Exhibit 10.18


CONSOLIDATED, AMENDED AND RESTATED


TERM LOAN AGREEMENT


among


ACADIA-PA EAST FORDHAM ACQUISITIONS, LLC, 

a Delaware limited liability company 

as Lead Borrower,


ACADIA-PA EAST FORDHAM ACQUISITIONS, LLC, 

a Delaware limited liability company 

and 

FORDHAM PLACE OFFICE LLC 

a Delaware limited liability company 

as Borrower,


The LENDERS Party Hereto, 

as Lenders


and


EUROHYPO AG, NEW YORK BRANCH


as Administrative Agent


Date: As of November ___, 2009





TABLE OF CONTENTS


	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 Page No.

 
	
  

 	
  

 	
  

 	

 


 
	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE 1
 CERTAIN DEFINITIONS

 	
  

 	
 2

 
	
  

 	
  

 	
  

 	
  

 
	
 Section 1.1

 	
 Certain
 Definitions

 	
  

 	
 2

 
	
 Section 1.2

 	
 Types of
 Loans

 	
  

 	
 25

 
	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE 2
 LOAN TERMS

 	
  

 	
 25

 
	
  

 	
  

 	
  

 	
  

 
	
 Section 2.1

 	
 The
 Commitments, Loans and Notes

 	
  

 	
 25

 
	
 Section 2.2

 	
 Conversions
 or Continuations of Loans

 	
  

 	
 26

 
	
 Section 2.3

 	
 Interest
 Rate; Late Charge

 	
  

 	
 26

 
	
 Section 2.4

 	
 Terms of
 Payment

 	
  

 	
 27

 
	
 Section 2.5

 	
 Extension of
 Maturity Date

 	
  

 	
 29

 
	
 Section 2.6

 	
 Reserved

 	
  

 	
 30

 
	
 Section 2.7

 	
 Cash
 Management

 	
  

 	
 30

 
	
 Section 2.8

 	
 Payments;
 Pro Rata Treatment; Etc

 	
  

 	
 31

 
	
 Section 2.9

 	
 Yield
 Protection; Etc

 	
  

 	
 34

 
	
 Section 2.10

 	
 Administrative
 Fee

 	
  

 	
 40

 
	
 Section 2.11

 	
 Exit Fee

 	
  

 	
 40

 
	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE 3
 INSURANCE, CONDEMNATION, AND IMPOUNDS

 	
  

 	
 40

 
	
  

 	
  

 	
  

 	
  

 
	
 Section 3.1

 	
 Insurance

 	
  

 	
 40

 
	
 Section 3.2

 	
 Use and
 Application of Net Proceeds

 	
  

 	
 45

 
	
 Section 3.3

 	
 Casualty and
 Condemnation

 	
  

 	
 50

 
	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE 4
 RESERVES; COLLATERAL LETTERS OF CREDIT

 	
  

 	
 51

 
	
  

 	
  

 	
  

 	
  

 
	
 Section 4.1

 	
 Real Estate
 Tax and Insurance Reserve Fund

 	
  

 	
 51

 
	
 Section 4.2

 	
 Tenant
 Improvement/Leasing Reserve Letter of Credit

 	
  

 	
 52

 
	
 Section 4.3

 	
 Reserved

 	
  

 	
 53

 
	
 Section 4.4

 	
 Reserve
 Funds and Security Accounts Generally

 	
  

 	
 53

 
	
 Section 4.5

 	
 Collateral
 Letters of Credit

 	
  

 	
 54

 
	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE 5
 ENVIRONMENTAL MATTERS

 	
  

 	
 56

 
	
  

 	
  

 	
  

 	
  

 
	
 Section 5.1

 	
 Certain
 Definitions

 	
  

 	
 56

 
	
 Section 5.2

 	
 Representations
 and Warranties on Environmental Matters

 	
  

 	
 57

 
	
 Section 5.3

 	
 Covenants on
 Environmental Matters

 	
  

 	
 57

 
	
 Section 5.4

 	
 Allocation
 of Risks and Indemnity

 	
  

 	
 58

 
	
 Section 5.5

 	
 No Waiver

 	
  

 	
 59

 
	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE 6
 LEASING MATTERS

 	
  

 	
 59

 
	
  

 	
  

 	
  

 	
  

 
	
 Section 6.1

 	
 Representations
 and Warranties on Leases

 	
  

 	
 59

 
	
 Section 6.2

 	
 Standard
 Lease Form; Approval Rights

 	
  

 	
 60

 
	
 Section 6.3

 	
 Covenants

 	
  

 	
 60

 
	
 Section 6.4

 	
 Tenant
 Estoppels

 	
  

 	
 61

 


i









	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE 7
 REPRESENTATIONS AND WARRANTIES

 	
  

 	
 61

 
	
  

 	
  

 	
  

 
	
 Section 7.1

 	
 Organization
 and Power

 	
  

 	
 61

 
	
 Section 7.2

 	
 Validity of
 Loan Documents

 	
  

 	
 61

 
	
 Section 7.3

 	
 Liabilities;
 Litigation

 	
  

 	
 61

 
	
 Section 7.4

 	
 Taxes and
 Assessments

 	
  

 	
 62

 
	
 Section 7.5

 	
 Other
 Agreements; Defaults

 	
  

 	
 62

 
	
 Section 7.6

 	
 Compliance
 with Law

 	
  

 	
 62

 
	
 Section 7.7

 	
 Location of
 Borrower

 	
  

 	
 62

 
	
 Section 7.8

 	
 ERISA

 	
  

 	
 62

 
	
 Section 7.9

 	
 Margin Stock

 	
  

 	
 62

 
	
 Section 7.10

 	
 Tax Filings

 	
  

 	
 62

 
	
 Section 7.11

 	
 Solvency

 	
  

 	
 63

 
	
 Section 7.12

 	
 Full and
 Accurate Disclosure

 	
  

 	
 63

 
	
 Section 7.13

 	
 Single
 Purpose Entity

 	
  

 	
 63

 
	
 Section 7.14

 	
 Property
 Management Agreement

 	
  

 	
 63

 
	
 Section 7.15

 	
 No Conflicts

 	
  

 	
 63

 
	
 Section 7.16

 	
 Title

 	
  

 	
 64

 
	
 Section 7.17

 	
 Use of
 Project

 	
  

 	
 64

 
	
 Section 7.18

 	
 Flood Zone

 	
  

 	
 64

 
	
 Section 7.19

 	
 Insurance

 	
  

 	
 64

 
	
 Section 7.20

 	
 Certificate
 of Occupancy; Licenses

 	
  

 	
 64

 
	
 Section 7.21

 	
 Physical
 Condition

 	
  

 	
 64

 
	
 Section 7.22

 	
 Boundaries

 	
  

 	
 65

 
	
 Section 7.23

 	
 Separate
 Lots

 	
  

 	
 65

 
	
 Section 7.24

 	
 Survey

 	
  

 	
 65

 
	
 Section 7.25

 	
 Filing and
 Recording Taxes

 	
  

 	
 65

 
	
 Section 7.26

 	
 Investment
 Company Act

 	
  

 	
 65

 
	
 Section 7.27

 	
 Foreign
 Assets Control Regulations, Etc

 	
  

 	
 65

 
	
 Section 7.28

 	
 Organizational
 Structure

 	
  

 	
 66

 
	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE 8
 FINANCIAL REPORTING

 	
  

 	
 66

 
	
  

 	
  

 	
  

 	
  

 
	
 Section 8.1

 	
 Financial
 Statements

 	
  

 	
 66

 
	
 Section 8.2

 	
 Accounting
 Principles

 	
  

 	
 67

 
	
 Section 8.3

 	
 Other
 Information

 	
  

 	
 67

 
	
 Section 8.4

 	
 Annual
 Budget

 	
  

 	
 67

 
	
 Section 8.5

 	
 Audits

 	
  

 	
 67

 
	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE 9
 COVENANTS

 	
  

 	
 68

 
	
  

 	
  

 	
  

 	
  

 
	
 Section 9.1

 	
 Due on Sale
 and Encumbrance; Transfers of Interests

 	
  

 	
 68

 
	
 Section 9.2

 	
 Taxes;
 Charges

 	
  

 	
 68

 
	
 Section 9.3

 	
 Control; Management

 	
  

 	
 69

 
	
 Section 9.4

 	
 Operation;
 Maintenance; Inspection

 	
  

 	
 69

 
	
 Section 9.5

 	
 Taxes on
 Security

 	
  

 	
 69

 
	
 Section 9.6

 	
 Legal
 Existence; Name, Etc

 	
  

 	
 70

 
	
 Section 9.7

 	
 Affiliate
 Transactions

 	
  

 	
 70

 
	
 Section 9.8

 	
 Limitation
 on Other Debt

 	
  

 	
 70

 


ii









	
  

 	
  

 	
  

 	
  

 
	
 Section 9.9

 	
 Further
 Assurances

 	
  

 	
 70

 
	
 Section 9.10

 	
 Loan
 Certificates

 	
  

 	
 71

 
	
 Section 9.11

 	
 Notice of
 Certain Events

 	
  

 	
 71

 
	
 Section 9.12

 	
 Indemnification

 	
  

 	
 71

 
	
 Section 9.13

 	
 Payment for
 Labor and Materials

 	
  

 	
 71

 
	
 Section 9.14

 	
 Alterations

 	
  

 	
 72

 
	
 Section 9.15

 	
 Hedge
 Agreements

 	
  

 	
 72

 
	
 Section 9.16

 	
 Certain
 Financial Covenants

 	
  

 	
 74

 
	
 Section 9.17

 	
 Handicapped
 Access

 	
  

 	
 75

 
	
 Section 9.18

 	
 Zoning

 	
  

 	
 75

 
	
 Section 9.19

 	
 ERISA

 	
  

 	
 76

 
	
 Section 9.20

 	
 Books and
 Records

 	
  

 	
 76

 
	
 Section 9.21

 	
 Foreign
 Assets Control Regulations

 	
  

 	
 76

 
	
 Section 9.22

 	
 Appraisals

 	
  

 	
 76

 
	
 Section 9.23

 	
 Covenants
 Regarding the Condominium Declaration

 	
  

 	
 76

 
	
 Section 9.24

 	
 Industrial
 and Commercial Incentive Program

 	
  

 	
 79

 
	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE 10
 EVENTS OF DEFAULT

 	
  

 	
 80

 
	
  

 	
  

 	
  

 	
  

 
	
 Section 10.1

 	
 Payments

 	
  

 	
 80

 
	
 Section 10.2

 	
 Insurance

 	
  

 	
 80

 
	
 Section 10.3

 	
 Single
 Purpose Entity

 	
  

 	
 80

 
	
 Section 10.4

 	
 Taxes

 	
  

 	
 80

 
	
 Section 10.5

 	
 Sale,
 Encumbrance, Etc

 	
  

 	
 80

 
	
 Section 10.6

 	
 Representations
 and Warranties

 	
  

 	
 80

 
	
 Section 10.7

 	
 Other
 Encumbrances

 	
  

 	
 80

 
	
 Section 10.8

 	
 Various
 Covenants

 	
  

 	
 80

 
	
 Section 10.9

 	
 Reserved

 	
  

 	
 80

 
	
 Section
 10.10

 	
 Financial
 Covenants

 	
  

 	
 81

 
	
 Section
 10.11

 	
 Involuntary
 Bankruptcy or Other Proceeding

 	
  

 	
 81

 
	
 Section
 10.12

 	
 Voluntary
 Petitions, Etc

 	
  

 	
 81

 
	
 Section
 10.13

 	
 Indebtedness

 	
  

 	
 81

 
	
 Section
 10.14

 	
 Dissolution

 	
  

 	
 81

 
	
 Section
 10.15

 	
 Judgments

 	
  

 	
 81

 
	
 Section
 10.16

 	
 Security

 	
  

 	
 82

 
	
 Section
 10.17

 	
 Guarantor
 Documents

 	
  

