfer made in lieu of or in anticipation
 of the exercise of said right), or for a change of grade, or for any other
 injury to or decrease in the value of the Premises, the Improvements or the
 Equipment; 
 
	
  
 	
  
 
	
  
 	
           (e) all
 leases and other agreements affecting the use, enjoyment or occupancy of the
 Premises, the Improvements or the Equipment now or hereafter entered into
 (the “Leases”) and all oil and gas or other mineral royalties, bonuses and
 rents, issues and profits from the Premises, the Improvements or the
 Equipment (the “Rents”) and all proceeds from the sale or other disposition
 of the Leases and the right to receive and apply the Rents to the payment of
 the Debt; 
 
	
  
 	
  
 
	
  
 	
           (f) all
 proceeds of and any unearned premiums on any insurance policies covering the
 Premises, the Improvements or the Equipment, including, without limitation,
 the right to receive and apply the proceeds of any insurance, judgments, or
 settlements made in lieu thereof, for damage to the Premises, the
 Improvements or the Equipment; 
 
	
  
 	
  
 
	
  
 	
           (g) the
 right, in the name and on behalf of Mortgagor, to appear in and defend any
 action or proceeding brought with respect to the Premises, the Improvements
 or the Equipment and to commence any action or proceeding to protect the
 interest of Mortgagee in the Premises, the Improvements or the Equipment; and
 
 
	
  
 	
  
 
	
  
 	
           (h) all
 right, title and interest of every nature of the Mortgagor in all monies
 deposited or to be deposited in any funds or account maintained or deposited
 with Mortgagee, or its assigns, in connection herewith. 
 


          TO HAVE AND
TO HOLD the above granted and described Mortgaged Property unto and to the
proper use and benefit of Mortgagee, and the successors and assigns of
Mortgagee, forever. 


2





          PROVIDED,
ALWAYS, and these presents are upon this express condition, if Mortgagor shall
well and truly pay to Mortgagee the Debt at the time and in the manner provided
in the Note and this Mortgage, then these presents and the estate hereby
granted shall cease, determine and be void. 


          AND
Mortgagor covenants with and represents and warrants to Mortgagee as follows: 


          1. Payment
of Debt. Mortgagor will pay the Debt at the time and in the manner provided
for its payment in the Note. 


          2. Warranty
of Title. Mortgagor warrants that Mortgagor has good, marketable and
insurable title to the Mortgaged Property and has the full power, authority and
right to execute, deliver and perform its obligations under this Mortgage and
to deed, encumber, mortgage, give, grant, bargain, sell, alienate, enfeoff,
convey, confirm, pledge, assign and hypothecate the same and that Mortgagor
possesses a fee estate in the Premises and the Improvements and that it owns
the Mortgaged Property free and clear of all liens, encumbrances and charges
whatsoever except those which are approved by Mortgagee given by Mortgagor to
Mortgagee covering the Mortgaged Property (the “Permitted Exceptions”) and that
this Mortgage is and will remain a valid and enforceable first lien on and
security interest in the Mortgaged Property, subject only to said exceptions.
Mortgagor shall forever warrant, defend and preserve such title and the
validity and priority of the lien of this Mortgage and shall forever warrant
and defend the same to Mortgagee against the claims of all persons whomsoever. 


          3. Sale
of Mortgaged Property. If this Mortgage is foreclosed, the Mortgaged
Property, or any interest therein, may, at the discretion of Mortgagee, be sold
in one or more parcels or in several interests or portions and in any order or
manner. 


          4. No
Credits on Account of the Debt. Mortgagor will not claim or demand or be
entitled to any credit or credits on account of the Debt for any part of the
taxes assessed against the Mortgaged Property or any part thereof and no
deduction shall otherwise be made or claimed from the taxable value of the
Mortgaged Property, or any part thereof, by reason of this Mortgage or the
Debt. 


          5. Documentary
Stamps. If at any time the United States of America, any state thereof or
any governmental subdivision of any such state shall require revenue or other
stamps to be affixed to the Note or this Mortgage, Mortgagor will pay for the
same, with interest and penalties thereon, if any. 


          6. Appointment
of Receiver. Mortgagee, in any action to foreclose this Mortgage or upon
the actual or threatened waste to any part of the Mortgaged Property or upon
the occurrence of any default hereunder, shall be at liberty, without notice,
to apply for the appointment of a receiver of the Rents, and shall be entitled
to the appointment of such receiver as a matter of right, without regard to the
value of the Mortgaged Property as security for the Debt, or the solvency or
insolvency of any person then liable for the payment of the Debt. 


          7. Liability.
If Mortgagor consists of more than one person, the obligations and liabilities
of each such person hereunder shall be joint and several. 


3





          8. Construction.
The terms of this Mortgage shall be governed by and construed in accordance
with the laws of the State of New York. 


          9. Security
Agreement. This Mortgage constitutes both a real property mortgage and a
“security agreement” within the meaning of the Uniform Commercial Code, and the
Mortgaged Property includes both real and personal property and all other
rights and interest, whether tangible or intangible in nature, of Mortgagor in
the Mortgaged Property. Mortgagor, by executing and delivering this Mortgage,
has granted to Mortgagee, as security for the Debt, a security interest in the
Equipment. If Mortgagor shall default under the Note or this Mortgage,
Mortgagee, in addition to any other rights and remedies which it may have,
shall have and may exercise, immediately and without demand, any and all rights
and remedies granted to a secured party upon default under the Uniform
Commercial Code. 


          10. Headings,
etc. The headings and captions of various paragraphs of this Mortgage are
for convenience of reference only and are not to be construed as defining or
limiting, in any way, the scope or intent of the provisions hereof. 


          11. Filing
of Mortgage, etc. Mortgagor forthwith upon the execution and delivery of
this Mortgage and thereafter, from time to time, will cause this Mortgage, and
any security instrument creating a lien or evidencing the lien hereof upon the
Mortgaged Property, to be filed, registered or recorded in such manner and in
such places as may be required by any present or future law in order to publish
notice of and fully to protect the lien hereof upon, and the interest of
Mortgagee in, the Mortgaged Property. Mortgagor will pay all filing,
registration or recording fees, and all expenses incident to the preparation,
execution and acknowledgment of this Mortgage and any security instrument with
respect to the Mortgaged Property, and all Federal, state, county and municipal
taxes, duties, imposts, assessments and charges (excluding Mortgagee’s income
taxes) arising out of or in connection with the execution and delivery of this
Mortgage or any security instrument with respect to the Mortgaged Property.
Mortgagor shall hold harmless and indemnify Mortgagee, its successors and
assigns, against any liability incurred by reason of the imposition of any tax
(excluding Mortgagee’s income taxes) on the making and recording of this
Mortgage. 


          12. Marshalling.
Mortgagor waives and releases any right to have the Mortgaged Property
marshaled. 


          13. Authority.
Mortgagor (and the undersigned representative of Mortgagor) has full power,
authority and legal right to execute this Mortgage and to mortgage, give,
grant, bargain, sell, alien, enfeoff, convey, confirm and assign the Mortgaged
Property pursuant to the terms hereof and to keep and observe all of the terms
of this Mortgage on Mortgagor’s part to be performed. 


          14. Inapplicable
Provisions. If any term, covenant or condition of the Mortgage shall be
held to be invalid, illegal or unenforceable in any respect, this Mortgage
shall be construed without such provision. 


4





          15. No
Oral Change. This Mortgage may only be modified or amended by an agreement
in writing signed by Mortgagor and Mortgagee, and may only be released,
discharged or satisfied of record by an agreement in writing signed by
Mortgagee. 


          16. Trust
Fund. Pursuant to Section 13 of the Lien Law of New York, Mortgagor shall
receive the advances secured hereby and shall hold the right to receive such
advances as a trust fund to be applied first for the purpose of paying the cost
of any improvement and shall apply such advances first to the payment of the
cost of any such improvement on the Mortgaged Property before using any part of
the total of the same for any other purpose. 


          17. Commercial
Property. This Agreement does not cover real property principally improved
or to be improved by one or more structures containing in the aggregate not
more than six (6) residential dwelling units. 


[Remainder of page intentionally left blank]


5





          IN WITNESS
WHEREOF, Mortgagor has duly executed this Mortgage the day and year first above
written. 


	
  
 	
  
 	
  
 
	
  
 	
 MORTGAGOR:
 
	
  
 	
  
 	
  
 
	
  
 	
 ACADIA
 CORTLANDT LLC, a Delaware limited liability
 company
 
	
  
 	
  
 	
  
 
	
  
 	
  
 	
  
 
	
  
 	
 By 
 	
 /s/ Robert
 Masters
 
	
  
 	
  
 	

 
 
	
  
 	
  
 	
 Robert
 Masters
 
	
  
 	
  
 	
 Senior Vice
 President
 












	
 STATE OF NEW
 YORK
 	
 )
 
	
 :
 	
      ss.:
 
	
 COUNTY OF WESTCHESTER
 	
 )
 


          On the 22nd
day of October in the year 2010, before me, the undersigned, a notary public in
and for said state, personally appeared Robert Masters, personally known to me
or proved to me on the basis of satisfactory evidence to be the individual(s)
whose name(s) is (are) subscribed to the within instrument and acknowledged to
me that he/she/they executed the same in his/her/their capacity(ies), and that
by his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument. 


	
  
 	
  
 	
  
 	
  
 
	
  
 	
  
 	
 /s/ Debra
 Leibler-Jones
 	
  
 
	
  
 	
  
 	

 
 	
  
 
	
  
 	
  
 	
 Notary
 Public
 	
  
 
	
  
 	
  
 	
  
 	
  
 
	
 My
 Commission Expires:
 	
  
 	
 Debra
 Leibler-Jones
 	
  
 
	
  
 	
  
 	
 No.
 01LE6005994
 	
  
 
	
  
 	
  
 	
 Qualified in
 Dutchess County
 	
  
 
	

 
 	
  
 	
 Commission
 Expires: April 20, 2014
 	
  
 









SCHEDULE A


Property Description


ALL THAT CERTAIN PARCEL OF LAND SITUATE IN THE TOWN OF CORTLANDT,
COUNTY OF WESTCHESTER AND STATE OF NEW YORK THAT IS A PORTION OF THOSE LANDS
DESIGNATED PARCEL 1, PARCEL 2A AND PARCEL 2B ON THAT CERTAIN “RESUBDIVISION
PLAT OF FILED MAP NO. 17837 SECTION 1 MID-WESTCHESTER INDUSTRIAL PARK, INC.,”
WHICH WAS FILED IN THE WESTCHESTER COUNTY CLERK’S OFFICE ON OCTOBER 15, 1984 AS
MAP NO. 21741 THAT IS BOUNDED AND DESCRIBED AS FOLLOWS: 


BEGINNING AT A POINT ON THE SOUTHEASTERLY LINE OF U.S. ROUTE 6 (AKA 5
MILE TURNPIKE AND/OR EAST MAIN STREET AND/OR STATE HIGHWAY 1309) WHERE IT IS
MET BY THE LINE DIVIDING THE LANDS HEREIN DESCRIBED ON THE NORTHEAST FROM LANDS
DESIGNATED LOT NO. 21 ON THAT CERTAIN “MAP NO. 1 GULL MANOR..,” WHICH WAS FILED
IN THE WESTCHESTER COUNTY CLERK’S OFFICE ON MARCH 25, 1954 AS MAP NO. 8930,
WHICH POINT OCCUPIES COORDINATE POSITION 