 	
 82

 
	
 Section
 10.18

 	
 Security
 Accounts

 	
  

 	
 82

 
	
 Section
 10.19

 	
 Reserved

 	
  

 	
 82

 
	
 Section
 10.20

 	
 Covenants

 	
  

 	
 82

 
	
 Section
 10.21

 	
 Co-Borrower
 Documents

 	
  

 	
 82

 
	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE 11
 REMEDIES

 	
  

 	
 83

 
	
  

 	
  

 	
  

 	
  

 
	
 Section 11.1

 	
 Remedies -
 Insolvency Events

 	
  

 	
 83

 
	
 Section 11.2

 	
 Remedies -
 Other Events

 	
  

 	
 83

 
	
 Section 11.3

 	
 Administrative
 Agent’s Right to Perform the Obligations

 	
  

 	
 83

 
	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE 12
 MISCELLANEOUS

 	
  

 	
 84

 
	
  

 	
  

 	
  

 	
  

 
	
 Section 12.1

 	
 Notices

 	
  

 	
 84

 


iii









	
  

 	
  

 	
  

 	
  

 
	
 Section 12.2

 	
 Amendments,
 Waivers, Etc

 	
  

 	
 84

 
	
 Section 12.3

 	
 Limitation
 on Interest

 	
  

 	
 85

 
	
 Section 12.4

 	
 Invalid
 Provisions

 	
  

 	
 85

 
	
 Section 12.5

 	
 Reimbursement
 of Expenses

 	
  

 	
 85

 
	
 Section 12.6

 	
 Approvals;
 Third Parties; Conditions

 	
  

 	
 86

 
	
 Section 12.7

 	
 Lenders and
 Administrative Agent Not in Control; No Partnership

 	
  

 	
 86

 
	
 Section 12.8

 	
 Time of the
 Essence

 	
  

 	
 87

 
	
 Section 12.9

 	
 Successors
 and Assigns

 	
  

 	
 87

 
	
 Section
 12.10

 	
 Renewal,
 Extension or Rearrangement

 	
  

 	
 87

 
	
 Section
 12.11

 	
 Waivers

 	
  

 	
 87

 
	
 Section
 12.12

 	
 Cumulative
 Rights

 	
  

 	
 87

 
	
 Section
 12.13

 	
 Singular and
 Plural

 	
  

 	
 87

 
	
 Section
 12.14

 	
 Phrases

 	
  

 	
 88

 
	
 Section
 12.15

 	
 Exhibits and
 Schedules

 	
  

 	
 88

 
	
 Section
 12.16

 	
 Titles of
 Articles, Sections and Subsections

 	
  

 	
 88

 
	
 Section
 12.17

 	
 Promotional
 Material

 	
  

 	
 88

 
	
 Section
 12.18

 	
 Survival

 	
  

 	
 88

 
	
 Section
 12.19

 	
 WAIVER OF
 JURY TRIAL

 	
  

 	
 88

 
	
 Section
 12.20

 	
 Remedies of
 Borrower

 	
  

 	
 89

 
	
 Section
 12.21

 	
 Governing
 Law

 	
  

 	
 89

 
	
 Section
 12.22

 	
 Entire
 Agreement

 	
  

 	
 90

 
	
 Section
 12.23

 	
 Counterparts

 	
  

 	
 91

 
	
 Section
 12.24

 	
 Assignments
 and Participations

 	
  

 	
 91

 
	
 Section
 12.25

 	
 Brokers

 	
  

 	
 93

 
	
 Section
 12.26

 	
 Right of
 Set-off

 	
  

 	
 93

 
	
 Section
 12.27

 	
 Limitation
 on Liability of Administrative Agent’s and the Lenders’ Officers, Employees,
 etc

 	
  

 	
 94

 
	
 Section
 12.28

 	
 Cooperation
 with Syndication

 	
  

 	
 94

 
	
 Section
 12.29

 	
 Severance of
 Loan

 	
  

 	
 94

 
	
 Section
 12.30

 	
 Confidentiality

 	
  

 	
 95

 
	
 Section
 12.31

 	
 Designation
 of Lead Borrower as Agent for Borrower

 	
  

 	
 96

 
	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE 13
 RECOURSE LIABILITY

 	
  

 	
 96

 
	
  

 	
  

 	
  

 	
  

 
	
 Section 13.1

 	
 Recourse
 Liability

 	
  

 	
 96

 
	
 Section 13.2

 	
 No Waiver of
 Certain Rights

 	
  

 	
 98

 
	
  

 	
  

 	
  

 	
  

 
	
 ARTICLE 14
 ADMINISTRATIVE AGENT

 	
  

 	
 98

 
	
  

 	
  

 	
  

 	
  

 
	
 Section 14.1

 	
 Appointment,
 Powers and Immunities

 	
  

 	
 98

 
	
 Section 14.2

 	
 Reliance by
 Administrative Agent

 	
  

 	
 99

 
	
 Section 14.3

 	
 Defaults

 	
  

 	
 99

 
	
 Section 14.4

 	
 Rights as a
 Lender

 	
  

 	
 102

 
	
 Section 14.5

 	
 Standard of
 Care; Indemnification

 	
  

 	
 102

 
	
 Section 14.6

 	
 Non-Reliance
 on Administrative Agent and Other Lenders

 	
  

 	
 103

 
	
 Section 14.7

 	
 Failure to
 Act

 	
  

 	
 103

 
	
 Section 14.8

 	
 Successor
 Administrative Agent

 	
  

 	
 104

 
	
 Section 14.9

 	
 Consents
 under Loan Documents

 	
  

 	
 104

 
	
 Section
 14.10

 	
 Authorization

 	
  

 	
 106

 


iv









	
  

 	
  

 	
  

 	
  

 
	
 Section
 14.11

 	
 Administrative
 Fee

 	
  

 	
 106

 
	
 Section
 14.12

 	
 Defaulting
 Lenders

 	
  

 	
 106

 
	
 Section
 14.13

 	
 Liability of
 Administrative Agent

 	
  

 	
 108

 
	
 Section
 14.14

 	
 Transfer of
 Agency Function

 	
  

 	
 109

 
	
 Section
 14.15

 	
 Information
 for Lenders

 	
  

 	
 109

 
	
 Section
 14.16

 	
 Pfandbriefe

 	
  

 	
 109

 
	
 Section
 14.17

 	
 Restrictions
 on Transfers by Borrower

 	
  

 	
 109

 


v





LIST
OF EXHIBITS AND SCHEDULES


	
  

 	
  

 	
  

 
	
 EXHIBIT A

 	
 -

 	
 LEGAL
 DESCRIPTION OF PROJECT

 
	
 EXHIBIT B

 	
 -

 	
 INTENTIONALLY
 OMITTED

 
	
 EXHIBIT C

 	
 -

 	
 FORM OF NOTE

 
	
 EXHIBIT D

 	
 -

 	
 FORM OF
 ASSIGNMENT AND ACCEPTANCE

 
	
 EXHIBIT E

 	
 -

 	
 FORM OF
 HEDGE AGREEMENT PLEDGE

 
	
 EXHIBIT F

 	
 -

 	
 FORM OF
 NOTICE OF CONVERSIONS AND CONTINUATIONS

 
	
  

 	
  

 	
  

 
	
 SCHEDULE 1

 	
 -

 	
 COMMITMENTS

 
	
 SCHEDULE
 1.1(97)

 	
 -

 	
 LEASING
 GUIDELINES

 
	
 SCHEDULE 2.1

 	
 -

 	
 ADVANCE
 CONDITIONS

 
	
 SCHEDULE
 2.4(1)

 	
 -

 	
 WIRE
 INSTRUCTIONS

 
	
 SCHEDULE
 2.4(2)

 	
 -

 	
 AMORTIZATION
 SCHEDULE

 
	
 SCHEDULE
 7.28

 	
 -

 	
 ORGANIZATIONAL
 CHART

 


vi






LOAN AGREEMENT


          This
Loan Agreement (this “Agreement”)
is entered into as of November ___, 2009 among ACADIA-PA EAST FORDHAM ACQUISITIONS, LLC, a limited liability
company duly organized and validly existing under the laws of the State of
Delaware (“Lead Borrower”); FORDHAM PLACE OFFICE LLC, a limited
liability company duly organized and validly existing under the laws of the
State of Delaware (“Fordham Office”,
hereinafter, jointly and severally with Lead Borrower, and singly and
collectively, “Borrower”); each of
the lenders that is a signatory hereto identified under the caption “LENDERS” on the signature pages hereof and
each lender that becomes a “Lender” after the date hereof pursuant to Section
12.24(2) (individually, a “Lender”
and, collectively, the “Lenders”);
and EUROHYPO AG, NEW YORK BRANCH,
as administrative agent for the Lenders (in such capacity, together with its
successors in such capacity, “Administrative
Agent”).


R E C I T A L S


          A.
Lead Borrower and the Fordham Office are the fee owners of that certain tract
of land located in the County of Bronx, State of New York and being more fully
described in Exhibit A attached hereto (the “Land”). Lead Borrower is the fee owner
of the condominium unit designated as the “Retail Unit” in the Condominium
Declaration along with an undivided 70% interest in the Common Elements (as
defined in the Condominium Declaration) constituting a portion of the
improvements currently located on the Land, and Fordham Office is the fee owner
of the condominium unit designated as the “Office/Community Unit” in the
Condominium Declaration along with an undivided 30% interest in the Common
Elements (as defined in the Condominium Declaration) constituting a portion of
the improvements currently located on the Land. 


          B.
Borrower has entered into (a) that certain Acquisition and Project Loan
Agreement dated as of October 5, 2007 by and among Borrower, Lenders and
Administrative Agent pursuant to which the Lenders made a Loan to Borrower in
the original principal amount of $19,930,757.00 (the “Original Acquisition and Project Loan Agreement”);
and (b) that certain Building Loan Agreement dated as of October 5, 2007 by and
among Borrower, Lenders and Administrative Agent pursuant to which the Lenders
made a Loan to Borrower in the original principal amount of $75,339,243.00 (the
“Original Building Loan Agreement”
and, with the Original Acquisition and Project Loan Agreement, collectively,
the “Original Loan Agreement”).


          C.
Pursuant to the Original Loan Agreement, the Lenders have made advances of the
loans for the purposes described therein in the amount of $86,061,835.70 and
Borrower will, as of the Closing Date, prepay the loan such that the
outstanding principal balance as of the Closing Date will be $86,000,000.00. 


          D.
Borrower has represented to the Lenders that the Borrower has completed
construction of the Improvements (as defined in the Original Acquisition and
Project Loan Agreement) and requested that the Lenders amend, reduce and
restate and consolidate the Original Loan Agreement to, among other things,
extend the maturity date and reflect that no 


1





further
amounts will be advanced under the Original Loan Agreement, and the Lenders
have indicated their willingness to so amend and restate and consolidate the
Original Loan Agreement, on the terms and subject to the conditions set forth
herein. 


          NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree that the Original
Acquisition and Project Loan Agreement and the Original Building Loan Agreement
are hereby amended, restated and consolidated in their entirety as follows: 


ARTICLE 1


CERTAIN DEFINITIONS


          Section 1.1 Certain Definitions. As
used herein, the following terms have the meanings indicated: 


                    (1)
“Additional Cash Collateral Account”
has the meaning assigned to such term in the Cash Management Agreement. 


                    (2)
“Additional Costs” has the
meaning assigned to such term in Section 2.9(1)(a). 


                    (3)
“Additional Interest” means
any and all amounts which may become due and payable by Borrower in accordance
with the terms and provisions of any Hedge Agreement provided by a Eurohypo
Counterparty which is secured by the Mortgage in accordance with Section
9.15 which amounts shall be evidenced by and payable pursuant to the Notes
in favor of Eurohypo and/or such Affiliate; provided, however,
that Additional Interest shall not include any amounts which may become due and
payable pursuant to any Hedge Agreement which is not secured by the Mortgage. 


                    (4)
“Adjusted LIBOR Rate”
means, for any Interest Period for any LIBOR-based Loan, a rate per annum
(rounded upwards to the nearest 1/32 of 1%) determined by Administrative Agent
to be equal to the LIBOR Rate for such Interest Period divided by 1 minus the
Reserve Requirement (if any) for such Interest Period. 


                    (5)
“Adjusted Operating Expenses”
means Operating Expenses as determined and adjusted by Administrative Agent in
accordance with its then current audit policies and procedures. 


                    (6)
“Adjusted Operating Revenues”
means Operating Revenues as determined and adjusted by Administrative Agent in
accordance with its then current audit policies and procedures. 


                    (7)
“Administrative Fee” means
the administrative fee agreed to by Borrower and Administrative Agent pursuant
to the Fee Letter. 


2





                    (8)
“Advance Date” has the
meaning assigned to such term in Section 2.8(6). 


                    (9)
“Advanced Amount” has the
meaning assigned to such term in Section 14.12(2). 


                    (10)
“Affiliate” means with
respect to any Person, another Person that directly or indirectly controls, or
is under common control with, or is controlled by, such Person and, if such
Person is an individual, any member of the immediate family (including parents,
spouse, children and siblings) of such individual and any trust whose principal
beneficiary is such individual or one or more members of such immediate family
and any Person who is controlled by any such member or trust. As used in this
definition, “control” (including, with its correlative meanings, “controlled
by” and “under common control with”) shall mean possession, directly or
indirectly, of power to direct or cause the direction of management or policies
(whether through ownership of securities or partnership or other ownership
interests, by contract or otherwise), provided that, in any event, any Person
that owns directly or indirectly securities having 10% or more of the voting
power for the election of directors or other governing body of a corporation or
10% or more of the partnership, membership or other ownership interests of any
other Person (other than as a limited partner of such other Person) will be
deemed to control such corporation or other Person. Notwithstanding the
foregoing, no individual shall be an Affiliate solely by reason of his or her
being a director, officer, trustee or employee of Borrower.  


                    (11)
“Agreement” means this Loan
Agreement, as the same may be modified, amended and/or supplemented and in
effect from time to time. 


                    (12)
“Anti-Terrorism Order”
means Executive Order No. 13,224, 66 Fed. Reg. 49,079 (2001), issued by the
President of the United States of America (Executive Order Blocking Property
and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or
Support Terrorism). 


                    (13)
“Applicable Lending Office”
means, for each Lender and for each Type of Loan, the “Lending Office” of such
Lender (or of an Affiliate of such Lender) designated for such Type of Loan on
the respective signature pages hereof or such other office of such Lender (or
of an Affiliate of such Lender) as such Lender may from time to time specify to
Administrative Agent and Borrower as the office by which its loans of such Type
are to be made and maintained. 


                    (14)
“Applicable Margin” means
(a) for Base Rate Loans, 1.50% per annum; and (b) for LIBOR-based Loans, 3.50%
per annum. 


                    (15)
“Appraisal” means an
appraisal of the Project prepared by an appraiser satisfactory to
Administrative Agent, which appraisal must also (a) satisfy the requirements of
Title XI of the Federal Institution Reform, Recovery and Enforcement Act of
1989 and the regulations promulgated thereunder (including the appraiser with
respect thereto) and (b) be otherwise in form and substance satisfactory to
Administrative Agent. 


                    (16)
“Approved Fund” means any
Person (other than a natural person) that is engaged in making, purchasing,
holding or investing in bank loans and similar extensions of credit in the
ordinary course of its business and that is administered or managed by (a) a
Lender, 


3





(b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender. 


                    (17)
“Arranger” means Eurohypo. 


                    (18)
“Assignment and Acceptance”
means an Assignment and Acceptance, duly executed by the parties thereto, in
substantially the form of Exhibit D hereto and consented to by
Administrative Agent in accordance with Section 12.24(2). 


                    (19)
“Award” means any
compensation paid by any Governmental Authority in connection with a
Condemnation in respect of all or any part of the Project. 


                    (20)
“Bankruptcy Party” has the
meaning assigned to such term in Section 10.8. 


                    (21)
“Base Rate” means, for any
day, a rate per annum equal to the highest of (a) the Federal Funds Rate for
such day plus 1/2 of 1%, (b) the Prime Rate for such day or (c) the LIBOR Rate
plus 1.50%. Each change in any interest rate provided for herein based upon the
Base Rate resulting from a change in the Base Rate shall take effect at the
time of such change in the Base Rate. 


                    (22)
“Base Rate Loans” means
Loans that bear interest at rates based upon the Base Rate. 


                    (23)
“Basel II Accord” means the
proposals for risk-based capital framework described by the Basel Committee on
Banking Regulations and Supervisory Practices in its paper entitled
“International Convergence of Capital Measurement and Capital Standards: a
Revised Framework – Comprehensive Version” dated June 2006, as amended,
modified and supplemented and in effect from time to time or any replacement
thereof. 


                    (24)
“Bifurcation” has the
meaning assigned to such term in Section 12.29(1). 


                    (25)
“Borrower” has the meaning
assigned to such term in the Preamble. With respect to the definition of
“Borrower”, except where the context otherwise provides, (i) any
representations contained herein of Borrower shall be applicable to each
Borrower, (ii) any affirmative covenants contained herein shall be deemed to be
covenants of each Borrower and shall require performance by all Borrowers,
(iii) any negative covenants contained herein shall be deemed to be covenants
of each Borrower, and shall be breached if any Borrower fails to comply
therewith, (iv) the occurrence of any Event of Default with respect to any
Borrower shall be deemed to be an Event of Default hereunder, and (v) any
Indebtedness and/or obligations of Borrower shall be deemed to include any
Indebtedness and/or obligations of the Borrowers, or any Indebtedness and/or
obligations of any one of them. 


                    (26)
“Borrower Party” means
Borrower, any Guarantor or Managing Member 


                    (27)
“Business Day” means (a)
any day other than a Saturday, a Sunday, or other day on which commercial banks
located in New York City are authorized or required by law to remain closed and
(b) in connection with a borrowing of, a payment or prepayment of 


4





 principal of or interest on, a Conversion of
or into, or an Interest Period for, a LIBOR-based Loan or a notice by Lead
Borrower with respect to any such borrowing, payment, prepayment or Conversion,
the term “Business Day” shall, in addition to the days excluded in subsection
(a) above, also exclude a day on which banks are not open for dealings in
Dollar deposits in the London interbank market. 


                    (28)
“Calculated Debt Service”
means, for any period, an amount equal to the outstanding principal balance of
the Loans as of the date of calculation multiplied by a loan constant of seven
percent (7.0%). 


                    (29)
“Cash Management Account”
has the meaning assigned to such term in the Cash Management Agreement. 


                    (30)
“Cash Management Agreement”
means that certain Cash Management and Security Agreement to be executed, dated
and delivered by Borrower, Administrative Agent (on behalf of the Lenders) and
the Depository Bank subsequent to the Closing Date, as the same may be
modified, amended and/or supplemented and in effect from time to time. 


                    (31)
“Casualty” has the meaning
specified in Section 3.3 hereof. 


                    (32)
“Casualty Consultant” has
the meaning assigned to such term in Section 3.2(2)(c). 


                    (33)
“Casualty Retainage” has
the meaning assigned to such term in Section 3.2(2)(d). 


                    (34)
“Casualty/Taking Account”
has the meaning assigned to such term in the Cash Management Agreement. 


                    (35)
“Change of Control” means
any transaction, transfer, admission, redemption, withdrawal, change in
organizational documents or structure, or otherwise, whether directly or
indirectly, as a result of which (a)(i) Sponsor, whether directly or
indirectly, owns less than 18% of the membership interests in and rights to
distributions from Borrower, or (ii) any Person other than Managing Member has
the responsibility for managing and administering the day-to day business and
affairs of Borrower or (iii) in any other respects, any Person other than
Sponsor directly or indirectly Controls Borrower, (b) (i) Sponsor no longer
directly or indirectly owns at least 18% of the membership interests in and
rights to distributions from the Managing Member, or (ii) Sponsor no longer
directly or indirectly has responsibility for managing and administering the
day-to day business and affairs of the Managing Member or (iii) in any other
respects, any Person other than Sponsor directly or indirectly Controls the
Managing Member, (c)(i) anyone other than Acadia Realty Trust, whether directly
or indirectly, owns less than 75% of the partnership interests in Sponsor, or
(ii) any Person other than Acadia Realty Trust has the responsibility for
managing and administering the day-to day business and affairs of Sponsor or
(iii) in any other respects, any Person other than Acadia Realty Trust directly
or indirectly Controls Sponsor, or (d) a change in the management control of
Acadia Realty Trust such that Kenneth F. Bernstein is no longer the Chief
Executive Officer of Acadia Realty Trust or Kenneth F. Bernstein fails to
devote a substantial amount of his business time and attention in any
consecutive six (6) month period to the affairs of Acadia Realty Trust;
provided, however, such 


5





occurrence
shall not be an Event of Default if within sixty (60) days of the occurrence
thereof the Administrative Agent approves, in the exercise of its reasonable
judgment, the replacement or successor management of Acadia Realty Trust. As
used in this definition, “Control”
of one Person (the “controlled Person”) by another Person (the “controlling Person”) shall mean the
possession, directly or indirectly, by the controlling Person of the power or
ability to direct or cause the direction of the management or policies of the
controlled Person, whether through the ability to exercise voting power, by
contract or otherwise (“Controlled”
and “Controlling” each have
the meanings correlative thereto). 


                    (36)
“Clearing Account” means an
account with the Clearing Bank into which Borrower and Property Manager shall
deposit, or cause to be deposited, all rents and other revenue from the
Premises, and, upon the effectiveness of the Cash Management Agreement, shall
have the meaning assigned to such term in the Cash Management Agreement. 


                    (37)
“Clearing Bank” means Bank
of America, N.A. and, upon the effectiveness of the Cash Management Agreement,
shall have the meaning assigned to such term in the Cash Management Agreement. 


                    (38)
“Closing Date” means the
date of this Agreement. 


                    (39)
“Co-Borrower Documents”
means collectively, the Contribution Agreement, the Co-Borrower Guaranty
(Acquisitions) and the Co-Borrower Guaranty (Office). 


                    (40)
“Co-Borrower Guaranty (Acquisitions)”
means the Co-Borrower Guaranty by Lead Borrower in favor of Administrative
Agent on the Closing Date, as the same may be modified, supplemented or amended
from time to time. 


                    (41)
“Co-Borrower Guaranty (Office)”
means the Co-Borrower Guaranty by Fordham Office in favor of Administrative
Agent on the Closing Date, as the same may be modified, supplemented or amended
from time to time. 


                    (42)
“Collateral Letter of Credit”
means a clean, irrevocable and unconditional standby letter of credit that is
(a) issued for the account of an applicant other than Borrower, (b) issued in
favor of Administrative Agent (on behalf of the Lenders) in the amount of any
cash required pursuant to the terms of this Agreement or any other Loan
Document pursuant to which it is being issued, (c) issued by an issuer having a
paying office in the City of New York (or, with respect to Bank of America,
N.A. only, such other office as is acceptable to Administrative Agent in its
reasonable discretion) and having a rating with respect thereto of “AA” or
better by S&P (or any equivalent rating from Moody’s) or such other issuer
as shall be approved by Administrative Agent in its sole and absolute
discretion (Bank of America, N.A. is hereby approved by Administrative Agent,
provided that the letter of credit is in form and substance acceptable to
Administrative Agent in its reasonable discretion), (d) drawable, in whole or
in part from time to time, by Administrative Agent upon the presentment to the
issuer of a clean sight-draft demanding such payment, (e) an “evergreen” letter
of credit that initially has an expiration date of at least one (1) year from
the date of deposit and is automatically renewed from year to year or one which
does not expire until at least thirty (30) Business Days 


6





after the
Maturity Date, and (f) freely assignable upon presentation of customary
documents by Administrative Agent at no cost and expense to Administrative
Agent. 