N 476,045.23
(Y) 

E 625,146.49 (X) OF THE NEW YORK STATE COORDINATE SYSTEM, EAST ZONE; 


THENCE FROM THE SAID POINT OF BEGINNING NORTHEASTERLY ALONG THE
SOUTHEASTERLY LINE OF U.S. ROUTE 6 NORTH 31o 31’ 51” EAST 202.41 FEET AND TO A
POINT AT THE SOUTHWESTERLY LINE OF LOT NO. 4 SHOWN ON THAT CERTAIN MAP ENTITLED
“SECTION NO. 1 MID-WESTCHESTER INDUSTRIAL PARK” WHICH WAS FILED IN THE
WESTCHESTER COUNTY CLERK’S OFFICE ON OCTOBER 16, 1972 AS MAP NO. 17837; 


THENCE ALONG THE SOUTHWESTERLY, SOUTHEASTERLY AND NORTHEASTERLY LINES
OF LOT NO. 4 SHOWN ON FILED MAP NO. 17837 THE FOLLOWING COURSES: 


SOUTH 54o 41’
49” EAST 400.00 FEET; 

NORTH 35o 15’ 51” EAST 200.00 FEET; 

NORTH 54o 41’ 49” WEST 201.75 FEET TO A POINT AT THE LINE OF LANDS NOW OR
FORMERLY OF MOBIL CENTERS, INC; 


THENCE ALONG THE SAID MOBIL CENTERS, INC. LANDS:

NORTH 35o 15’ 51” EAST
150.02 FEET AND;
NORTH 54o 41’ 49” WEST 174.98 FEET TO A POINT; 


THENCE STILL ALONG THE SAID LANDS OF MOBIL CENTERS, INC. WESTERLY ON A
TANGENT CURVE TO THE LEFT, THE CENTRAL ANGLE OF WHICH IS 90o 02’ 20”,





THE RADIUS OF WHICH 25.00 FEET FOR 39.29 FEET TO ANOTHER POINT ON THE
SAID SOUTHEASTERLY LINE OF U.S. ROUTE 6; 


THENCE
NORTHEASTERLY ONCE AGAIN ALONG THE SAID SOUTHEASTERLY LINE OF U.S. ROUTE 6; 


NORTH 35o 15’
51” EAST 103.05 FEET AND; 

NORTH 34o 16’ 11” EAST 16.52 FEET TO A POINT AT THE LINE OF LANDS NOW OR
FORMERLY OF W.W. GEIS, JR.; 


THENCE ALONG AND AROUND THE SAID W.W GEIS, JR. LANDS THE FOLLOWING,
FIRST TURNING ABOUT AND SOUTHERLY ON A TANGENT CURVE TO THE LEFT, THE CENTRAL
ANGLE OF WHICH IS 88o 58’ 00”, THE RADIUS OF WHICH IS 25.00 FEET FOR 38.82 FEET
AND THEN FOLLOWING COURSES: 


SOUTH 54o 41’
49” EAST 187.41 FEET; 

SOUTH 87o 58’ 31” EAST 50.19 FEET; 

NORTH 34o 14’ 31” EAST 293.26 FEET AND; 

NORTH 55o 45’ 29” WEST 248.82 FEET TO STILL ANOTHER POINT ON THE SOUTHEASTERLY
LINE OF U.S. ROUTE 6; 


THENCE NORTHEASTERLY ONCE AGAIN ALONG THE SAID SOUTHEASTERLY LINE OF
U.S. ROUTE 6; 


NORTH 38o 26’ 11” EAST 91.89 FEET AND; 


NORTH 36o 40’ 11” EAST 175.50 FEET TO A POINT AT THE LINE LAND NOW OR
FORMERLY OF HOME DEPOT U.S.A., INC. LANDS, THE FOLLOWING FIRST 


SOUTH 53o 24’
23’ EAST 28.04 FEET 


THEN ON A TANGENT CURVE TO THE RIGHT, THE CENTRAL ANGLE OF WHICH IS 44o
59’ 45”, THE RADIUS OF WHICH IS 100.00 FEET FOR 78.53 FEET, 


THEN SOUTH 08o 24’ 38” EAST 170.39 FEET 


THEN ON A TANGENT CURVE TO THE RIGHT, THE CENTRAL ANGLE OF WHICH IS 42o
53’ 52”, THE RADIUS OF WHICH IS 330.00 FEET FOR 245.35 FEET, AND THEN THE
FOLLOWING COURSES: 


SOUTH 34o 11’
14” WEST 7.14 FEET; 

SOUTH 42o 10’ 35” EAST 571.35 FEET; 

NORTH 81o 40’ 00” EAST 752.50 FEET; 

NORTH 42o 10’ 35” WEST 546.00 FEET; 

SOUTH 47o 49’ 25” WEST 12.00 FEET; 

NORTH 42o 10’ 35” WEST 334.49 FEET; 

NORTH 47o 49’ 25” EAST 64.36 FEET; 


2





NORTH 42o 10’ 35” WEST 551.64 FEET TO A POINT ON THE SOUTHEASTERLY LINE
OF U.S. ROUTE 6; 


THENCE NORTHEASTERLY ALONG THE SOUTHEASTERLY LINE OF U.S. ROUTE 6 THE
FOLLOWING COURSES: 


NORTH 43o 07’
31” EAST 240.77 FEET; 

NORTH 46o 43’ 08” EAST 200.86 FEET; 

NORTH 47o 51’ 46” EAST 169.07 FEET; 

NORTH 54o 16’ 42” EAST 77.64 FEET; 

NORTH 43o 47’ 18” EAST 103.43 FEET; 

NORTH 06o 57’ 25” EAST 7.49 FEET; 

NORTH 44o 52’ 56” EAST 141.98 FEET; 

NORTH 56o 38’ 06” EAST 194.10 FEET; 

NORTH 47o 40’ 06” EAST 31.98 FEET TO A POINT AT THE LINE DIVIDING PARCEL NO.
2A, ON THE SOUTHWEST FROM PARCEL NO. 1, ON THE NORTHEAST, BOTH AS SHOWN ON SAID
FILED MAP NO. 21741, WHICH POINT OCCUPIES COORDINATE POSITION 


N 478,107.32
(Y) 

E 626,930.25 (X) OF THE NEW YORK STATE COORDINATE SYSTEM, EAST ZONE; 


THENCE STILL ALONG THE SOUTHEASTERLY LINE OF U.S. ROUTE 6 THE FOLLOWING
COURSES: 


NORTH 47o 40’
06” EAST 15.49 FEET; 

NORTH 57o 07’ 47” EAST 41.34 FEET; 

NORTH 46o 37’ 24” EAST 65.92 FEET; 

NORTH 60o 47’ 16” EAST 135.27 FEET; 

NORTH 58o 29’ 38” EAST 200.48 FEET; 

NORTH 76o 26’ 07” EAST 65.57 FEET; 

NORTH 53o 06’ 18” EAST 114.53 FEET; 

NORTH 59o 20’ 46” EAST 157.01 FEET; 

NORTH 67o 37’ 05” EAST 102.26 FEET; 

NORTH 39o 31’ 22” EAST 47.05 FEET; 

NORTH 62o 09’ 00” EAST 123.28 FEET; 

NORTH 59o 26’ 00” EAST 57.40 FEET; 

NORTH 58o 13’ 00” EAST 81.60 FEET; 

NORTH 61o 59’ 00” EAST 41.60 FEET; 

NORTH 38o 58’ 00” EAST 17.42 FEET; 

NORTH 61o 26’ 39” EAST 147.75 FEET; 

NORTH 57o 24’ 50” EAST 100.18 FEET; 

NORTH 63o 24’ 40” EAST 64.74 FEET TO A POINT AT THE LINE OF LANDS NOW OR
FORMERLY OF BERKO, WHICH POINT OCCUPIES COORDINATE POSITION 


N 478.912.07
(Y) 

E 628,275.78 (X) OF THE NEW YORK STATE COORDINATE SYSTEM, EAST ZONE; 


3





THENCE SOUTHERLY ALONG THE SAID BERKO LANDS AND CONTINUING ALONG LANDS
NOW OR FORMERLY OF FELDMAN, NOW OR FORMERLY OF BERTINO, AND LANDS NOW OR
FORMERLY OF MOHEGAN REALTY CO., THE FOLLOWING FIVE (5) COURSES AND DISTANCES: 


SOUTH 8o 21’
49” EAST 184.14 FEET; 

SOUTH 7o 23’ 59” EAST 204.45 FEET; 

SOUTH 8o 27’ 49” EAST 457.05 FEET; 

SOUTH 7o 57’ 49” EAST 226.72 FEET; 

SOUTH 8o 03’ 49” EAST 841.87 FEET TO LANDS NOW OR FORMERLY OF BOGIN, WHICH
POINT OCCUPIES COORDINATE POSITION 


N 477,016.99
(Y) 

E 628,545.67 (X) OF THE NEW YORK STATE COORDINATE SYSTEM, EAST ZONE; 


THENCE ALONG SAID LANDS ON A COURSE OF SOUTH 84o 45’ 51” WEST FOR A
DISTANCE OF 565.62 FEET TO A POINT THAT IS A CORNER THEREOF, WHICH POINT IS AT
THE SOUTHEASTERLY END OF THE LINE DIVIDING PARCEL NO. 2A, ON THE SOUTHWEST FROM
PARCEL NO 1, ON THE NORTHEAST, BOTH AS SHOWN ON SAID FILED MAP 21741, WHICH
POINT OCCUPIES COORDINATE POSITION 


N 476,965.38
(Y) 

E 627,982.41 (X) OF THE NEW YORK STATE COORDINATE SYSTEM, EAST ZONE; 


THENCE CONTINUING ALONG LANDS NOW OR FORMERLY OF BOGIN AND DEANIN ON A
COURSE OF SOUTH 8o 44’ 49” EAST FOR A DISTANCE OF 775.84 FEET TO LANDS NOW OR
FORMERLY OF MCKEEL; 


THENCE ALONG THE SAID MCKEEL LANDS AND IN PART ALONG THE ORIGINAL
CENTER LINE OF A BROOK AS THE SAID CENTER LINE APPEARS ON THAT CERTAIN MAP
ENTITLED “SURVEY... MIDWESTCHESTER INDUSTRIAL PARK INC...,” WHICH WAS FILED IN
THE WESTCHESTER COUNTY CLERK’S OFFICE ON JANUARY 24, 1969 ON MAP NO. 16581 THE
FOLLOWING COURSES AND DISTANCES: 


SOUTH 83o 29’
51” WEST 1204.04 FEET; 

SOUTH 64o 31’ 01” WEST 35.43 FEET; 

SOUTH 87o 29’ 41” WEST 100.66 FEET; 

SOUTH 79o 30’ 01” WEST 100.04 FEET; 

SOUTH 80o 21’ 21” WEST 99.99 FEET; 

SOUTH 82o 37’ 11” WEST 219.69 FEET; 

SOUTH 81o 10’ 01” WEST 102.96 FEET; 

SOUTH 74o 14’ 51” WEST 99.92 FEET; 

SOUTH 75o 42’ 31” WEST 81.58 FEET; 

SOUTH 73o 18’ 21” WEST 101.89 FEET; 

SOUTH 87o 12’ 21” WEST 100.12 FEET; 

SOUTH 89o 38’ 51” WEST 100.44 FEET; 

SOUTH 84o 23’ 51” WEST 107.95 FEET; 


4





SOUTH 81o 42’
51” WEST 119.29 FEET; 

SOUTH 58o 38’ 31” WEST 47.83 FEET; 

SOUTH 48o 18’ 59” WEST 109.79 FEET AND; 

NORTH 68o 22’ 19” WEST 32.81 FEET TO A POINT AT THE LINE OF LANDS NOW OR
FORMERLY OF SHELBY-COLERIDGE HOLDING CORP; 


THENCE ALONG THE SAID SHELBY-COLERIDGE HOLDING CORP. LANDS AND ALONG
THE NORTHEASTERLY LINES OF LOT NO. 19 AND LOT 21 AS SHOWN ON THE AFOREMENTIONED
“MAP NO. 1 GULL MANOR...’’ FILED MAP NO. 8930, THE FOLLOWING COURSES: 


NORTH 68o 14’
09” WEST 17.28 FEET; 

SOUTH 89o 44’ 51” WEST 61.00 FEET; 

NORTH 46o 00’ 09” WEST 54.45 FEET; 

NORTH 61o 11’ 09” WEST 72.08 FEET; 

NORTH 55o 43’ 09” WEST 93.25 FEET TO THE AFOREMENTIONED SOUTHEASTERLY LINE OF
U.S. ROUTE 6 AND THE POINT OR PLACE OF BEGINNING. 


TOGETHER WITH THE BENEFITS AND SUBJECT TO THE BURDENS OF THE GRANT OF
SANITARY SEWER EASEMENT MADE BY AND BETWEEN HARDEE’S AND MID-WESTCHESTER
INDUSTRIAL PARK, INC. RECORDED IN LIBER 7137 PAGE 92. 


TOGETHER WITH THE BENEFITS OF THE EASEMENT RECORDED IN THE WESTCHESTER
COUNTY CLERK’S LIBER 7099 OF DEEDS AT PAGE 228 AND REPEATED IN LIBER 7143 OF
DEEDS AT PAGE 449 AND LIBER 7235 OF DEEDS AT PAGE 88. 


TOGETHER WITH THE BENEFITS OF THE DECLARATION AND GRANT OF RECIPROCAL
EASEMENTS MADE BY CORTLANDT TOWN CENTER LIMITED PARTNERSHIP AND RECORDED IN THE
WESTCHESTER COUNTY CLERK’S LIBER 11673 OF DEEDS AT PAGE 78. 


TOGETHER WITH THE BENEFITS OF THE RECIPROCAL EASEMENT AND OPERATION
AGREEMENT MADE BY BETWEEN CORTLANDT TOWN CENTER LIMITED PARTNERSHIP AND HOME
DEPOT U.S.A. INC. AND RECORDED IN THE WESTCHESTER COUNTY CLERK’S LIBER 11618 OF
DEEDS AT PAGE 1. 


5










AMENDED AND RESTATED GUARANTY AGREEMENT


                    THIS
AMENDED AND RESTATED GUARANTY AGREEMENT (this “Guaranty”) is made as of the
26th day of October, 2010, by ACADIA STRATEGIC OPPORTUNITY FUND III LLC, a
Delaware limited liability company (“Guarantor”), in favor of BANK OF AMERICA,
N.A., a national banking association (in its individual capacity and not as
administrative agent, “BofA”), as Administrative Agent (in such capacity and
together with its successors and assigns in such capacity, “Administrative
Agent”) for the Lenders (as defined below). 


Preliminary Statements


                    A. BofA and Acadia Cortlandt LLC, a Delaware
limited liability company (“Borrower”), have entered into that certain Loan
Agreement dated as of July 29, 2009, as modified by that certain Loan Agreement
Modification Agreement dated as of August 27, 2009 (collectively, the “Original
Loan Agreement”). 


                    B. In connection with the Original Loan
Agreement, Guarantor executed and delivered a Guaranty Agreement dated as of
July 29, 2009 (the “Original Guaranty”) to Lenders. 


                    C. On the date hereof Borrower, Lenders and
Administrative Agent are entering into, among other documents, that certain
Amended and Restated Loan Agreement (herein called, as it may hereafter be
modified, supplemented, restated, extended, or renewed and in effect from time
to time, the “Loan Agreement”) which amends and restates the Original Loan
Agreement in its entirety and which Loan Agreement sets forth the terms and
conditions of a loan (the “Loan”) by BofA and certain other lenders (BofA and
such other entities as may become lenders in accordance with the terms of the
Loan Agreement, collectively, “Lenders”) to Borrower with respect to land
located in the Town of Yorktown, Westchester County, New York as more
particularly described in the Loan Agreement and identified therein as the Land
and the Improvements thereon. 


                    D. A condition precedent to Lenders’ obligation
to make the Loan to Borrower is Guarantor’s execution and delivery to
Administrative Agent of this Guaranty. 


                    E. The Loan is, or will be, evidenced by one or
more notes executed by Borrower pursuant to the Loan Agreement and payable to
the order of Lenders in the aggregate principal face amount of up to
$75,000,000 (such notes, as may hereafter be renewed, extended, supplemented,
increased or modified and in effect from time to time, and all other notes
given in substitution therefor, or in modification, renewal, or extension
thereof, in whole or in part, is herein collectively called the “Note”). 


                    F. Borrower and BofA may from time to time
enter into one or more “Swap Contracts” as defined in the Loan Agreement. 





                    G. Any capitalized term used and not defined in
this Guaranty shall have the meaning given to such term in the Loan Agreement.
This Guaranty is one of the Loan Documents described in the Loan Agreement. 


                    H. Lenders and Administrative Agent require as
a condition to entering into the Loan Agreement, that Guarantor shall have
executed and delivered this Guaranty, which amends and restates the Original
Guaranty in its entirety, for the benefit of Lenders and Administrative Agent. 


Statement of Agreements


                    For
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, and as a material inducement to Lenders to extend credit to
Borrower, Guarantor hereby guarantees to Administrative Agent and Lenders the
prompt and full payment and performance of the indebtedness and obligations
described below in this Guaranty (collectively called the “Guaranteed
Obligations”), this Guaranty being upon the following terms and conditions: 


                    1. Guaranty of Payment. Guarantor hereby
jointly and severally, unconditionally and irrevocably guarantees to
Administrative Agent and Lenders the punctual payment when due, whether by
lapse of time, by acceleration of maturity, or otherwise, of (a) all principal,
interest (including interest accruing after the commencement of any bankruptcy
or insolvency proceeding by or against Borrower, whether or not allowed in such
proceeding), fees, late charges, costs, expenses, indemnification indebtedness,
and other sums of money now or hereafter due and owing, or which Borrower is
obligated to pay, pursuant to the terms of the Note, the Loan Agreement, the
Mortgage, the Environmental Agreement, any application, agreement, note or
other document executed and delivered in connection with any Swap Contract or
any other Loan Documents, including any indemnifications contained in the Loan
Documents, now or hereafter existing, and all renewals, extensions,
refinancings, modifications, supplements or amendments of such indebtedness, or
any of the Loan Documents, or any part thereof, (b) payment by Borrower of all
customary or necessary costs and expenses actually incurred by Borrower,
Administrative Agent or Lenders in connection with the operation, maintenance
and management of the Land and the Improvements, including, without limitation,
condominium common charges and assessments, insurance premiums, taxes and
assessments, payments in lieu of taxes, utilities, repair, replacement and all
other maintenance costs and expenses, equipment lease payments, management
fees, professional fees, accounting fees, salaries, fringe and other benefits
due to all employees engaged in the operation, maintenance or management of the
Land and the Improvements, payroll and related taxes and any and all other
customary or necessary operating expenses, (c) any and all transfer taxes which
may be due in connection with the foreclosure of the Mortgage or delivery of a
deed-in-lieu of foreclosure of the Mortgage, (d) all legal and other costs or
expenses paid or incurred by or on behalf of Administrative Agent and/or
Lenders in the enforcement thereof or hereof, (e) all leasing commissions,
tenant allowances and/or other amounts which Borrower is obligated to pay as
landlord under any and all existing leases of the Property and under any and
all future leases at the Property executed while Borrower owns the Property and
(f) any loss, cost, damage or expense paid or incurred by or on behalf of
Administrative Agent and Lenders by reason of (i) any fraud or material
misrepresentation, (ii) taxes of any kind (whether characterized as transfer,
gains or other taxes) 


2





payable in connection with the foreclosure sale of the Property,
irrespective of who pays such taxes, (iii) application of any proceeds of the
Loan to any purpose other than as provided in the Loan Documents (provided that
Guarantor’s liability under this clause (iii) shall not apply to distributions
made by Borrower more than thirty (30) days prior to a Default provided that
such distributions are in the ordinary course of business and Borrower is
solvent at the time of such distributions); (iv) the application of any
insurance or condemnation proceeds or other funds or payments other than
strictly in accordance with the Loan Documents, (v) the misapplication of any
security deposits, (vi) rents, sales proceeds, or other sums received after
default under the Loan Documents which are not applied to expenses of operating
the Property or paid to Administrative Agent or a duly appointed receiver of
the Property, (vii) any failure to deliver to Administrative Agent, after
demand therefor, any agreements relating to the operation, management, leasing,
use, occupancy or construction of the Property, (viii) any intentional physical
waste in respect of the Property, (ix) any failure to pay or discharge any real
estate tax, other tax, assessment, fine, penalty or lien against the Property
to the extent revenue from leases of the Property was available to pay same,
(x) liability as landlord under any lease(s) relating to the Property which
liability accrued prior to Administrative Agent’s or Lenders’ succeeding to
such interest of Borrower, which Administrative Agent or Lenders is or becomes
obligated for by virtue of Administrative Agent or Lenders succeeding to the
interests of Borrower, (xi) any Insolvency Event (as hereinafter defined),
(xii) any state of facts or circumstances which are contrary to the
representations and warranties set forth in Section 31 or (xiii) Lenders being
required by any agreement entered into with a tenant of the Property to release
any insurance and/or condemnation award proceeds as to which Borrower is not
entitled to have applied to restoration of the Property pursuant to Sections
2.1(d), 2.1(e) and/or 2.1(g), as applicable of each Mortgage (the indebtedness
described above in this Section 1 is herein collectively called the
“Indebtedness”). Notwithstanding the foregoing, (A) Guarantor’s aggregate
liability in respect of the principal amount of the Loan (the “Principal Liability”)
shall be limited to the PL Amount as defined below (the limitation in this
proviso being herein referred to as the “Principal Liability Limitation”) and
(B) Guarantor’s liability in respect of interest, fees, penalties and late
charges and in respect of clause (b) above shall be equal to the aggregate
amount of all such amounts accrued and unpaid as of the Determination Date (as
hereinafter defined), provided that (x) in no event shall the Principal
Liability Limitation in the foregoing proviso affect Guarantor’s liability
hereunder as to all interest, fees, penalties, late charges and any other
amounts (other than principal) due under the Loan Documents and any amounts due
and owing pursuant to clauses (b), (c), (d), (e) and (f) above (the “Guarantor’s
Non-Principal Liability”) and (y) the effectiveness or continuing effectiveness
of the Principal Liability Limitation shall be conditioned on the absence of
any Insolvency Event, it being understood and agreed that if said condition is
not continuously satisfied Guarantor’s liability hereunder in respect of the
entire principal amount of the Loan and all other amounts due under the Loan
Documents shall be in full force and effect and the Principal Liability
Limitation shall be void and of no force or effect. The “PL Amount” shall mean
an amount equal to zero dollars ($0). 