                    (43)
“Commitment” means, as to
each Lender, the obligation of such Lender to make a Loan in a principal amount
up to but not exceeding the amount set opposite the name of such Lender on Schedule
1 under the caption “Commitment” or, in the case of a Person that becomes a
Lender pursuant to an assignment permitted under Section 12.24(2), as
specified in the respective instrument of assignment pursuant to which such
assignment is affected. The original aggregate principal amount of the
Commitments is $86,000,000.00. 


                    (44)
“Condemnation” means a
temporary or permanent taking by any Governmental Authority as the result or in
lieu or in anticipation of the exercise of the right of condemnation or eminent
domain, of all or any part of the Project, or any interest therein or right
accruing thereto, including any right of access thereto or any change of grade
affecting the Project or any part thereof. 


                    (45)
“Condemnation Proceeds” has
the meaning assigned to such term in Section 3.2(2). 


                    (46)
“Condominium” means that
certain condominium established pursuant to the Condominium Declaration. 


                    (47)
“Condominium Act” means
Article 9-B of the Real Property Law of the State of New York (§ 339-d et
seq.), and all amendments, modifications or replacements thereof or
regulations with respect thereto, now or hereafter enacted or promulgated. 


                    (48)
“Condominium Declaration”
means that certain Condominium Declaration filed with the Attorney General’s
Office of the State of New York and approved by Administrative Agent prior to
the Closing Date for the purpose of creating the Condominium. 


                    (49)
“Condominium Documents”
means the Condominium Declaration, the by-laws of any owner’s association to be
established pursuant to the Condominium Declaration to govern the affairs of
the Condominium, and any other document, instrument or agreement creating,
governing or affecting the Condominium. 


                    (50)
“Continue” “Continuation” and “Continued” refer to the continuation
pursuant to Section 2.2 of (a) a LIBOR-based Loan from one Interest
Period to the next Interest Period or (b) a Base Rate Loan at the Base Rate. 


                    (51)
“Contribution Agreement”
means the Indemnity, Subrogation and Contribution Agreement among Lead
Borrower, Fordham Office and Administrative Agent dated as of October 5, 2007,
as the same may be modified, supplemented or amended from time to time. 


                    (52)
“Convert” “Conversion” and “Converted” refer to a conversion
pursuant to the terms of this Agreement of one Type of Loans into another Type
of Loans, which may be accompanied by the transfer by a Lender (at its sole and
absolute discretion) of a Loan from one Applicable Lending Office to another. 


7





                    (53)
“Debt” means, for any
Person, without duplication: (a) all indebtedness of such Person for borrowed
money, for amounts drawn under a letter of credit, or for the deferred purchase
price of property for which such Person or its assets is liable, (b) all
unfunded amounts under a loan agreement, letter of credit, or other credit
facility for which such Person would be liable, if such amounts were advanced
under the credit facility, (c) all amounts required to be paid by such Person
as a guaranteed payment to partners, members (or other equity holders) or a
preferred or special dividend, including any mandatory redemption of shares or
interests, (d) all indebtedness guaranteed by such Person, directly or
indirectly, (e) all obligations under leases that constitute capital leases for
which such Person is liable, and (f) all obligations of such Person under
interest rate swaps, caps, floors, collars and other interest hedge agreements,
in each case whether such Person is liable contingently or otherwise, as
obligor, guarantor or otherwise, or in respect of which obligations such Person
otherwise assures a creditor against loss. 


                    (54)
“Debt Service” means, with
respect to the applicable period of time, the aggregate interest, fixed
principal and other payments due under the Loan for such period. 


                    (55)
“Debt Service Coverage Ratio”
means, (a) with respect to the period from the Closing Date through and
including the first anniversary of the Closing Date, for the period of time for
which calculation is being made, the ratio of Net Operating Income to Debt
Service, and (b) from the first day after the first anniversary of the Closing
Date through and including the original Maturity Date, for the period of time
for which calculation is being made, the ratio of Pro Forma Net Operating
Income to Calculated Debt Service. The Debt Service Coverage Ratio shall be as
determined by Administrative Agent based upon the most recent reports required
to have been submitted by Borrower under Section 8.1 (or, if no such
reports have been so submitted, such other information as Administrative Agent
shall determine in its sole and absolute discretion), which determination shall
be conclusive in the absence of manifest error. 


                    (56)
“Debt Yield” means, for the
period of calculation, the result of (x) Net Operating Income, divided by (y)
the outstanding principal balance of the Loans, expressed as a percentage. 


                    (57)
“Declarant” means Acadia-PA
East Fordham Acquisitions, LLC in its capacity as the declarant named in the
Condominium Declaration. 


                    (58)
“Default Rate” means a rate
per annum equal to 5% plus the Base Rate as in effect from time to time plus
the Applicable Margin for Base Rate Loans, provided that, with respect
to principal of a LIBOR-based Loan, the “Default Rate” shall be the greater of
(a) 5% plus the interest rate for such Loan as provided in Section
2.3(1)(b) and (b) the rate provided for above in this definition; provided,
however, that in no event shall the Default Rate exceed the maximum rate
allowed by applicable law. 


                    (59)
“Defaulting Lender” has the
meaning assigned to such term in Section 14.12(1). 


8







                    (60)
“Deposit Account Control Agreement”
means the Deposit Account Control Agreement among Borrower, Administrative
Agent and the Clearing Bank pertaining to the Clearing Account, as the same may
be modified, amended and/or supplemented and in effect from time to time. 


                    (61)
“Depository Bank” has the
meaning assigned to such term in the Cash Management Agreement. 


                    (62)
“Dollars” and “$” means lawful money of the United
States of America. 


                    (63)
“Eligible Assignee” means
any of (i) a commercial bank organized under the Laws of the United States, or
any State thereof, and having (x) total assets in excess of $1,000,000,000 and
(y) a combined capital and surplus of at least $250,000,000; (ii) a commercial
bank organized under the laws of any other country which is a member of the
Organization of Economic Cooperation and Development (“OECD”), or a political subdivision of
any such country, and having (x) total assets in excess of $1,000,000,000 and
(y) a combined capital and surplus of at least $250,000,000, provided that such
bank is acting through a branch or agency located in the country in which it is
organized or another country which is also a member of OECD; (iii) a life
insurance company organized under the Laws of any State of the United States,
or organized under the Laws of any country and licensed as a life insurer by
any State within the United States and having admitted assets of at least
$1,000,000,000; (iv) a nationally recognized investment banking company or
other financial institution in the business of making loans, or an Affiliate
thereof (other than any Person which is directly or indirectly a Borrower Party
or directly or indirectly an Affiliate of any Borrower Party) organized under
the Laws of any State of the United States, and licensed or qualified to
conduct such business under the Laws of any such State and having (1) total
assets of at least $1,000,000,000 and (2) a net worth of at least $250,000,000;
(v) an Approved Fund; (vi) any Affiliate of Eurohypo, any other Person into
which, or with which, Eurohypo is merged, consolidated or reorganized, or which
is otherwise a successor to Eurohypo by operation of law, or which acquires all
or substantially all of the assets of Eurohypo, any other Person which is a
successor to the business operations of Eurohypo and engages in substantially
the same activities, or any Affiliate of any of the foregoing; or (vii) any
other Person reasonably acceptable to Borrower (to the extent Borrower’s
consent to an assignment is required for an assignment to a Person other than
those identified in clauses (i) through (vi) above, pursuant to Section
12.24(2), and provided that all other applicable conditions to such
assignment set forth in Section 12.24(2) have been satisfied, including
any applicable consent thereto to be delivered by Administrative Agent. 


                    (64)
“Environmental Claim” has
the meaning assigned to such term in Article 5. 


                    (65)
“Environmental Indemnity”
means that certain Environmental Indemnity
Agreement by Borrower and Guarantor in favor of Administrative Agent and each
of the Lenders, to be executed, dated and delivered to Administrative Agent (on
behalf of the Lenders) on October 5, 2007, as the same may be modified, amended
and/or supplemented and in effect from time to time. 


9





                    (66)
“Environmental Laws” has
the meaning assigned to such term in Article 5. 


                    (67)
“Environmental Liens” has
the meaning assigned to such term in Article 5. 


                    (68)
“Environmental Loss” has
the meaning assigned to such term in Article 5. 


                    (69)
“Eurohypo” means Eurohypo
AG, New York Branch. 


                    (70)
“Eurohypo Counterparty”
means Eurohypo and or (a) any Affiliate of Eurohypo, (b) any other Person into
which, or with which, Eurohypo is merged, consolidated or reorganized, or which
is otherwise a successor to Eurohypo by operation of law, or which acquires all
or substantially all of the assets of Eurohypo, (c) any other Person which is a
successor to the business operations of Eurohypo and engages in substantially
the same activities, or (d) any Affiliate of any of the Persons described in clauses
(b) and (c) of this definition. 


                    (71)
“Event of Default” has the
meaning assigned to such term in Article 10. 


                    (72)
“Exculpated Party” has the
meaning assigned to such term in Section 13.1. 


                    (73)
“Extension Period” has the
meaning assigned to such term in Section 2.5. 


                    (74)
“Extension Notice” has the
meaning assigned to such term in Section 2.5(1). 


                    (75)
“Federal Bankruptcy Code”
shall mean Title 11 of the United States Code entitled “Bankruptcy” as amended
from time to time, and any successor statutes and rules and regulations from
time to time promulgated thereunder, and any comparable foreign laws relating
to bankruptcy, insolvency or creditor’s rights. 


                    (76)
“Federal Funds Rate” means,
for any day, the rate per annum (rounded upwards to the nearest 1/32 of 1%)
equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published by the Federal Reserve Bank of New York
on the Business Day next succeeding such day, provided that (a) if the
day for which such rate is to be determined is not a Business Day, the Federal
Funds Rate for such day shall be such rate on such transactions on the
immediately preceding Business Day as so published on the next succeeding
Business Day and (b) if such rate is not so published for any Business Day, the
Federal Funds Rate for such Business Day shall be the average rate charged to
Eurohypo on such Business Day on such transactions as determined by
Administrative Agent, or such other commercial bank as selected by Administrative
Agent. 


10





                    (77)
“Fee Letter” means the
letter agreement, dated the date hereof, between Borrower and Administrative
Agent with respect to certain fees payable by Borrower in connection with the
Loans, as the same may be modified or amended from time to time. 


                    (78)
“Flood Insurance Acts” has
the meaning assigned to such term in Section 3.1(1)(g). 


                    (79)
“GAAP” means accounting
principles generally accepted in the United States of America. 


                    (80)
“Governmental Authority”
means any governmental department, commission, board, bureau, agency,
regulatory authority, instrumentality, judicial or administrative body,
federal, state or local, or foreign having jurisdiction over the matter or
matters in question. 


                    (81)
“Guarantor” means Acadia
Strategic Opportunity Fund II, LLC, a Delaware limited liability company. 


                    (82)
“Guarantor Documents” means
collectively, the Guaranty and the Environmental Indemnity. 


                    (83)
“Guaranty” means the
instruments of guaranty, if any, now or hereafter in effect from a Guarantor to
Administrative Agent (on behalf of the Lenders). 


                    (84)
“Hazardous Materials” has
the meaning assigned to such term in Article 5.


                    (85)
“Hedge Agreement” means any
swap/cap agreement between Borrower and one or more financial institutions
providing for the transfer or mitigation of interest risks either generally or
under specific contingencies, as the same may be modified, amended and/or
supplemented and in effect from time to time in accordance with Section 9.15;
provided, however, that any such agreement may only be secured by
the Liens and Security Documents securing the Loans, if, and only if, the
protection is provided by one or more Eurohypo Counterparties and otherwise
complies with Section 9.15. 