                    As
used herein, the term “Determination Date” shall mean the date which is the
earliest to occur of (1) the acceptance by Administrative Agent or
Administrative Agent’s designee of the conveyance of the premises encumbered by
the Mortgage by deed or assignment in lieu of foreclosure, or (2) the date upon
which a sale (whether made under a power of sale, by virtue of a judicial
proceeding or judgment or decree of foreclosure or sale or otherwise) of such 


3





mortgaged premises occurs as a result of enforcement of the Mortgage or
(3) payment in full of Borrower’s obligations under the Note, Mortgage and Loan
Agreement. 


                    As
used herein, the term “Insolvency Event” shall mean any voluntary or collusive
involuntary filing of any bankruptcy, insolvency or similar proceeding by or
against Borrower or Guarantor. 


                    In
the event of a foreclosure sale, Guarantor agrees that Guarantor’s Non-Principal
Liability obligation hereunder shall not be reduced out of the proceeds of such
sale except to the extent that such proceeds exceed the sum of (x) the unpaid
principal amount of the Loan, (y) costs and expenses of such sale and (z) the
amount of any taxes or assessments or any similar charges paid out of the
proceeds of such sale or subject to which the Property has been sold. Nothing
herein is intended to require Administrative Agent to proceed against Borrower
or any security for the Loan before proceeding against Guarantor at any time or
limit Administrative Agent’s right to proceed against Guarantor at any time or
from time to time for principal, interest, default interest and late charges
guaranteed hereby which are not paid as and when the same become due in
accordance with the terms of the Note, Loan Agreement and Mortgage whether or
not Administrative Agent shall have declared the principal of the Note and
accrued and unpaid interest, default interest and late charges payable
thereunder or under the Mortgage or the Loan Agreement to be immediately due
and payable. 


                    This
Guaranty covers the Indebtedness, whether presently outstanding or arising
subsequent to the date hereof, including all amounts advanced by Lenders in stages
or installments. The guaranty of Guarantor as set forth in this Section 1 is a
continuing guaranty of payment and not a guaranty of collection. 


                    2.
Guaranty of Performance. Guarantor additionally hereby unconditionally and
irrevocably guarantees to Administrative Agent and Lenders the timely
performance of all other obligations of Borrower under all of the Loan
Documents, including, without limiting the generality of the foregoing:  


	
  
 	
  
 
	
  
 	
           (a) that
 the tenant improvement work required to be performed by the landlord under
 any and all leases, both existing and future, of space in the Improvements
 (the “TI Work”) will be constructed in accordance with such leases and the
 Loan Agreement; and 
 
	
  
 	
  
 
	
  
 	
           (b) that the TI Work will be completed, lien
 free, and ready for occupancy, including delivery of any permits,
 certificates or governmental approvals required by law or the applicable
 lease, on or before the date required in such lease.
 


If any of such obligations of Borrower are not complied with, in any
respect whatsoever, and without the necessity of any notice from Administrative
Agent or Lenders to Guarantor, Guarantor agrees to (i) assume all
responsibility for the completion of the TI Work and, at Guarantor’s own cost and
expense, cause the TI Work to be fully completed in accordance with the leases
of the Property and the Loan Documents; (ii) pay all bills in connection with
the construction of the TI Work; and (iii) indemnify and hold Administrative
Agent and Lenders harmless from any and all loss, cost, liability or expense
that Administrative Agent and Lenders 


4





may suffer by reason of any such non-compliance. So long as all of such
obligations are being performed by Borrower or Guarantor and no Default exists,
Lenders will make the Loan proceeds, if any, available under and subject to the
terms of the Loan Agreement. If after the occurrence of a Default, and without
limiting the rights and remedies of Administrative Agent and Lenders,
Administrative Agent, in its sole and absolute discretion, is dissatisfied with
the progress of construction by Borrower and/or Guarantor, Administrative Agent
may, at its option, without notice to Guarantor or anyone else, complete the TI
Work either before or after commencement of foreclosure proceedings or before
or after exercise of any other right or remedy of Administrative Agent against
Borrower or Guarantor and expend such sums as Administrative Agent, in its sole
and absolute discretion, deems necessary or advisable to complete the TI Work,
and Guarantor hereby waives any right to contest any such expenditures by
Administrative Agent and/or Lenders. The amount of any and all expenditures
made by Administrative Agent for the foregoing purposes shall bear interest
from the date made until repaid to Administrative Agent, at a rate per annum
equal to the interest rate provided for in the Note and, together with such
interest, shall be due and payable by Guarantor to Administrative Agent upon
demand. Neither Lenders nor Administrative Agent have nor shall they ever have
any obligation to complete the TI Work or take any such action. The obligations
and liability of Guarantor under this Section 2 shall not be limited or
restricted by the existence of (or any terms of) the guaranty of payment under
Section 1. 


                    3.
Primary Liability of Guarantor.  


                    (a) This Guaranty is an absolute, irrevocable
and unconditional guaranty of payment and performance. Guarantor shall be
liable for the payment and performance of the Guaranteed Obligations as a
primary obligor. This Guaranty shall be effective as a waiver of, and Guarantor
hereby expressly waives, any and all rights to which Guarantor may otherwise
have been entitled under any suretyship laws in effect from time to time,
including any right or privilege, whether existing under statute, at law or in
equity, to require Administrative Agent or Lenders to take prior recourse or
proceedings against any collateral, security or Person (hereinafter defined)
whatsoever. 


                    (b) Guarantor hereby agrees that in the event of
(i) default by Borrower in payment or performance of the Guaranteed
Obligations, or any part thereof, when such indebtedness or performance becomes
due, either by its terms or as the result of the exercise of any power to
accelerate; (ii) the failure of Guarantor to perform completely and
satisfactorily the covenants, terms and conditions of any of the Guaranteed
Obligations; (iii) the death, incompetency, dissolution or insolvency of Guarantor,
provided, however, that the death of a Guarantor shall not be an Event of
Default if a new guarantor satisfactory to Administrative Agent in its sole
discretion assumes the deceased Guarantor’s obligations within sixty (60) days
of the death of such Guarantor; (iv) the inability of Guarantor to pay debts as
they mature; (v) an assignment by Guarantor for the benefit of creditors; (vi)
the institution of any proceeding by or against Guarantor in bankruptcy or for
a reorganization or an arrangement with creditors, or for the appointment of a
receiver, trustee or custodian for any of them or for any of their respective
properties; (vii) the determination by Administrative Agent in good faith that
a material adverse change has occurred in the financial condition of Guarantor;
(viii) the entry of a judgment against Guarantor for an amount in excess of
$500,000 and Guarantor shall not discharge the same or cause it to be
discharged within sixty (60) days from the entry thereof, or shall not 


5





appeal therefrom or from the order, decree or process upon which or
pursuant to which said judgment was granted, based or entered, and secure a
stay of execution or bond over such judgment by a commercially acceptable
bonding company pending such appeal; (ix) a writ or order of attachment, levy
or garnishment is issued against Guarantor; (x) the falsity in any material
respect of, or any material omission in, any representation made to
Administrative Agent and/or Lenders by Guarantor; or (xi) any transfer of assets
of any Guarantor, without Administrative Agent’s prior consent (except for
transfers of assets for estate planning purposes valued at less than $50,000
per year per Guarantor, customary political and charitable contributions, and
transfers for which Guarantor receives consideration substantially equivalent
to the fair market value of the transferred asset) (individually and
collectively an “Event of Default”); then upon the occurrence of such Event of
Default, the Guaranteed Obligations, for purposes of this Guaranty, shall be
deemed immediately due and payable at the election of Administrative Agent, and
Guarantor shall, on demand and without presentment, protest, notice of protest,
further notice of nonpayment or of dishonor, default or nonperformance, or
notice of acceleration or of intent to accelerate, or any other notice
whatsoever, without any notice having been given to Guarantor previous to such
demand of the acceptance by Administrative Agent and/or Lenders of this
Guaranty, and without any notice having been given to Guarantor previous to
such demand of the creating or incurring of such indebtedness or of such
obligation to perform, all such notices being hereby waived by Guarantor, pay
the amount due to Administrative Agent or perform or observe the agreement,
covenant, term or condition, as the case may be, and pay all damages and all
costs and expenses that may arise in consequence of such Event of Default
(including, without limitation, all attorneys’ fees and expenses, investigation
costs, court costs, and any and all other costs and expenses incurred by
Administrative Agent in connection with the collection and enforcement of the
Note, this Guaranty or any other Loan Document), whether or not suit is filed
thereon, or whether at maturity or by acceleration, or whether before or after
maturity, or whether in connection with bankruptcy, insolvency or appeal. It
shall not be necessary for Administrative Agent, in order to enforce such
payment or performance by Guarantor, first to institute suit or pursue or
exhaust any rights or remedies against Borrower or others liable on such
indebtedness or for such performance, or to enforce any rights against any
security that shall ever have been given to secure such indebtedness or
performance, or to join Borrower or any others liable for the payment or
performance of the Guaranteed Obligations or any part thereof in any action to
enforce this Guaranty, or to resort to any other means of obtaining payment or
performance of the Guaranteed Obligations; provided, however, that nothing
herein contained shall prevent Administrative Agent from suing on the Note or
foreclosing the Mortgage or from exercising any other rights thereunder, and if
such foreclosure or other remedy is availed of, only the net proceeds therefrom,
after deduction of all charges and expenses of every kind and nature
whatsoever, shall be applied in reduction of the amount due on the Note and
Mortgage, and Administrative Agent shall not be required to institute or
prosecute proceedings to recover any deficiency as a condition of payment
hereunder or enforcement hereof. At any sale of the Property or other
collateral given for the Indebtedness or any part thereof, whether by
foreclosure or otherwise, Administrative Agent may at its discretion purchase
all or any part of the Property or collateral so sold or offered for sale for
its own account and may, in payment of the amount bid therefor, deduct such
amount from the balance due it pursuant to the terms of the Note, Mortgage and
other Loan Documents. 


6





                    (c) Suit may be brought or demand may be made
against Borrower or against all parties who have signed this Guaranty or any
other guaranty covering all or any part of the Guaranteed Obligations, or
against any one or more of them, separately or together, without impairing the
rights of Administrative Agent and/or Lenders against any party hereto. Any
time that Administrative Agent is entitled to exercise its rights or remedies
hereunder, it may in its discretion elect to demand payment and/or performance.
If Administrative Agent elects to demand performance, it shall at all times
thereafter have the right to demand payment until all of the Guaranteed
Obligations have been paid and performed in full. If Administrative Agent elects
to demand payment, it shall at all times thereafter have the right to demand
performance until all of the Guaranteed Obligations have been paid and
performed in full.