                    (86)
“Hedge Agreement Pledge”
means that certain Assignment, Pledge and Security Agreement substantially in
the form of Exhibit E attached hereto, to be executed, dated and
delivered by Borrower to Administrative Agent (on behalf of the Lenders) in
accordance with Section 9.15 and at any other time Borrower elects or is
required to enter into a Hedge Agreement, covering Borrower’s right, title and
interest in and to any such Hedge Agreement, as the same may be modified,
amended and/or supplemented and in effect from time to time.  


                    (87)
“Improvements” has the
meaning assigned to such term in the Mortgage. 


                    (88)
“Indebtedness” has the
meaning assigned to such term in the Mortgage. 


11





                    (89)
“Independent Manager”
means, in the case of a corporation, limited liability company or limited
partnership, a director, member or manager that is a natural person who has no
affiliation with any Borrower Party and who is approved by Administrative
Agent. 


                    (90)
“Insurance Premiums” has
the meaning assigned to such term in Section 3.1(2). 


                    (91)
“Insurance Proceeds Deficiency”
has the meaning assigned to such term in Section 3.2(2). 


                    (92)
“Interest Period” means,
with respect to any LIBOR-based Loan, each period commencing on the date such
LIBOR-based Loan is made or Converted from a Base Rate Loan or (in the event of
a Continuation) the last day of the immediately preceding Interest Period for
such Loan and ending on the numerically corresponding day in the first calendar
month thereafter; provided that (i) each Interest Period that commences
on the last Business Day of a calendar month (or on any day for which there is
no numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent calendar
month; (ii) each Interest Period that would otherwise end on a day that is not
a Business Day shall end on the next succeeding Business Day (or, if such next
succeeding Business Day falls in the next succeeding calendar month, on the
immediately preceding Business Day); (iii) no Interest Period shall have a
duration of less than one month and, if the Interest Period for any LIBOR-based
Loan would otherwise be a shorter period, such Loan shall bear interest at the
Base Rate plus the Applicable Margin for Base Rate Loans; (iv) in no event
shall any Interest Period extend beyond the Maturity Date; and (v) there may be
no more than one (1) Interest Period in respect of LIBOR based Loans
outstanding at any one time. 


                    (93)
“Interest Rate Hedge Period”
has the meaning assigned to such term in Section 9.15. 


                    (94)
“Interest Reserve Account”
has the meaning assigned to such term in the Cash Management Agreement. 


                    (95)
“Internal Revenue Code”
means the Internal Revenue Code of 1986, as amended. 


                    (96)
“Land” has the meaning
assigned to such term in the Recitals. 


                    (97)
“Leasing Guidelines” means
the Leasing Guidelines described in Schedule 1.1(97) attached hereto. 


                    (98)
“Lender” and “Lenders” have the respective meanings
assigned to such terms in the Preamble. 


                    (99)
“LIBOR Rate” means, for any
Interest Period for any LIBOR-based Loan, the greater of (a) 1.50% and (b) the
rate per annum appearing on Reuters Screen LIBOR01 (formerly operated as Page
3750 of the Dow Jones Market Service (Telerate)) (or on any successor or
substitute page of such Service, or any successor to or substitute for such
Service, providing rate quotations comparable to those currently provided on
such page of such Service, 


12





as determined
by Administrative Agent from time to time for purposes of providing quotations
of interest rates applicable to Dollar deposits in the London interbank market)
at approximately 11:00 a.m. London time on the date two (2) Business Days prior
to the first day of such Interest Period as the rate for the offering of Dollar
deposits having a term comparable to such Interest Period, provided that
if such rate does not appear on such page, or if such page shall cease to be
publicly available, or if the information contained on such page, in the
reasonable judgment of Administrative Agent shall cease accurately to reflect
the rate offered by leading banks in the London interbank market as reported by
any publicly available source of similar market data selected by Administrative
Agent, the LIBOR Rate for such Interest Period shall be determined from such
substitute financial reporting service as Administrative Agent in its
discretion shall determine. 


                    (100)
“LIBOR-based Loans” means
Loans that bear interest at rates based on rates referred to in the definition
of “LIBOR Rate.” 


                    (101)
“Licenses” has the meaning
assigned to such term in Section 7.20. 


                    (102)
“Lien” means any interest,
or claim thereof, in the Project securing an obligation owed to, or a claim by,
any Person other than the owner of the Project, whether such interest is based
on common law, statute or contract, including the lien or security interest
arising from a deed of trust, mortgage, assignment, encumbrance, pledge,
security agreement, conditional sale or trust receipt or a lease, consignment
or bailment for security purposes. The term “Lien” shall include reservations,
exceptions, encroachments, easements, rights of way, covenants, conditions,
restrictions, leases and other title exceptions and encumbrances affecting the
Project. 


                    (103)
“Loans” means the loans
made by the Lenders to Borrower under this Agreement and all other amounts
evidenced or secured by the Loan Documents. 


                    (104)
“Loan Documents” means: (a)
this Agreement, (b) the Notes, (c) the Guaranty, (d) any letter of credit
provided to Administrative Agent in connection with the Loan, (e) the Mortgage,
(f) the Subordination of Property Management Agreement, (g) the Environmental
Indemnity, (h) Hedge Agreement Pledge, (i) the Cash Management Agreement, (j)
Uniform Commercial Code financing statements, (k) the Co-Borrower Documents,
(l) such assignments of management agreements, contracts and other rights as
may be required under the Commitment or otherwise requested by Administrative
Agent, (m) all other documents evidencing, securing, governing or otherwise
pertaining to the Loans; provided, however, that a Hedge
Agreement entered into with any counterparty that is not a Eurohypo
Counterparty shall not be a Loan Document, and (n) all amendments,
modifications, renewals, substitutions and replacements of any of the foregoing.



                    (105)
“Loan To Value Ratio”
means, at any time, the ratio, expressed as a percentage, of (a)
$86,000,000.00, to (b) the “as is” value of the Project as determined by an
Appraisal satisfactory to Administrative Agent. 


                    (106)
“Loan Transactions” has the
meaning assigned to such term in Section 2.8(4). 


13





                    (107)
“Loan Year” means the
period between the date hereof and October 4, 2010 for the first Loan Year and
the period between each succeeding October 5 and October 4 until the Maturity
Date. 


                    (108)
“Low DSCR Account” has the
meaning assigned to such term in the Cash Management Agreement. 


                    (109)
“Low DSCR Release Event”
means, at any time after the occurrence of a Low DSCR Trigger Event, that (a)
the Debt Service Coverage Ratio shall, for two consecutive calendar or fiscal
quarters, be at or above: (i) with respect to the period from the Closing Date
through and including the first anniversary of the Closing Date, 1.40:1.00; and
(ii) from the first day after the first anniversary of the Closing Date through
and including the original Maturity Date, 1.30:1.00; or (b) in the event that
Borrower exercises the option to extend the term of the Loan pursuant to Section
2.5 hereof, the Pro Forma Debt Service Coverage Ratio shall, for two
consecutive calendar or fiscal quarters, be at or above 1.50:1.00.  


                    (110)
“Low DSCR Trigger Event”
means, at any time prior to the Maturity Date, that: (a) the Debt Service
Coverage Ratio for any calendar quarter is less than (i) with respect to the
period from the Closing Date through and including the first anniversary of the
Closing Date, 1.35:1.00; and (ii) from the first day after the first
anniversary of the Closing Date through and including the original Maturity
Date, 1.25:1.00; or (b) in the event that Borrower exercises the option to
extend the term of the Loan pursuant to Section 2.5 hereof, the Pro
Forma Debt Service Coverage Ratio for any calendar quarter during the Extension
Period is less than 1.45:1.00. 


                    (111)
“Low DSCR Trigger Period”
means the period of time after a Low DSCR Trigger Event until the occurrence of
a Low DSCR Release Event. 


                    (112)
“Major Lease” means any
lease that (a) accounts for five percent (5%) or more of the total gross rental
revenue of the Project and/or (b) is for 10,000 rentable square feet or more. 


                    (113)
“Majority Lenders” means
Lenders holding at least 662⁄3% of the aggregate outstanding principal amount of
the Loans or, if the Loans shall not have been made, at least 662⁄3% of the
Commitments. 


                    (114)
“Managing Member” means
Acadia – P/A Holding Company, LLC, a Delaware limited liability company, as
sole member under the organizational documents of Borrower and its successors
thereunder as managing member of Borrower as permitted under the Loan
Documents. 


                    (115)
“Material Adverse Effect”
means a material adverse effect, as unilaterally determined by Administrative
Agent, in its reasonable judgment and discretion, on (a) the Project or the
business, operations, financial condition, prospects, liabilities or
capitalization of Borrower, (b) the ability of Borrower to perform its obligations
under any of the Loan Documents to which it is a party, including the timely
payment of the principal of or interest on the Loans or other amounts payable
in connection therewith, (c) the ability of the Guarantor or any Borrower Party
to perform its obligations under any of the Loan Documents to 


14





which it is a
party, (d) the validity or enforceability of any of the Loan Documents or (e)
the rights and remedies of the Lenders and Administrative Agent under any of
the Loan Documents. 


                    (116)
“Maturity Date” means the
earlier of (a) October 4, 2011, as such date may extended by the Extension
Period, or (b) any earlier date on which all of the Loans are required to be
paid in full, by acceleration or otherwise, under this Agreement or any of the
other Loan Documents. 


                    (117)
“Mold” has the meaning
assigned to such term in Section 5.1(6). 


                    (118)
“Mortgage” means the
Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing
executed by Borrower in favor of Administrative Agent (on behalf of the
Lenders), covering the Project and any amendments, modifications, renewals,
substitutions, consolidations, severances and replacements thereof. 


                    (119)
Intentionally Omitted. 


                    (120)
Intentionally Omitted. 


                    (121)
“Net Cash Flow” means, for
any period, the amount by which Operating Revenues exceed the sum of (a)
Operating Expenses, (b) Debt Service, and (c) any actual payment into impounds,
escrows, or reserves required by Administrative Agent, except to the extent
included within the definition of Operating Expenses. 


                    (122)
“Net Operating Income”
means the amount by which Adjusted Operating Revenues exceed Adjusted Operating
Expenses. 


                    (123)
“Net Proceeds” has the
meaning assigned to such term in Section 3.2(2). 


                    (124)
“Net Proceeds Deficiency”
has the meaning assigned to such term in Section 3.2(2)(f). 


                    (125)
“Notes” means the four (4)
promissory notes of even date herewith as provided for in Section 2.1(4),
and in the Note Consolidation, Severance and Modification Agreement of even
date herewith between Administrative Agent, and all promissory notes delivered
in substitution or exchange therefor, in each case as the same may be
consolidated, replaced, severed, modified, amended or extended from time to
time. 


                    (126)
“Office Component” means
the portion of the Improvements belonging to Fordham Office consisting of a
14-story Class A office building containing approximately 151,685 square feet
of net leaseable space. 


                    (127)
“Operating Expenses” means
all reasonable and necessary expenses of operating the Project in the ordinary
course of business calculated in accordance with GAAP which are directly
associated with and fairly allocable to the Project for the applicable period,
including annualized ad valorem real estate taxes and assessments, capital
expenditures at an imputed rate of $0.10 per square foot on an annualized basis
of gross leasable area at the Project, annualized insurance premiums, regularly
scheduled tax impounds paid to Administrative Agent, 


15





maintenance
costs, management fees and costs in an amount equal to the greater of the
management fees and costs actually paid or an imputed rate of four percent (4%)
of Operating Revenues, accounting, legal, and other professional fees, fees
relating to environmental and Net Cash Flow and Net Operating Income audits,
and other expenses incurred by Administrative Agent and reimbursed by Borrower
under this Agreement and the other Loan Documents, deposits to any capital
replacement reserves required by Administrative Agent, wages, salaries, and
personnel expenses, but excluding Debt Service, capital expenditures, any of
the foregoing expenses which are paid from deposits to cash reserves previously
included as Operating Expenses, any payment or expense for which Borrower was
or is to be reimbursed from proceeds of the Loans or insurance or by any third
party, and any non-cash charges such as depreciation and amortization. Any
management fee or other expense payable to Borrower or to an Affiliate of
Borrower shall be included as an Operating Expense only with Administrative
Agent’s prior approval. Operating Expenses shall not include federal, state or
local income taxes or legal and other professional fees unrelated to the
operation of the Project. 


                    (128)
“Operating Revenues” means
all cash receipts of Borrower from operation of the Project or otherwise
arising in respect of the Project after the date hereof which are properly
allocable to the Project for the applicable period (subject to an underwritten
market vacancy rate of not less than 8%), including receipts from leases and
parking agreements, concession fees and charges and other miscellaneous
operating revenues, proceeds from rental or business interruption insurance,
withdrawals from cash reserves (except to the extent any operating expenses
paid therewith are excluded from Operating Expenses), in all cases, determined
in accordance with GAAP but without taking into account straight-lining of
rents and extraordinary revenues (including, but not limited to, lease
termination payments) and FAS 141R adjustments, but excluding (a) all rent and
other revenues received during the applicable period from tenants that, at any
time during the applicable period, are subject to a Bankruptcy Proceeding,
unless such Bankruptcy Proceeding has been closed, and the subject tenant has
not been discharged from its obligations under the subject lease and/or the
rental payments due and/or paid by such tenant to Borrower can not be disgorged
from Borrower, (b) rent and other revenues from tenants that have been in
default on the payment of rent under their respective leases for more than
thirty (30) days, (c) rent and other revenues from tenants under leases which
have remaining terms of less than twelve (12) months from the date of
calculation, (d) security deposits and earnest money deposits until they are
forfeited by the depositor, (e) advance rentals (i.e. more than thirty (30)
days in advance) until they are earned, (f) lump sum lease buy-out payments
made by tenants in connection with any surrender, cancellation or termination
of their lease, and (d) proceeds from a sale or other disposition. 


                    (129)
“Participant” has the
meaning assigned to such term in Section 12.24(3). 


                    (130)
“Payment Date” means the
first Business Day of each calendar month. 


                    (131)
“Payor” has the meaning
assigned to such term in Section 2.8(6). 


                    (132)
“Permitted Encumbrances”
has the meaning set forth in the Mortgage. 


                    (133)
“Permitted Transfer” shall
mean any of the following transfers, provided there is no Change of Control as
a result of such transfer: 


16






                              (a)
a transfer by devise or descent or by operation of law upon the death of a
member, partner or shareholder of Borrower or any Affiliate of Borrower, so
long as Lead Borrower delivers notice to Administrative Agent as soon as
practicable thereafter and that Borrower or such Affiliate is promptly
reconstituted, if applicable, following the death of such member partner or
shareholder; 


                              (b)
transfers for estate planning purposes of an individual’s interest in Borrower
or any Affiliate of Borrower to the spouse or any lineal descendant of such
individual, or to a trust for the benefit of any one or more of such
individual, spouse or lineal descendant, so long as Borrower or such Affiliate
is reconstituted, if required, following such transfer; 


                              (c)
the sale or pledge, in one or a series of transactions, of the stock, limited
partnership interests or non-managing membership interests (as the case may be)
in Borrower or an Affiliate of Borrower; provided, however, that no such
transfers shall result in any sale, transfer, conveyance, mortgage, pledge, or
assignment of the legal or beneficial ownership of the Project, and as a
condition to each such transfer, Administrative Agent shall receive no less
than thirty (30) days prior written notice of such proposed transfer; 


                              (d)
a transfer by P/A Associates, LLC (“P/A
Associates”) of 100% of its membership interest in Managing
Member to Acadia Strategic Opportunity Fund II, LLC (“Fund II”) or an Affiliate of Fund II;
and 


                              (e)
the sale, transfer, or issuance of stock in Acadia Realty Trust (the “Trust”), in the ordinary course of
business, provided such stock is listed on the NYSE or other nationally
recognized stock exchange. 


                    (134)
“Person” means any
individual, corporation, partnership, joint venture, association, joint stock
company, trust, trustee, estate, limited liability company, unincorporated organization,
real estate investment trust, government or any agency or political subdivision
thereof, or any other form of entity. 


                    (135)
“Policy” has the meaning
assigned to such term in Section 3.1(2). 


                    (136)
“Potential Default” means
the occurrence of any event or condition which, with the giving of notice, the
passage of time, or both, would constitute an Event of Default. 


                    (137)
“Prime Rate” means the rate
of interest from time to time announced by Eurohypo at its principal office as
its prime commercial lending rate, it being understood that such prime
commercial rate is a reference rate and does not necessarily represent the
lowest or best rate being charged by Eurohypo to any customer. 


                    (138)
“Prohibited Person” means
any Person: 


	
  

 	
  

 
	
  

 	
           (a)
 listed in the Annex to, or otherwise subject to the provisions of, the
 Executive Order No. 13224 on Terrorist Financing, effective September 24,
 2001, and relating to Blocking Property and Prohibiting Transactions With
 Persons Who Commit, Threaten to Commit, or Support Terrorism (the “Executive Order”); 

 


17









	
  

 	
  

 
	
  

 	
           (b)
 that is owned or controlled by, or acting for or on behalf of, any person or
 entity that is listed to the Annex to, or is otherwise subject to the
 provisions of, the Executive Order; 

 
	
  

 	
  

 
	
  

 	
           (c)
 with whom any Lender is prohibited from dealing or otherwise engaging in any
 transaction by any terrorism or money laundering law, including the Executive
 Order; 

 
	
  

 	
  

 
	
  

 	
           (d)
 who is known to Borrower to commit, threaten or conspire to commit or support
 “terrorism”, as defined in the Executive Order; 

 
	
  

 	
  

 
	
  

 	
           (e)
 that is named as a “specially designated national and blocked person” on the
 most current list published by the U.S. Treasury Department Office of Foreign
 Assets Control at its official website, http://www.treas.gov.ofac/t11sdn.pdf
 or at any replacement website or other replacement official publication of
 such list; or 

 
	
  

 	
  

 
	
  

 	
           (f)
 who is known to Borrower to be an Affiliate of or affiliated with a Person
 listed above. 

 



                    (139)
“Project” means that
certain mixed use retail/office building consisting of approximately 119,446
square feet of retail space and 151,685 square feet of office space, and all
related facilities, amenities, fixtures, and personal property owned by
Borrower and any improvements now or hereafter located on the real property
described in Exhibit A. 


                    (140)
“Project Amenities” means
those areas or elements of, easements over, interests in or licenses or rights
to use, those portions of the Project that are granted to Units in the
Condominium Declaration. 


                    (141)
“Property Management Agreement”
means that certain Property Management Agreement dated as of August 15, 2007
between Property Manager and Lead Borrower with respect to the management of
the Project by the Property Manager, together with any management agreements
entered into with future Property Managers in accordance with the terms of this
Agreement. 


                    (142)
“Property Manager” means
Acadia – P/A Management Services LLC, which is initially the manager of the
Project under the Property Management Agreement, together with any successor
property managers appointed for the Project in accordance with the terms of
this Agreement. 


                    (143)
“Pro Forma Debt Service Coverage Ratio”
means the ratio of: (a) Pro Forma Net Operating Income for the full calendar
quarter immediately preceding the date of calculation, to (b) the Calculated
Debt Service for the full calendar quarter immediately preceding the date of
calculation. The Pro Forma Debt Service Coverage Ratio shall be as determined
by Administrative Agent based upon the most recent reports required to have
been submitted by Borrower under Section 8.1 (or, if no such reports
have been so submitted, such other information as Administrative Agent shall
determine in its sole and absolute discretion), which determination shall be
conclusive in the absence of manifest error. 


18





                    
(144) “Pro Forma Net Operating Income”
means, for any period, the amount by which Pro Forma Operating Revenues exceed
Adjusted Operating Expenses. 


                    (145)
“Pro Forma Operating Revenues”
means, for any period, the sum of (a) Adjusted Operating Revenues and (b) pro
forma net effective rental income from tenants who have executed leases, but
have yet to commence paying rent for the applicable period; provided, however,
that the foregoing calculation shall exclude rent and other revenues from
tenants under leases which have remaining terms of less than nine (9) months
from the date of calculation. 


                    (146)
“Proportionate Share”
means, with respect to each Lender, initially the percentage set forth opposite
such Lender’s name on Schedule 1.1(146) attached hereto, as such
percentage may be modified from time to time pursuant to Assignment and
Acceptances and as recorded in Administrative Agent’s register of Lenders for
the Loan. 


                    (147)
“Proposed Lender” has the
meaning assigned to such term in Section 2.9(7). 


                    (148)
“Regulation D” means
Regulation D of the Board of Governors of the Federal Reserve System of the
United States of America (or any successor), as the same may be modified and
supplemented and in effect from time to time. 


                    (149)
“Regulatory Change” means,
with respect to any Lender, any change after the date hereof in Federal, state
or foreign law or regulations (including, without limitation, Regulation D) or
the adoption or making after such date of any interpretation, directive or
request applying to a class of banks including such Lender of or under any
Federal, state or foreign law or regulations (whether or not having the force
of law and whether or not failure to comply therewith would be unlawful) by any
court or governmental or monetary authority charged with the interpretation or
administration thereof. 


                    (150)
“Rejecting Lender” has the
meaning set forth in Section 9.1. 


                    (151)
“Related Entity” means, as
to any Person, (a) any Affiliate of such Person; (b) any other Person into
which, or with which, such Person is merged, consolidated or reorganized, or
which is otherwise a successor to such Person by operation of law, or which
acquires all or substantially all of the assets of such Person; (c) any other
Person which is a successor to the business operations of such Person
and engages in substantially the same activities; or (d) any Affiliate of the
Persons described in clauses (b) and (c) of this definition. 


                    (152)
“Replacement Lender” has
the meaning assigned to such term in Section 14.12(6). 


                    (153)
“Requesting Lender” has the
meaning assigned to such term in Section 2.9(7). 


                    (154)
“Required Payment” has the
meaning assigned to such term in Section 2.8(6). 


19





                    (155)
“Reserve Account Collateral”
has the meaning assigned to such term in Section 4.4(1). 


                    (156)
“Reserve Funds” means, the
Tax and Insurance Reserve Fund. 


                    (157)
“Reserve Requirement”
means, for any Interest Period for any LIBOR-based Loan, the average maximum
rate at which reserves (including, without limitation, any marginal,
supplemental or emergency reserves) are required to be maintained during such
Interest Period under Regulation D by member banks of the Federal Reserve
System in New York City with deposits exceeding $1,000,000,000 against
“Eurocurrency liabilities” (as such term is used in Regulation D). Without
limiting the effect of the foregoing, the Reserve Requirement shall include any
other reserves required to be maintained by such member banks by reason of any
Regulatory Change with respect to (i) any category of liabilities that includes
deposits by reference to which the LIBOR Rate for any Interest Period for any
LIBOR-based Loans is to be determined as provided in the definition of “LIBOR
Rate” or (ii) any category of extensions of credit or other assets that
includes LIBOR-based Loans. 


                    (158)
“Restoration” means the
repair and restoration of the Project after a Casualty or Condemnation as
nearly as possible to the condition the Project was in immediately prior to
such Casualty or Condemnation, with such alterations as may be approved by
Administrative Agent. 


                    (159)
“Retail Component” means
the portion of the Improvements belonging to the Lead Borrower consisting of
approximately 119,446 square feet of gross leasable retail area. 


                    (160)
“Security Accounts” means,
collectively, the Tax and Insurance Reserve Account, the Casualty/Taking
Account, the Additional Cash Collateral Account, the Cash Management Account,
the Low DSCR Account and the Reserve Funds. 