                    4. Certain Agreements and Waivers by Guarantor. 


                   (a) Guarantor hereby agrees that neither the
rights or remedies of Administrative Agent and Lenders nor Guarantor’s
obligations under the terms of this Guaranty shall be released, diminished,
impaired, reduced or affected by any one or more of the following events,
actions, facts, or circumstances, and the liability of Guarantor under this
Guaranty shall be absolute and unconditional irrespective of:


	
  
 	
  
 
	
  
 	
           (1) any limitation of liability or recourse in
 any other Loan Document or arising under any law;
 
	
  
 	
  
 
	
  
 	
           (2) any claim or defense that this Guaranty
 was made without consideration or is not supported by adequate consideration;
 
	
  
 	
  
 
	
  
 	
           (3) the taking or accepting of any other
 security or guaranty for, or right of recourse with respect to, any or all of
 the Guaranteed Obligations;
 
	
  
 	
  
 
	
  
 	
           (4) any homestead exemption or any other
 exemption that is waivable under applicable law;
 
	
  
 	
  
 
	
  
 	
           (5) any release, surrender, abandonment,
 exchange, alteration, sale or other disposition, subordination,
 deterioration, waste, failure to protect or preserve, impairment, or loss of,
 or any failure to create or perfect any lien or security interest with
 respect to, or any other dealings with, any collateral or security at any
 time existing or purported, believed or expected to exist in connection with
 any or all of the Guaranteed Obligations, including any impairment of
 Guarantor’s recourse against any Person or collateral;
 
	
  
 	
  
 
	
  
 	
           (6) whether express or by operation of law,
 any partial release of the liability of Guarantor hereunder, or if one or
 more other guaranties are now or hereafter obtained by Administrative Agent
 and/or Lenders covering all or any part of the Guaranteed Obligations, any
 complete or partial release of any one or more of such guarantors under any
 such other guaranty, or any complete or partial release of Borrower or any
 other party liable, directly or indirectly, for the payment or performance of
 any or all of the Guaranteed Obligations;
 


7









	
  
 	
  
 
	
  
 	
           (7) the
 death, insolvency, bankruptcy, disability, dissolution, liquidation,
 termination, receivership, reorganization, merger, consolidation, change of
 form, structure or ownership, sale of all assets, or lack of corporate,
 partnership or other power of Borrower or any other party at any time liable
 for the payment or performance of any or all of the Guaranteed Obligations; 
 
	
  
 	
  
 
	
  
 	
           (8)
 either with or without notice to or consent of Guarantor: any renewal,
 extension, modification, supplement, subordination or rearrangement of the
 terms of any or all of the Guaranteed Obligations and/or any of the Loan
 Documents, including, without limitation, material alterations of the terms
 of payment (including changes in maturity date(s) and interest rate(s)) or performance
 or any other terms thereof, or any waiver, termination, or release of, or
 consent to departure from, any of the Loan Documents or any other guaranty of
 any or all of the Guaranteed Obligations, or any adjustment, indulgence,
 forbearance, or compromise that may be granted from time to time by
 Administrative Agent and/or Lenders to Borrower, Guarantor, and/or any other
 Person at any time liable for the payment or performance of any or all of the
 Guaranteed Obligations; 
 
	
  
 	
  
 
	
  
 	
           (9) any
 neglect, lack of diligence, delay, omission, failure, or refusal of
 Administrative Agent and/or Lenders to take or prosecute (or in taking or
 prosecuting) any action for the collection or enforcement of any of the
 Guaranteed Obligations, or to foreclose or take or prosecute any action to
 foreclose (or in foreclosing or taking or prosecuting any action to
 foreclose) upon any security therefor, or to exercise (or in exercising) any
 other right or power with respect to any security therefor, or to take or
 prosecute (or in taking or prosecuting) any action in connection with any
 Loan Document, or any failure to sell or otherwise dispose of in a
 commercially reasonable manner any collateral securing any or all of the
 Guaranteed Obligations; 
 
	
  
 	
  
 
	
  
 	
           (10) any
 failure of Administrative Agent and/or Lenders to notify Guarantor of any
 creation, renewal, extension, rearrangement, modification, supplement,
 subordination, or assignment of the Guaranteed Obligations or any part
 thereof, or of any Loan Document, or of any release of or change in any
 security, or of any other action taken or refrained from being taken by
 Administrative Agent and/or Lenders against Borrower or any security or other
 recourse, or of any new agreement between Administrative Agent and/or Lenders
 and Borrower, it being understood that Administrative Agent and/or Lenders
 shall not be required to give Guarantor any notice of any kind under any
 circumstances with respect to or in connection with the Guaranteed
 Obligations, any and all rights to notice Guarantor may have otherwise had
 being hereby waived by Guarantor, and Guarantor shall be responsible for
 obtaining for itself information regarding Borrower, including, but not
 limited to, any changes in the business or financial condition of Borrower, and
 Guarantor acknowledges and agrees that Administrative Agent and/or Lenders
 shall have no duty to notify Guarantor of any information which
 Administrative Agent and/or Lenders may have concerning Borrower; 
 
	
  
 	
  
 
	
  
 	
           (11) if
 for any reason Administrative Agent and/or Lenders is required to refund any
 payment by Borrower to any other party liable for the payment or 
 


8









	
  
 	
  
 
	
  
 	
 performance of any or all of the Guaranteed Obligations or pay the
 amount thereof to someone else; 
 
	
  
 	
  
 
	
  
 	
           (12) the
 making of advances by Administrative Agent and/or Lenders to protect their
 interest in the Property, preserve the value of the Property or for the
 purpose of performing any term or covenant contained in any of the Loan
 Documents; 
 
	
  
 	
  
 
	
  
 	
           (13) the
 existence of any claim, counterclaim, set-off or other right that Guarantor
 may at any time have against Borrower, Administrative Agent, any Lender, or
 any other Person, whether or not arising in connection with this Guaranty,
 the Note, the Loan Agreement, or any other Loan Document; 
 
	
  
 	
  
 
	
  
 	
           (14) the
 unenforceability of all or any part of the Guaranteed Obligations against
 Borrower, whether because the Guaranteed Obligations exceed the amount
 permitted by law or violate any usury law, or because the act of creating the
 Guaranteed Obligations, or any part thereof, is ultra vires, or because the
 officers or Persons creating the Guaranteed Obligations acted in excess of
 their authority, or because of a lack of validity or enforceability of or
 defect or deficiency in any of the Loan Documents, or because Borrower has
 any valid defense, claim or offset with respect thereto, or because
 Borrower’s obligation ceases to exist by operation of law, or because of any
 other reason or circumstance, it being agreed that Guarantor shall remain
 liable hereon regardless of whether Borrower or any other Person be found not
 liable on the Guaranteed Obligations, or any part thereof, for any reason
 (and regardless of any joinder of Borrower or any other party in any action
 to obtain payment or performance of any or all of the Guaranteed
 Obligations); 
 
	
  
 	
  
 
	
  
 	
           (15) any
 order, ruling or plan of reorganization emanating from proceedings under
 Title 11 of the United States Code with respect to Borrower or any other
 Person, including any extension, reduction, composition, or other alteration
 of the Guaranteed Obligations, whether or not consented to by Lender; or 
 
	
  
 	
  
 
	
  
 	
           (16) any
 other condition, event, omission, action or inaction that would in the
 absence of this paragraph result in the release or discharge of the Guarantor
 from the performance or observance of any obligation, covenant or agreement
 contained in this Guaranty or any other agreement. 
 
	
  
 	
  
 
	
  
 	
           (17) any
 early termination of any of the Guaranteed Obligations; 
 
	
  
 	
  
 
	
  
 	
           (18)
 Administrative Agent’s and/or Lenders’ enforcement or forbearance from
 enforcement of the Guaranteed Obligations on a net or gross basis; or 
 
	
  
 	
  
 
	
  
 	
           (19) any
 invalidity, irregularity or unenforceability in whole or in part (including
 with respect to any netting provision) of any Swap Contract or any
 confirmation, instrument or agreement required thereunder or related thereto,
 or any transaction entered into thereunder, or any limitation on the
 liability of Borrower thereunder or any limitation on the method or terms of
 payment thereunder which may now or hereafter be caused or imposed in any
 manner whatsoever. 
 


9





                    (b)
In the event any payment by Borrower or any other Person to Administrative
Agent and/or Lenders is held to constitute a preference, fraudulent transfer or
other voidable payment under any bankruptcy, insolvency or similar law, or if
for any other reason Administrative Agent and/or Lenders is required to refund
such payment or pay the amount thereof to any other party, such payment by
Borrower or any other party to Administrative Agent and/or Lenders shall not
constitute a release of Guarantor from any liability hereunder, and this
Guaranty shall continue to be effective or shall be reinstated (notwithstanding
any prior release, surrender or discharge by Administrative Agent and/or
Lenders of this Guaranty or of Guarantor), as the case may be, with respect to,
and this Guaranty shall apply to, any and all amounts so refunded by Administrative
Agent and/or Lenders or paid by Administrative Agent and/or Lenders to another
Person (which amounts shall constitute part of the Guaranteed Obligations), and
any interest paid by Administrative Agent and/or Lenders and any attorneys’
fees, costs and expenses paid or incurred by Administrative Agent and/or
Lenders in connection with any such event. It is the intent of Guarantor,
Administrative Agent and Lenders that the obligations and liabilities of
Guarantor hereunder are absolute and unconditional under any and all
circumstances and that until the Guaranteed Obligations are fully and finally
paid and performed, and not subject to refund or disgorgement, the obligations
and liabilities of Guarantor hereunder shall not be discharged or released, in
whole or in part, by any act or occurrence that might, but for the provisions
of this Guaranty, be deemed a legal or equitable discharge or release of a
guarantor. Administrative Agent and/or Lenders shall be entitled to continue to
hold this Guaranty in its possession for the longer of (i) the period after
which any performance of obligations under the Environmental Agreement shall
accrue, or (ii) a period of one year from the date the Guaranteed Obligations
are paid and performed in full and for so long thereafter as may be necessary
to enforce any obligation of Guarantor hereunder and/or to exercise any right
or remedy of Administrative Agent and/or Lenders hereunder. 


                    (c)
If acceleration of the time for payment of any amount payable by Borrower under
the Note, the Loan Agreement, any Swap Contract or any other Loan Document is
stayed or delayed by any law or tribunal, all such amounts shall nonetheless be
payable by Guarantor on demand by Administrative Agent and/or Lenders. 


                    5.
Subordination. If, for any reason whatsoever, Borrower is now or hereafter
becomes indebted to Guarantor:  


	
  
 	
  
 
	
  
 	
           (a) such
 indebtedness and all interest thereon and all liens, security interests and
 rights now or hereafter existing with respect to property of Borrower
 securing such indebtedness shall, at all times, be subordinate in all
 respects to the Guaranteed Obligations and to all liens, security interests
 and rights now or hereafter existing to secure the Guaranteed Obligations; 
 
	
  
 	
  
 
	
  
 	
           (b)
 Guarantor shall not be entitled to enforce or receive payment, directly or
 indirectly, of any such indebtedness of Borrower to Guarantor until the
 Guaranteed Obligations have been fully and finally paid and performed; 
 
	
  
 	
  
 
	
  
 	
           (c) Guarantor
 hereby assigns and grants to Administrative Agent for the benefit of Lenders
 a security interest in all such indebtedness and security therefor, if any,
 of Borrower to Guarantor now existing or hereafter arising, including any
 dividends and 
 


10









	
  
 	
  
 
	
  
 	
 payments pursuant to debtor relief or insolvency proceedings referred
 to below. In the event of receivership, bankruptcy, reorganization,
 arrangement or other debtor relief or insolvency proceedings involving
 Borrower as debtor, Administrative Agent shall have the right to prove the
 claim of Administrative Agent and/or Lenders in any such proceeding so as to
 establish their rights hereunder and shall have the right to receive directly
 from the receiver, trustee or other custodian (whether or not a Default shall
 have occurred or be continuing under any of the Loan Documents), dividends
 and payments that are payable upon any obligation of Borrower to Guarantor
 now existing or hereafter arising, and to have all benefits of any security
 therefor, until the Guaranteed Obligations have been fully and finally paid
 and performed. If, notwithstanding the foregoing provisions, Guarantor should
 receive any payment, claim or distribution that is prohibited as provided
 above in this Section 5, Guarantor shall pay the same to Administrative Agent
 immediately, Guarantor hereby agreeing that it shall receive the payment,
 claim or distribution in trust for Administrative Agent and Lenders and shall
 have absolutely no dominion over the same except to pay it immediately to Administrative
 Agent; and
 
	
  
 	
  
 
	
  
 	
           (d)
 Guarantor shall promptly upon request of Administrative Agent from time to
 time execute such documents and perform such acts as Administrative Agent may
 require to evidence and perfect its interest and to permit or facilitate
 exercise of its rights under this Section 5, including, but not limited to,
 execution and delivery of financing statements, proofs of claim, further
 assignments and security agreements, and delivery to Administrative Agent of
 any promissory notes or other instruments evidencing indebtedness of Borrower
 to Guarantor. All promissory notes, accounts receivable ledgers or other
 evidences, now or hereafter held by Guarantor, of obligations of Borrower to
 Guarantor shall contain a specific written notice thereon that the
 indebtedness evidenced thereby is subordinated under and is subject to the
 terms of this Guaranty. 
 


                    6.
Other Liability of Guarantor or Borrower. If Guarantor is or becomes
liable, by endorsement or otherwise, for any indebtedness owing by Borrower to
Administrative Agent and/or Lenders other than under this Guaranty, such
liability shall not be in any manner impaired or affected hereby, and the
rights of Administrative Agent and/or Lenders hereunder shall be cumulative of
any and all other rights that Administrative Agent and/or Lenders may have
against Guarantor. This Guaranty is independent of (and shall not be limited
by) any other guaranty now existing or hereafter given. Further, Guarantor’s
liability under this Guaranty is in addition to any and all other liability
Guarantor may have in any other capacity, including without limitation, its
capacity as a general partner. 


                    7.
Lender Assigns. This Guaranty is for the benefit of Administrative Agent
and Lenders and their successors and assigns, subject to the terms of the Loan
Agreement, and in the event of an assignment of the Guaranteed Obligations, or
any part thereof, the rights and benefits hereunder, to the extent applicable
to the Guaranteed Obligations so assigned, may be transferred with such
Guaranteed Obligations. Guarantor waives notice of any transfer or assignment
of the Guaranteed Obligations, or any part thereof, and agrees that failure to
give notice of any such transfer or assignment will not affect the liabilities
of Guarantor hereunder. 


11





                    8.
Binding Effect. This Guaranty is binding not only on Guarantor, but also on
Guarantor’s heirs, personal representatives, successors and assigns. Upon the
death of Guarantor, if Guarantor is a natural person, this Guaranty shall
continue against Guarantor’s estate as to all of the Guaranteed Obligations,
including that portion incurred or arising after the death of Guarantor and
shall be provable in full against Guarantor’s estate, whether or not the
Guaranteed Obligations are then due and payable. If this Guaranty is signed by
more than one Person, then all of the obligations of Guarantor arising
hereunder shall be jointly and severally binding on each of the undersigned,
and their respective heirs, personal representatives, successors and assigns,
and the term “Guarantor” shall mean all of such Persons and each of them
individually.  


                    9.
Governing Law; Forum; Consent to Jurisdiction. This Guaranty is an agreement
executed under seal. The validity, enforcement, and interpretation of this
Guaranty, shall for all purposes be governed by and construed in accordance
with the laws of the State of New York and applicable United States federal
law, and is intended to be performed in accordance with, and only to the extent
permitted by, such laws. If any Guarantor is a corporation, the designation
“(SEAL)” on this Guaranty shall be effective as the affixing of such
Guarantor’s corporate seal physically to this Guaranty. All obligations of
Guarantor hereunder are payable and performable at the place or places where
the Guaranteed Obligations are payable and performable. Guarantor hereby
irrevocably submits generally and unconditionally for Guarantor and in respect
of Guarantor’s property to the nonexclusive jurisdiction of any state court, or
any United States federal court, sitting in the state specified in the first
sentence of this Section and to the jurisdiction of any state or United States
federal court sitting in the state in which any of the Land is located, over
any suit, action or proceeding arising out of or relating to this Guaranty or
the Guaranteed Obligations. Guarantor hereby irrevocably waives, to the fullest
extent permitted by law, any objection that Guarantor may now or hereafter have
to the laying of venue in any such court and any claim that any such court is
an inconvenient forum. Final judgment in any such suit, action or proceeding
brought in any such court shall be conclusive and binding upon Guarantor and
may be enforced in any court in which Guarantor is subject to jurisdiction.
Guarantor hereby agrees and consents that, in addition to any methods of
service of process provided for under applicable law, all service of process in
any such suit, action or proceeding in any state court, or any United States
federal court, sitting in the state specified in the first sentence of this
Section may be made by certified or registered mail, return receipt requested,
directed to Guarantor at the address set forth at the end of this Guaranty, or
at a subsequent address of which Administrative Agent receives actual notice
from Guarantor in accordance with the notice provisions hereof, and service so
made shall be complete five (5) days after the same shall have been so mailed.
Nothing herein shall affect the right of Administrative Agent to serve process
in any manner permitted by law or limit the right of Administrative Agent to
bring proceedings against Guarantor in any other court or jurisdiction. Guarantor
hereby releases, to the extent permitted by applicable law, all errors and all
rights of exemption, appeal, stay of execution, inquisition, and other rights
to which Guarantor may otherwise be entitled under the laws of the United
States of America or any State or possession of the United States of America
now in force or which may hereinafter be enacted. The authority and power to
appear for and enter judgment against the Guarantor shall not be exhausted by
one or more exercises thereof or by any imperfect exercise thereof and shall
not be extinguished by any judgment entered pursuant thereto. Such authority
may be exercised on one or more  


12





occasions or from time to time in the same or different jurisdiction as
often as the Administrative Agent shall deem necessary and desirable. 


                    10.
Invalidity of Certain Provisions. If any provision of this Guaranty or
the application thereof to any Person or circumstance shall, for any reason and
to any extent, be declared to be invalid or unenforceable, neither the
remaining provisions of this Guaranty nor the application of such provision to
any other Person or circumstance shall be affected thereby, and the remaining
provisions of this Guaranty, or the applicability of such provision to other
Persons or circumstances, as applicable, shall remain in effect and be
enforceable to the maximum extent permitted by applicable law. 


                    11.
Attorneys’ Fees and Costs of Collection. Guarantor shall pay on demand
all attorneys’ fees and all other costs and expenses incurred by Administrative
Agent and/or Lenders in the enforcement of or preservation of Administrative
Agent’s and/or Lenders’ rights under this Guaranty including, without
limitation, all attorneys’ fees and expenses, investigation costs, and all
court costs, whether or not suit is filed hereon, or whether at maturity or by
acceleration, or whether before or after maturity, or whether in connection
with bankruptcy, insolvency or appeal, or whether in connection with the collection
and enforcement of this Guaranty against any other Guarantor, if there be more
than one. Guarantor agrees to pay interest on any expenses or other sums due to
Administrative Agent and/or Lenders under this Section 11 that are not paid
when due, at a rate per annum equal to the interest rate provided for in the
Note. Guarantor’s obligations and liabilities under this Section 11 shall
survive any payment or discharge in full of the Guaranteed Obligations. 


                    12.
Payments. All sums payable under this Guaranty shall be paid in lawful
money of the United States of America that at the time of payment is legal
tender for the payment of public and private debts. 


                    13.
Controlling Agreement. It is not the intention of Administrative Agent,
Lenders or Guarantor to obligate Guarantor to pay interest in excess of that
lawfully permitted to be paid by Guarantor under applicable law. Should it be
determined that any portion of the Guaranteed Obligations or any other amount
payable by Guarantor under this Guaranty constitutes interest in excess of the
maximum amount of interest that Guarantor, in Guarantor’s capacity as
guarantor, may lawfully be required to pay under applicable law, the obligation
of Guarantor to pay such interest shall automatically be limited to the payment
thereof in the maximum amount so permitted under applicable law. The provisions
of this Section 13 shall override and control all other provisions of this
Guaranty and of any other agreement between Guarantor, Administrative Agent and
Lenders. 


                    14.
Representations, Warranties, and Covenants of Guarantor. Guarantor
hereby represents, warrants, and covenants that: (a) Guarantor has a financial
interest in Borrower and will derive a material and substantial benefit,
directly or indirectly, from the making of the Loan to Borrower and from the
making of this Guaranty by Guarantor; (b) this Guaranty is duly authorized and
valid, and is binding upon and enforceable against Guarantor; (c) Guarantor is
not, and the execution, delivery and performance by Guarantor of this Guaranty
will not cause Guarantor to be, in violation of or in default with respect to
any law or in default (or at risk of acceleration of indebtedness) under any
agreement or restriction by which 


13





Guarantor is bound or affected; (d) Guarantor is duly organized,
validly existing, and in good standing under the laws of the state of its
organization and under Delaware laws, is lawfully doing business in New York,
and has full power and authority to enter into and perform this Guaranty; (e)
Guarantor will indemnify Administrative Agent and Lenders from any loss, cost
or expense as a result of any representation or warranty of the Guarantor being
false, incorrect, incomplete or misleading in any material respect; (f) there
is no litigation pending or, to the knowledge of Guarantor, threatened before
or by any tribunal against or affecting Guarantor; (g) all financial statements
and information heretofore furnished to Administrative Agent and Lenders by
Guarantor do, and all financial statements and information hereafter furnished
to Administrative Agent and Lenders by Guarantor will, fully and accurately
present the condition (financial or otherwise) of Guarantor as of their dates
and the results of Guarantor’s operations for the periods therein specified,
and, since the date of the most recent financial statements of Guarantor
heretofore furnished to Administrative Agent, no material adverse change has
occurred in the financial condition of Guarantor, nor, except as heretofore
disclosed in writing to Administrative Agent, has Guarantor incurred any
material liability, direct or indirect, fixed or contingent; (h) after giving
effect to this Guaranty, Guarantor is solvent, is not engaged or about to
engage in business or a transaction for which the property of Guarantor is an
unreasonably small capital, and does not intend to incur or believe that it
will incur debts that will be beyond its ability to pay as such debts mature;
(i) Administrative Agent and Lenders have no duty at any time to investigate or
inform Guarantor of the financial or business condition or affairs of Borrower
or any change therein, and Guarantor will keep fully apprised of Borrower’s
financial and business condition; (j) Guarantor acknowledges and agrees that
Guarantor may be required to pay and perform the Guaranteed Obligations in full
without assistance or support from Borrower or any other Person; and (k)
Guarantor has read and fully understands the provisions contained in the Note,
the Loan Agreement, the Mortgage, the Environmental Agreement, and the other
Loan Documents. Guarantor’s representations, warranties and covenants are a
material inducement to Administrative Agent and Lenders to enter into the other
Loan Documents and shall survive the execution hereof and any bankruptcy,
foreclosure, transfer of security or other event affecting Borrower, Guarantor,
any other party, or any security for all or any part of the Guaranteed
Obligations. 