                    (161)
“Security Documents” means
collectively, the Mortgage, the Hedge Agreement Pledge, the Deposit Account
Control Agreement, the Cash Management Agreement and all Uniform Commercial
Code financing statements required by this Agreement, the Mortgage, the Hedge
Agreement Pledge, the Deposit Account Control Agreement or the Cash Management
Agreement to be filed with respect to the applicable security interests. 


                    (162)
“Single Purpose Entity”
means a corporation, limited partnership or limited liability company which at
all times on and after the date hereof, unless otherwise approved in writing by
Administrative Agent: 


	
  

 	
  

 
	
  

 	
           (a)
 is organized solely for the purpose of one of the following: (a) acquiring,
 developing, owning, holding, selling, leasing, transferring, exchanging,
 managing and operating the Project, entering into this Agreement, refinancing
 the Project in connection with a permitted repayment of the Loans, and
 transacting any and all lawful business that is incident, necessary and
 appropriate to accomplish the foregoing or (b) acting as the sole managing
 member of Borrower; 

 


20









	
  

 	
  

 
	
  

 	
           (b)
 is not engaged and will not engage in any business unrelated to (a) the
 acquisition, development, ownership, management or operation of the Project
 or (b) acting as the sole managing member of Borrower; 

 
	
  

 	
  

 
	
  

 	
           (c)
 does not have and will not have any assets other than those related to (a)
 the Project or (b) its membership interest in Borrower; 

 
	
  

 	
  

 
	
  

 	
           (d)
 has not engaged, sought or consented to and will not engage in, seek or
 consent to any dissolution, winding up, liquidation, consolidation, merger,
 sale of all or substantially all of its assets, transfer of partnership or
 membership interests (if such entity is a general partner in a limited
 partnership or a member in a limited liability company), or any amendment of
 its articles of incorporation, by-laws, limited partnership certificate, limited
 partnership agreement, articles of organization, certificate of formation or
 operating agreement (as applicable) with respect to the matters set forth in
 this definition; 

 
	
  

 	
  

 
	
  

 	
           (e)
 in the case of Borrower, has and will have, as its only managing member, the
 Managing Member, which shall be a limited liability company that is a Single
 Purpose Entity and has at least one (1) Independent Manager; 

 
	
  

 	
  

 
	
  

 	
           (f)
 if such entity is (i) a limited liability company, has articles of
 organization, a certificate of formation and/or an operating agreement, as
 applicable, (ii) a limited partnership, has a certificate of limited
 partnership and limited partnership agreement, or (ii) a corporation, has a
 certificate of incorporation or articles of incorporation, that in each case
 provide that such entity shall not, without the unanimous written consent of
 all of its partners or members (and, in the case of the Managing Member, its
 Independent Manager(s)): (a) dissolve, merge, liquidate or consolidate itself
 or any entity in which it has a direct or indirect legal or beneficial
 ownership interest; (b) sell all or substantially all of its assets or the
 assets of any other entity in which it has a direct or indirect legal or
 beneficial ownership interest; (c) engage in any other business activity or
 permit any entity in which it has a direct or indirect legal or beneficial
 ownership interest to engage in any other business activity, in each case
 except as permitted pursuant to the Loan Documents, (d) amend its organizational
 documents with respect to the matters set forth in this definition without
 the consent of Administrative Agent; and (e) file a bankruptcy or insolvency
 petition or otherwise institute insolvency proceedings with respect to itself
 or to any other entity in which it has a direct or indirect legal or
 beneficial ownership interest or is the direct or indirect general partner or
 manager; 

 
	
  

 	
  

 
	
  

 	
           (g)
 if such entity is a limited partnership, has as its only general partner a
 Single Purpose Entity; 

 
	
  

 	
  

 
	
  

 	
           (h)
 is and will pay its debts and liabilities (including, as applicable, shared
 personnel and overhead expenses) from its assets as the same shall become
 due, and is maintaining and will maintain adequate capital for the normal
 obligations reasonably foreseeable in a business of its size and character
 and in light of its contemplated business operations; 

 


21









	
  

 	
  

 
	
  

 	
           (i)
 has not failed and will not fail to correct any known misunderstanding
 regarding the separate identity of such entity; 

 
	
  

 	
  

 
	
  

 	
           (j)
 has maintained and will maintain its accounts, books and records separate
 from any other Person and will file its own tax returns, except to the extent
 that it is required or permitted to file consolidated tax returns by law; 

 
	
  

 	
  

 
	
  

 	
           (k)
 has not commingled and will not commingle its funds or assets with those of
 any other Person; 

 
	
  

 	
  

 
	
  

 	
           (l)
 has held and will hold its assets in its own name; 

 
	
  

 	
  

 
	
  

 	
           (m)
 has maintained and will maintain financial statements that properly and
 accurately show its separate assets and liabilities and do not show the
 assets or liabilities of any other Person, and has not permitted and will not
 permit its assets to be listed as assets on the financial statement of any
 other entity other than an Affiliate (but in such case noting that such
 entity and the Affiliate are separate entities); 

 
	
  

 	
  

 
	
  

 	
           (n)
 has paid and will pay its own liabilities and expenses, including, but not
 limited to, the salaries of its own employees (if any), out of its own funds
 and assets, and has maintained and will maintain a sufficient number of
 employees or has entered into appropriate alternative arrangements for
 workforce services in light of its contemplated business operations; 

 
	
  

 	
  

 
	
  

 	
           (o)
 has observed and will observe all corporate, partnership or limited liability
 company formalities, as applicable; 

 
	
  

 	
  

 
	
  

 	
           (p)
 has not incurred and will not incur any Debt other than (a) with respect to
 Borrower, the Loans and (b) trade and operational debt which is (i) incurred
 in the ordinary course of business, (ii) not more than sixty (60) days past
 due, (iii) with trade creditors, (iv) with respect to Borrower, in the
 aggregate, in an amount less than $1,000,000.00, (v) not evidenced by a note,
 and (vi) paid when due. No Debt other than the Loans may be secured
 (subordinate or pari passu) by the Project; 

 
	
  

 	
  

 
	
  

 	
           (q)
 has not and will not assume or guarantee or become obligated for the debts of
 any other Person or hold out its credit as being available to satisfy the
 obligations of any other Person except as permitted pursuant to this
 Agreement; 

 
	
  

 	
  

 
	
  

 	
           (r)
 has not and will not acquire obligations or securities of its members or
 shareholders or any other Affiliate; 

 
	
  

 	
  

 
	
  

 	
           (s)
 has allocated and will allocate fairly and reasonably any overhead expenses
 that are shared with an Affiliate, including, but not limited to, paying for
 shared office space and services performed by any officer or employee of an
 Affiliate; 

 
	
  

 	
  

 
	
  

 	
           (t)
 maintains and uses and will
 maintain and use separate
 invoices and checks bearing its name. The stationery, invoices, and checks
 utilized by the Single Purpose Entity or utilized to collect its funds or pay
 its expenses shall bear its own name 

 


22









	
  

 	
  

 
	
  

 	
 and shall
 not bear the name of any other entity unless such entity is clearly
 designated as being the Single Purpose Entity’s agent; 

 
	
  

 	
  

 
	
  

 	
           (u)
 except in connection with the Loans, has not pledged and will not pledge its
 assets for the benefit of any other Person; 

 
	
  

 	
  

 
	
  

 	
           (v)
 has conducted business, held itself out and identified itself and will
 conduct business, hold itself out and identify itself as a separate and
 distinct entity under its own name or in a name franchised or licensed to it
 by a Person other than an Affiliate of Borrower and not as a division or part
 of any other Person; 

 
	
  

 	
  

 
	
  

 	
           (w)
 has not made and will not make loans to any person or entity or hold evidence
 of indebtedness issued by another person or entity (other than cash and
 securities issued by a person or entity that is not an Affiliate or subject
 to common ownership with such entity); 

 
	
  

 	
  

 
	
  

 	
           (x)
 has not identified and will not identify its partners, members or
 shareholders, or any Affiliate of any of them, as a division or part of it, and has not identified itself and shall
 not identify itself as a division of any other Person; 

 
	
  

 	
  

 
	
  

 	
           (y)
 has not entered into or been a party to, and will not enter into or be a
 party to, any transaction with its partners, members, shareholders or
 Affiliates except in the ordinary course of its business and on terms which
 are intrinsically fair, commercially reasonable and are no less favorable to
 it than would be obtained in a comparable arm’s length transaction with an
 unrelated third party; 

 
	
  

 	
  

 
	
  

 	
           (z)
 has not and will not have any obligation to indemnify its partners, officers,
 directors or members, as the case may be, unless such obligation is fully
 subordinated to the Indebtedness and will not constitute a claim against it
 in the event that, after payment of the Indebtedness, cash flow is
 insufficient to pay such obligation; 

 
	
  

 	
  

 
	
  

 	
           (aa)
 if such entity is a corporation, it is required to consider the interests of
 its creditors in connection with all corporate actions; 

 
	
  

 	
  

 
	
  

 	
           (bb)
 does not and will not have any of its obligations guaranteed by any
 affiliate. 

 



                    (163)
“Site Assessment” means an
environmental engineering report for the Project prepared by an engineer
engaged by Administrative Agent at Borrower’s expense, and in a manner
satisfactory to Administrative Agent, based upon an investigation relating to
and making appropriate inquiries concerning the existence of Hazardous
Materials on or about the Project, and the past or present discharge, disposal,
release or escape of any such substances, all consistent with good customary
and commercial practice. 


                    (164)
“Special Advance Lender”
has the meaning assigned to such term in Section 14.12(1). 


                    (165)
“Sponsor” means Acadia
Realty Limited Partnership 


23





                    (166)
“State” means the State of
New York. 


                    (167)
“Stub Interest Period” has
the meaning assigned to such term in Section 2.4(1). 


                    (168)
“Subordination of Property Management
Agreement” means that certain Property Manager’s Consent and
Subordination of Property Management Agreement, dated the date hereof, by the
Property Manager in favor of Administrative Agent (on behalf of the Lenders),
as the same may be modified, amended and/or supplemented and in effect from
time to time. 


                    (169)
“Syndication” has the
meaning assigned to such term to in Section 12.28. 


                    (170)
“Tax and Insurance Reserve Account”
has the meaning assigned to such term in the Cash Management Agreement. 


                    (171)
“Tax and Insurance Reserve Fund”
has the meaning assigned to such term in Section 4.1(1). 


                    (172)
“Taxes” has the meaning
assigned to such term in Section 9.2. 


                    (173)
“Terrorism Insurance” has
the meaning assigned to such term in Section 3.1(2). 


                    (174)
“Terrorism Insurance Cap”
has the meaning assigned to such term in Section 3.1(2). 


                    (175)
“Terrorism Insurance Required Amount”
has the meaning assigned to such term in Section 3.1(2).


                    (176)
“Third-Party Counterparty”
has the meaning assigned to such term in Section 9.15(3). 


                    (177)
“Third-Party Hedge Agreement”
has the meaning assigned to such term in Section 9.15(3). 


                    (178)
“Threshold Amount” means
$2,000,000. 


                    (179)
“TI/LC Letter of Credit”
has the meaning assigned to such term in Section 4.2. 


                    (180)
“Transfer” has the meaning
assigned to such term in Section 9.1. 


                    (181)
“Type” has the meaning
assigned to such term in Section 2.1. 


                    (182)
“Unit” means each unit of
the Condominium, together with all rights, interests and easements in and to
the Project Amenities that are held by the owner of such unit as a result of
the operation of the terms of the Condominium Declaration. 


24






                    (183)
“Unit Annual Assessments”
means the assessments allocated to each Unit and collected by Declarant as set
forth in the Condominium Declaration. 


                    (184)
“Unpaid Amount” has the
meaning assigned to such term in Section 14.12(2). 


          Section
1.2 Types of Loans. Loans hereunder are
distinguished by “Type”.
The “Type” of a Loan refers
to whether such Loan is an Base Rate Loan or a LIBOR-based Loan, each of which
constitutes a Type. 