                    Guarantor
further represents, warrants and covenants that if any Swap Contract shall at
any time be in effect, (x) Guarantor has received and examined copies of each
such Swap Contract, the observance and performance of which by Borrower is
hereby guaranteed; (y) Guarantor will benefit from Administrative Agent’s
and/or any Lender’s entering into each such Swap Contract and any transaction
thereunder with Borrower, and Guarantor has determined that the execution and
delivery by Guarantor of this Guaranty are necessary and convenient to the
conduct, promotion and attainment of the business of Guarantor; and (z)
Administrative Agent and Lenders have no duty to determine whether any Swap
Contract, or any other transaction relating to or arising under any Swap Contract,
will be or has been entered into by Borrower for purposes of hedging interest
rate, currency exchange rate, or other risks arising in its businesses or
affairs and not for purposes of speculation or is otherwise inappropriate for
Borrower. Guarantor’s representations, warranties and covenants are a material
inducement to Administrative Agent to enter into the other Loan Documents and
any Swap Contract shall survive the execution hereof and any bankruptcy,
foreclosure, transfer of security or other event affecting Borrower, Guarantor,
any other party, or any security for all or any part of the Guaranteed
Obligations. 


14





                    15.
Notices. All notices, requests, consents, demands and other
communications required or which any party desires to give hereunder or under
any other Loan Document shall be in writing and, unless otherwise specifically
provided in such other Loan Document, shall be deemed sufficiently given or
furnished if delivered by personal delivery, by nationally recognized overnight
courier service, or by registered or certified United States mail, postage
prepaid, addressed to the party to whom directed at the addresses specified in
this Guaranty (unless changed by similar notice in writing given by the
particular party whose address is to be changed) or by telegram, telex, or
facsimile. Any such notice or communication shall be deemed to have been given
either at the time of personal delivery or, in the case of courier or mail, as
of the date of first attempted delivery at the address and in the manner
provided herein, or, in the case of telegram, telex or facsimile, upon receipt;
provided that, service of a notice required by any applicable statute shall be
considered complete when the requirements of that statute are met. Notwithstanding
the foregoing, no notice of change of address shall be effective except upon
actual receipt. This Section shall not be construed in any way to affect or
impair any waiver of notice or demand provided in this Guaranty or in any Loan
Document or to require giving of notice or demand to or upon any Person in any
situation or for any reason. 


                    16.
Cumulative Rights. The exercise by Administrative Agent and/or Lenders
of any right or remedy hereunder or under any other Loan Document, or at law or
in equity, shall not preclude the concurrent or subsequent exercise of any
other right or remedy. Administrative Agent and Lenders shall have all rights,
remedies and recourses afforded to Administrative Agent and Lenders by reason
of this Guaranty or any other Loan Document or by law or equity or otherwise,
and the same (a) shall be cumulative and concurrent, (b) may be pursued
separately, successively or concurrently against Guarantor or others obligated
for the Guaranteed Obligations, or any part thereof, or against any one or more
of them, or against any security or otherwise, at the sole and absolute
discretion of Administrative Agent, (c) may be exercised as often as occasion
therefor shall arise, it being agreed by Guarantor that the exercise of,
discontinuance of the exercise of or failure to exercise any of such rights,
remedies, or recourses shall in no event be construed as a waiver or release
thereof or of any other right, remedy, or recourse, and (d) are intended to be,
and shall be, nonexclusive. No waiver of any default on the part of Guarantor
or of any breach of any of the provisions of this Guaranty or of any other
document shall be considered a waiver of any other or subsequent default or
breach, and no delay or omission in exercising or enforcing the rights and
powers granted herein or in any other document shall be construed as a waiver
of such rights and powers, and no exercise or enforcement of any rights or
powers hereunder or under any other document shall be held to exhaust such
rights and powers, and every such right and power may be exercised from time to
time. The granting of any consent, approval or waiver by Administrative Agent
and/or Lenders shall be limited to the specific instance and purpose therefor
and shall not constitute consent or approval in any other instance or for any
other purpose. No notice to or demand on Guarantor in any case shall of itself
entitle Guarantor to any other or further notice or demand in similar or other
circumstances. No provision of this Guaranty or any right, remedy or recourse
of Administrative Agent and/or Lenders with respect hereto, or any default or
breach, can be waived, nor can this Guaranty or Guarantor be released or
discharged in any way or to any extent, except specifically in each case by a
writing intended for that purpose (and which refers specifically to this
Guaranty) executed, and delivered to Guarantor, by Administrative Agent. 


15





                    17.
Term of Guaranty. This Guaranty shall continue in effect until all the
Guaranteed Obligations are fully and finally paid, performed and discharged,
except that, and notwithstanding any return of this Guaranty to Guarantor, this
Guaranty shall continue in effect (i) with respect to any of the Guaranteed
Obligations that survive the full and final payment of the indebtedness
evidenced by the Note, (ii) with respect to all obligations and liabilities of
Guarantor under Section 11 and (iii) as provided in Section 4(b).  


                    18.
Financial Statements. As used in this Section, “Financial Statements” means (i)
for each reporting party other than an individual, a balance sheet, income
statement, statements of cash flow and amount and sources of contingent
liabilities, a reconciliation of changes in equity and liquidity verification,
and, unless Administrative Agent otherwise consents, consolidated and
consolidating statements if the reporting party is a holding company or a
parent of a subsidiary entity; and (ii) for each reporting party who is an
individual, a balance sheet, statements of amount and sources of contingent
liabilities, sources and uses of cash and liquidity verification, and, unless
Administrative Agent otherwise consents, Financial Statements for each entity
owned or jointly owned by the reporting party. Each party for whom Financial
Statements are required is a “reporting party” and a specified period to which
the required Financial Statements relate is a “reporting period”. Guarantor
shall provide or cause to be provided to Administrative Agent the following:  


	
  
 	
  
 
	
  
 	
           (a)
 Financial Statements of Guarantor, and copies of filed federal and state
 income tax returns of Guarantor as and when required under the Loan
 Agreement; and 
 
	
  
 	
  
 
	
  
 	
           (b) From
 time to time promptly after Administrative Agent’s request, such additional
 information, reports and statements regarding the business operations and
 financial condition of each reporting party as Administrative Agent may
 reasonably request.
 


All Financial Statements shall be in form and detail satisfactory to
Administrative Agent and shall contain or be attached to the signed and dated
written certification of the reporting party in form satisfactory to
Administrative Agent to certify that the Financial Statements are furnished to
Administrative Agent in connection with the extension of credit by Lenders and
constitute a true and correct statement of the reporting party’s financial
position. All certifications and signatures on behalf of corporations,
partnerships or other entities shall be by a representative of the entity
satisfactory to Administrative Agent. All Financial Statements for a reporting
party who is an individual shall be on Administrative Agent’s then-current
personal financial statement form or in another form satisfactory to Administrative
Agent. All fiscal year-end Financial Statements shall be audited or certified,
as required by Administrative Agent, without any qualification or exception not
acceptable to Administrative Agent, by independent certified public accountants
acceptable to Administrative Agent, and shall contain all reports and
disclosures required by generally accepted accounting principles for a fair
presentation. All fiscal year-end Financial Statements of the following
reporting parties shall be compiled or reviewed by independent certified public
accountants acceptable to Administrative Agent. 


                    All
assets shown on the Financial Statements provided by Guarantor, unless clearly
designated to the contrary shall, be conclusively deemed to be free and clear
of any exemption or any claim of exemption of Guarantor at the date of the
Financial Statements and at 


16





all times thereafter. Acceptance of any Financial Statement by
Administrative Agent and/or Lenders, whether or not in the form prescribed
herein, shall be relied upon by Administrative Agent and Lenders in the
administration, enforcement, and extension of the Guaranteed Obligations. 


                    19.
Financial Covenants. At all times during the term of the Loan, Guarantor shall
maintain in its own name Liquidity (as hereinafter defined) of not less than
$15,000,000. As used herein, the term “Liquidity” shall mean (x) Available
Commitments (as hereinafter defined), (y) unencumbered cash and (z)
unencumbered Cash Equivalents (as hereinafter defined). As used herein, the
term “Available Commitments” shall mean unconditional commitments from solvent
members of Guarantor to contribute capital in cash to Guarantor, which capital
commitments have not been pledged to any party, other than to the lenders under
the Credit Agreement (as hereinafter defined), or encumbered in any way, as
security for indebtedness or otherwise. As used herein, the term “Cash
Equivalents” shall mean (i) any evidence of indebtedness, maturing not more
than one (1) year after the date of issue, issued by the United States of
America or any instrumentality or agency thereof, the principal, interest and
premium, if any, of which is guaranteed fully by, or backed by the full faith
and credit of, the United States of America, (ii) dollar denominated time
deposits, certificates of deposit and bankers acceptances maturing not more
than one (1) year after the date of purchase, issued by (x) any Lender or (y) a
United States commercial banking institution having, or which is the principal
banking subsidiary of a bank holding company having, combined capital and
surplus and undivided profits of not less than $200,000,000, has a commercial
paper rating of “P-1” (or higher) according to Moody’s, “A-1” (or higher)
according to Standard & Poor’s or the equivalent rating by any other
nationally recognized rating agency and which is not on negative watch by any
such rating agencies (any such bank, an “Approved Bank”), or (z) a non-United
States commercial banking institution which is currently ranked among the 100
largest banks in the world (by assets, according to the American Banker), has
combined capital and surplus and undivided profits of not less than
$500,000,000 or whose commercial paper (or the commercial paper of such bank’s holding
company) has a rating of “P-1” (or higher) according to Moody’s, “A-1” (or
higher) according to Standard & Poor’s, or the equivalent rating by any
other nationally recognized rating agency and which is not on negative watch by
any such rating agencies, (iii) commercial paper, maturing not more than 270
days after the date of purchase, issued or guaranteed by a corporation (other
than Borrower or Guarantor or any subsidiary of Borrower or Guarantor or any of
their respective Affiliates) organized and existing under the laws of any state
within the United States of America with a rating, at the time as of which any
determination thereof is to be made, of “P-1” (or higher) according to Moody’s,
or “A-1” (or higher) according to Standard & Poor’s, (iv) FDIC-insured
demand deposits with any bank or trust company maintained in the ordinary
course of business, (v) repurchase or reverse repurchase agreements covering
obligations of the type specified in clause (i) with a term of not more than
seven (7) days with any Approved Bank and (vi) shares of any money market
mutual fund rated at least AAA or the equivalent thereof by Standard &
Poor’s or at least AAA or the equivalent thereof by Moody’s, including, without
limitation, any such mutual fund managed or advised by a Lender and which is
not on negative watch by any such rating agencies. As used herein, the term
“Credit Agreement” shall mean that certain Revolving Credit Agreement dated as
of October 10, 2007 by and among Guarantor and Bank of America, N.A., as
administrative agent for itself and certain other lenders. Together with its
quarterly and annual Financial Statements, Guarantor  


17





shall deliver a reasonably detailed schedule, certified by Guarantor to
be true and accurate, of the Available Commitments as of the date of each such
Financial Statement. 


                    20.
Disclosure of Information. In accordance with the Loan Agreement Lenders
may sell or offer to sell the Loan or interests in the Loan to one or more
assignees or participants and may disclose to any such assignee or participant
or prospective assignee or participant, to Lenders’ affiliates, including
without limitation Banc of America Securities LLC, to any regulatory body
having jurisdiction over Administrative Agent or any Lender and to any other
parties as necessary or appropriate in Lenders’ reasonable judgment, any
information Lenders now have or hereafter obtain pertaining to the Guaranteed
Obligations, this Guaranty, or Guarantor, including, without limitation,
information regarding any security for the Guaranteed Obligations or for this
Guaranty, credit or other information on Guarantor, Borrower, and/or any other
party liable, directly or indirectly, for any part of the Guaranteed
Obligations. 


                    21.
Right of Set-Off. Upon the occurrence and during the continuance of any
Default, however defined, in the payment or performance when due of any of the
Guaranteed Obligations, Lenders are hereby authorized at any time and from time
to time, to the fullest extent permitted by applicable law, without notice to
any Person (any such notice being expressly waived by Guarantor to the fullest
extent permitted by applicable law), to set off and apply any and all deposits,
funds, or assets at any time held and other indebtedness at any time owing by
any Lender to or for the credit or the account of Guarantor against any and all
of the obligations of Guarantor now or hereafter existing under this Guaranty,
whether or not any such Lender or Administrative Agent shall have made any
demand under this Guaranty or exercised any other right or remedy hereunder.
Lenders will promptly notify Administrative Agent, the other Lenders and
Guarantor after any such set-off and application made by any such Lender,
provided that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of Lenders under this Section 21 are
in addition to the other rights and remedies (including other rights of
set-off) that Administrative Agent and Lenders may have and every right of
setoff and lien shall continue in full force and effect until such right of
setoff or lien is specifically waived or released by an instrument in writing
executed by Administrative Agent. 


                    22.
Subrogation. Notwithstanding anything to the contrary contained herein,
Guarantor shall not have any right of subrogation in or under any of the Loan
Documents or to participate in any way therein, or in any right, title or
interest in and to any security or right of recourse for the Indebtedness or
any right to reimbursement, exoneration, contribution, indemnification or any
similar rights, until the Indebtedness has been fully and finally paid. This
waiver is given to induce Administrative Agent and Lenders to make the Loan to
Borrower. 


                    23.
Further Assurances. Guarantor at Guarantor’s expense will promptly
execute and deliver to Administrative Agent upon Administrative Agent’s request
all such other and further documents, agreements, and instruments in compliance
with or accomplishment of the agreements of Guarantor under this Guaranty. 


                    24.
No Fiduciary Relationship. The relationship between Administrative
Agent, Lenders and Guarantor is solely that of lenders (acting through
Administrative Agent) and guarantor. Administrative Agent and Lenders have no
fiduciary or other special relationship 


18





with or duty to Guarantor and none is created hereby or may be inferred
from any course of dealing or act or omission of Administrative Agent and/or
Lenders. 


                    25.
Interpretation. If this Guaranty is signed by more than one Person as
“Guarantor”, then the term “Guarantor” as used in this Guaranty shall refer to
all such Persons, jointly and severally, and all promises, agreements,
covenants, waivers, consents, representations, warranties and other provisions
in this Guaranty are made by and shall be binding upon each and every such
Person, jointly and severally and Administrative Agent may pursue any Guarantor
hereunder without being required (i) to pursue any other Guarantor hereunder or
(ii) pursue rights and remedies under the Mortgage and/or applicable law with
respect to the Property or any other Loan Documents. Whenever the context of
any provisions hereof shall require it, words in the singular shall include the
plural, words in the plural shall include the singular, and pronouns of any
gender shall include the other gender. Captions and headings in the Loan
Documents are for convenience only and shall not affect the construction of the
Loan Documents. All references in this Guaranty to Schedules, Articles,
Sections, Subsections, paragraphs and subparagraphs refer to the respective
subdivisions of this Guaranty, unless such reference specifically identifies
another document. The terms “herein”, “hereof”, “hereto”, “hereunder” and
similar terms refer to this Guaranty and not to any particular Section or
subsection of this Guaranty. The terms “include” and “including” shall be
interpreted as if followed by the words “without limitation”. All references in
this Guaranty to sums denominated in dollars or with the symbol “$” refer to
the lawful currency of the United States of America, unless such reference
specifically identifies another currency. For purposes of this Guaranty, “Person”
or “Persons” shall include firms, associations, partnerships (including limited
partnerships), joint ventures, trusts, corporations, limited liability
companies, and other legal entities, including governmental bodies, agencies,
or instrumentalities, as well as natural persons. 


                    26.
Time of Essence. Time shall be of the essence in this Guaranty with
respect to all of Guarantor’s obligations hereunder. 


                    27.
Counterparts. This Guaranty may be executed in multiple counterparts,
each of which, for all purposes, shall be deemed an original, and all of which
taken together shall constitute but one and the same agreement. 


                    28.
Entire Agreement. This Guaranty embodies the entire agreement between Administrative
Agent, Lenders and Guarantor with respect to the guaranty by Guarantor of the
Guaranteed Obligations. This Guaranty supersedes all prior agreements and
understandings, if any, with respect to the guaranty by Guarantor of the
Guaranteed Obligations. No condition or conditions precedent to the
effectiveness of this Guaranty exist. This Guaranty shall be effective upon
execution by Guarantor and delivery to Administrative Agent. This Guaranty may
not be modified, amended or superseded except in a writing signed by
Administrative Agent and Guarantor referencing this Guaranty by its date and
specifically identifying the portions hereof that are to be modified, amended
or superseded. 


                    29.
WAIVER OF JURY TRIAL. WITHOUT
INTENDING IN ANY WAY TO LIMIT THE PARTIES’ AGREEMENT TO ARBITRATE ANY “DISPUTE”
(FOR PURPOSES OF THIS SECTION, AS DEFINED BELOW) AS SET FORTH IN THIS GUARANTY,
TO THE EXTENT ANY “DISPUTE” IS NOT SUBMITTED TO 


19





ARBITRATION OR IS DEEMED BY THE ARBITRATOR OR
BY ANY COURT WITH JURISDICTION TO BE NOT ARBITRABLE OR NOT REQUIRED TO BE
ARBITRATED, GUARANTOR, ADMINISTRATIVE AGENT AND LENDERS WAIVE TRIAL BY JURY IN
RESPECT OF ANY SUCH “DISPUTE” AND ANY ACTION ON SUCH “DISPUTE.” THIS WAIVER IS
KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY GUARANTOR, ADMINISTRATIVE AGENT
AND LENDERS, AND GUARANTOR, ADMINISTRATIVE AGENT AND LENDERS HEREBY REPRESENT
THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY PERSON OR
ENTITY TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR
NULLIFY ITS EFFECT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES
ENTERING INTO THE LOAN DOCUMENTS. GUARANTOR, ADMINISTRATIVE AGENT AND LENDERS
ARE EACH HEREBY AUTHORIZED TO FILE A COPY OF THIS SECTION IN ANY PROCEEDING AS
CONCLUSIVE EVIDENCE OF THIS WAIVER OF JURY TRIAL. GUARANTOR FURTHER REPRESENTS
AND WARRANTS THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS GUARANTY AND
IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, OR HAS HAD THE
OPPORTUNITY TO BE REPRESENTED BY INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN
FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH
COUNSEL. 


                    30.
Credit Verification. Each legal entity and individual obligated on this
Guaranty, whether as a Guarantor, a general partner of a Guarantor or in any
other capacity, hereby authorizes Administrative Agent and Lenders to check any
credit references, verify his/her employment and obtain credit reports from
credit reporting agencies of Administrative Agent’s and Lenders’ choice in
connection with any monitoring, collection or future transaction concerning the
Loan, including any modification, extension or renewal of the Loan. Also in
connection with any such monitoring, collection or future transaction, Administrative
Agent and Lender are hereby authorized to check credit references, verify
employment and obtain a third party credit report for the spouse of any married
person obligated on this Guaranty, if such person lives in a community property
state. 


                    31.
Special Representation and Warranty as to Leases. Guarantor hereby
represents and warrants to Administrative Agent and Lenders that all of the
statements contained in any and all estoppels regarding the leases from
Borrower to Lenders (the “Borrower Estoppels”) are true and correct as of the
date hereof, including, without limitation, that all tenants are not in default
in the payment of rent as of the date hereof, there is no default by landlord
or tenant under any of the leases at the Property as of the date hereof and no
amounts due by Borrower to any tenant at the Property (except as may be
expressly set forth in the Borrower Estoppels). 


                    32.
Prior Guaranty Restated. This Guaranty amends and restates the terms and
provisions of the Original Guaranty in its entirety. 


                    THE LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE 


20





PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES. 


[Remainder of page intentionally left blank]


21





                    IN
WITNESS WHEREOF, Guarantor has duly executed this Guaranty as an instrument under seal as of the date first written
above.


	
  
 	
  
 	
  
 
	
  
 	
 GUARANTOR:
 
	
  
 	
  
 	
  
 
	
  
 	
 ACADIA
 STRATEGIC OPPORTUNITY FUND III LLC, a Delaware limited liability company
 
	
  
 	
  
 
	
  
 	
 By
 	
 /s/ Robert
 Masters
 
	
  
 	
  
 	

 
 
	
  
 	
  
 	
 Robert
 Masters

 Senior Vice President
 
	
  
 	
  
 	
  
 
	
  
 	
 Address of
 Guarantor:
 
	
  
 	
  
 	
  
 
	
  
 	
 c/o Acadia
 Realty Trust

 1311 Mamaroneck Avenue, Suite 260

 White Plains, New York 10605
 



                    This
is to certify that this Guaranty was executed in my presence on the date hereof
by the party whose signature appears above in the capacity indicated.


	
  
 	
  
 	
  
 
	
  
 	
  
 	
 /s/ Debra
 Leibler Jones
 
	
  
 	
  
 	

 
 
	
 My
 Commission Expires:
 	
  
 	
 Notary
 Public
 
	
  
 	
  
 	
  
 
	

 
 	
  
 	
 Debra
 Leibler Jones

 No. 01LE6005994

 Qualified in Dutchess County

 Commission Expires: April 20, 2014
 






	
  
 	
  
 
	
 Address of
 Lender:
 	
  
 
	
  
 	
  
 
	
 Bank of
 America, N.A.
 	
  
 
	
 One Bryant
 Park, 35th Floor
 	
  
 
	
 New York,
 New York 10036
 	
  
 
	
 Attention:
        Mr. Gregory Egli
 	
  
 
	
 Telefax:
           212-293-8197
 	
  
 
	
  
 	
  
 
	
 Administrative
 Agent hereby agrees to paragraph 32 of this Guaranty.
 	
  
 
	
  
 	
  
 
	
 BANK OF
 AMERICA, N.A., as Administrative Agent
 	
  
 






	
  
 	
  
 	
  
 
	
 By
 	
 /s/ Gregory
 Egli
 	
  
 
	
  
 	

 
 	
  
 
	
  
 	
 Gregory Egli
 	
  
 
	
  
 	
 Senior Vice
 President