ARTICLE 2


LOAN TERMS


          Section
2.1 The Commitments, Loans and Notes.


                    (1)
Loans. Each Lender severally
agrees, on the terms and conditions of this Agreement, to make a term loan to
Borrower in Dollars in a principal amount up to but not exceeding the amount of
the Commitment of such Lender. The Loans shall be funded in a single advance in
the aggregate amount of up to $86,000,000.00 and repaid in accordance with this
Agreement. The precondition to effectiveness of this Agreement shall be
Borrower’s satisfaction of the conditions described in Schedule 2.1.
Borrower hereby confirms that, notwithstanding the foregoing, the Loans have
been fully advanced in the amount of $86,000,000.00 prior to the date hereof
and that no actual advance of the Loans to Borrower shall be made on the date
hereof or be required during the term of the Loans. 


                    (2)
Lending Offices. The Loans of each
Lender shall be made and maintained at such Lender’s Applicable Lending Office
for Loans of such Type. 


                    (3)
Several Obligations. The failure
of any Lender to make any Loan to be made by it on the date specified therefor
shall not relieve any other Lender of its obligation to make its Loan, but
neither any Lender nor Administrative Agent shall be responsible for the
failure of any other Lender to make a Loan to be made by such other Lender. 


                    (4)
Notes. 


                    (a)
Loan Notes. The Loans made by each
Lender shall be evidenced by a single promissory note of Borrower substantially
in the form of Exhibit C, payable to such Lender in a principal amount
equal to the amount of its Commitment as originally in effect and otherwise
duly completed. 


                    (b)
Endorsements on Notes. The date,
amount, Type, interest rate and duration of Interest Period (if applicable) of
each Loan made by each Lender to Borrower, and each payment made on account of
the principal thereof, shall be recorded by such Lender on its books and, prior
to any transfer of the Note held by it, endorsed by such Lender on the schedule
attached to such Note or any continuation thereof; provided that the
failure of such Lender to make any such recordation or endorsement shall not
affect the obligations of Borrower to make a payment when due of any amount owing
hereunder or under such Note in respect of such Loans. 


25





                    (c)
Substitution, Exchange and Subdivision of
Notes. No Lender shall be entitled to have its Notes substituted or
exchanged for any reason, or subdivided for promissory notes of lesser
denominations, except in connection with a permitted assignment of all or any
portion of such Lender’s Commitment, Loans and Note pursuant to Sections
12.10 and 12.24 (and, if requested by any Lender, Borrower agrees to
so substitute or exchange any Notes and enter into note splitter agreements in
connection therewith). 


                    (d)
Loss, Theft, Destruction or Mutilation of
Notes. In the event of the loss, theft or destruction of any Note,
upon Borrower’s receipt of a reasonably satisfactory indemnification agreement
executed in favor of Borrower by the holder of such Note, or in the event of
the mutilation of any Note, upon the surrender of such mutilated Note by the
holder thereof to Borrower, Borrower shall execute and deliver to such holder a
new replacement Note in lieu of the lost, stolen, destroyed or mutilated Note. 


          Section
2.2 Conversions or Continuations of Loans.


                    (1)
Subject to Sections 2.8(4), 2.9(2) and 2.9(3), Lead
Borrower shall have the right to Convert Loans of one Type into Loans of
another Type or Continue Loans of one Type as Loans of the same Type, at any
time or from time to time; provided that: (a) Lead Borrower shall give
Administrative Agent notice of each such Conversion or Continuation as provided
in Section 2.8(5); (b) LIBOR-based Loans may be Converted only on the
last day of an Interest Period for such Loans unless Borrower complies with the
terms of Section 2.9(5) and (c) subject to Sections 2.9(1) and 2.9(3),
any Conversion or Continuation of Loans shall be pro rata among the Lenders.
Notwithstanding the foregoing, and without limiting the rights and remedies of
Administrative Agent and the Lenders under Article 11, in the event that
any Event of Default exists, Administrative Agent may (and at the request of
the Majority Lenders shall) suspend the right of Lead Borrower to Convert any
Loan into a LIBOR-based Loan, or to Continue any Loan as a LIBOR-based Loan for
so long as such Event of Default exists, in which event all Loans shall be
Converted (on the last day(s) of the respective Interest Periods therefor) or
Continued, as the case may be, as Base Rate Loans. In connection with any such
Conversion, a Lender may (at its sole and absolute discretion) transfer a Loan
from one Applicable Lending Office to another. 


                    (2)
Notwithstanding anything to the contrary contained in this Agreement, at any
time that a Hedge Agreement is in effect, Lead Borrower shall have the right to
choose only an Interest Period with respect to the principal amount equal to
the notional amount under such Hedge Agreement which is the same as the
Interest Rate Hedge Period. 


          Section
2.3 Interest Rate; Late Charge.


                    (1)
Borrower hereby promises to pay to Administrative Agent for account of each
Lender interest on the unpaid principal amount of each Loan (which may be Base
Rate Loans and/or LIBOR-based Loans) made by such Lender for the period from
and including the date of such Loan to but excluding the date such Loan shall
be paid in full, at the following rates per annum: 


                    (a)
during such periods as such Loan is a Base Rate Loan, the Base Rate plus the
Applicable Margin; and 


26





                    (b)
during such periods as such Loan is a LIBOR-based Loan, for each Interest
Period relating thereto, the Adjusted LIBOR Rate for such Loan for such
Interest Period plus the Applicable Margin.  


                    (2)
Accrued interest on each Loan shall be payable (i) monthly in arrears on each
Payment Date and (ii) in the case of any Loan, upon the payment or prepayment
thereof or the Conversion of such Loan to a Loan of another Type (but only on
the principal amount so paid, prepaid or Converted), except that interest
payable at the Default Rate shall be payable from time to time on demand. 


                    (3)
Notwithstanding anything to the contrary contained herein, after the Maturity
Date and during any period when an Event of Default exists, Borrower shall pay
to Administrative Agent for the account of each Lender interest at the
applicable Default Rate on the outstanding principal amount of any Loan made by
such Lender, any interest payments (except a late payment of any Additional
Interest which shall be governed by the terms of the Hedge Agreement) thereon
not paid when due and on any other amount payable by Borrower hereunder, under
the Notes and any other Loan Documents. 


                    (4)
Promptly after the determination of any interest rate provided for herein or
any change therein, Administrative Agent shall give notice thereof to the
Lenders to which such interest is payable and to Lead Borrower, but the failure
of Administrative Agent to provide such notice shall not affect Borrower’s
obligation for the payment of interest on the Loans. 


                    (5)
In addition to any sums due under this Section 2.3, Borrower shall pay
to Administrative Agent for the account of the Lenders a late payment premium
in the amount of five percent (5.0%) of (i) any payments of principal under the
Loans made and payable after the due date thereof, and (ii) any payments of
interest or other sums under the Loans made more than five (5) days after the
due date thereof, which late payment premium shall be due with any such late
payment or upon demand by Administrative Agent. Such late payment charge
represents the reasonable estimate of Borrower and the Lenders of a fair
average compensation for the loss that may be sustained by the Lenders due to
the failure of Borrower to make timely payments. Such late charge shall be paid
without prejudice to the right of Administrative Agent and the Lenders to
collect any other amounts provided herein or in the other Loan Documents to be
paid or to exercise any other rights or remedies under the Loan Documents. 


                    (6)
Borrower shall pay Additional Interest under the Notes in accordance with the
terms of any Hedge Agreement provided by a Eurohypo Counterparty. 


          Section
2.4 Terms of Payment.


          The
Loans shall be payable as follows: 


                    (1)
Interest. On the date hereof,
Borrower shall make a payment of interest only (covering the period from the
date hereof through and including December 1, 2009 (the “Stub Interest Period”), and beginning
with the first Business Day of each month thereafter, commencing on January 1,
2010, Borrower shall pay interest in arrears on each Payment Date in accordance
with the wire transfer instructions set forth in Schedule 2.4(1) hereto
(or such other 


27





instructions
as Administrative Agent may from time to time provide) until all amounts due
under the Loan Documents are paid in full. 


                    (2)
Principal Amortization. Borrower
shall make payments of interest only for the first twelve (12) months of the
term of the Loan. Beginning with the first Payment Date following the first
anniversary of the Closing Date and continuing through the Maturity Date
(including, if the extension option is exercised, through the Extension
Period), Borrower shall make payments of principal in the amounts set forth on Schedule
2.4(2) attached hereto and made a part hereof. 


                    (3)
Maturity. On the Maturity Date,
Borrower shall pay to Administrative Agent (on behalf of the Lenders) all
outstanding principal, accrued and unpaid interest, and any other amounts due
under the Loan Documents. 


                    (4)
Optional Prepayments. Subject to
the provisions of Sections 2.4(6) and 2.9(5), Borrower shall have
the right to prepay Loans in whole or in part, without premium or penalty; provided
that: (a) Lead Borrower shall give Administrative Agent notice of each such
prepayment as provided in Section 2.8(5) (and, upon the date specified
in any such notice of prepayment, the amount to be prepaid shall become due and
payable hereunder) and (b) partial prepayments shall be in the minimum
aggregate principal amounts specified in Section 2.8(4). Loans that are
prepaid cannot be reborrowed. 


                    (5)
Mandatory Prepayments. If a
casualty or condemnation shall occur with respect to the Project, Borrower,
upon Borrower’s or Administrative Agent’s receipt of the applicable insurance
proceeds or condemnation award, shall prepay the Loan, if required by the
provisions of Article 3, on the dates and in the amounts specified
therein without premium (but subject to the provisions of Sections 2.4(6)
and 2.9(5)). Nothing in this Section 2.4(5) shall be deemed to
limit any obligation of Borrower under the Mortgage or any other Security
Document, including any obligation to remit to a collateral or similar account
maintained by Administrative Agent pursuant to the Mortgage or any of the other
Security Documents the proceeds of insurance, condemnation award or other
compensation received in respect of any casualty or condemnation. Prepayments
pursuant to this Section 2.4(5) shall be applied to the Loans then
outstanding pro rata in the order set forth in Section 2.4(6). 


                    (6)
Interest and Other Charges on Prepayment.
If the Loans are prepaid, in whole or in part, pursuant to Section 2.4(4)
or 2.4(5), each such prepayment shall be made on the prepayment date
specified in the notice to Administrative Agent pursuant to Section 2.8(5),
and (in every case) together with (a) the accrued and unpaid interest
(including accrued and unpaid Additional Interest, if applicable) on the
principal amount prepaid and (b) any amounts payable to a Lender pursuant to Section
2.9(5) as a result of such prepayment while an Adjusted LIBOR Rate is in
effect; provided, however, that any such prepayment shall be
applied first, to the prepayment of any portions of the outstanding
principal amount that are Base Rate Loans and, second, to the prepayment
of any portions of the outstanding principal amount that are LIBOR-based Loans
applying such sums first to LIBOR-based Loans of the shortest maturity so as to
minimize breakage costs; provided further, however, that
if an Event of Default exists, Administrative Agent may distribute such payment
to the Lenders for application in such manner as it or the Majority Lenders,
subject to Section 2.8(2), may determine to be appropriate. 


28





                    (7)
Application of Payments. All
payments received by Administrative Agent under the Loan Documents shall be
applied: first, to any fees and expenses due to Administrative Agent and the
Lenders under the Loan Documents; second, to any Default Rate interest or late
charges; third, to accrued and unpaid interest; and fourth, to the principal
sum and other amounts due under the Loan Documents; provided, however,
that, if an Event of Default exists Administrative Agent shall apply such
payments in any order or manner as Administrative Agent shall determine. 


          Section
2.5 Extension of Maturity Date. Borrower may,
at its option, extend the term of the then outstanding principal amount for a
period of three hundred sixty-four (364) days from the original Maturity Date
(the applicable period being, the (“Extension Period”), subject to the
satisfaction of the following conditions: 


                    (1)
Lead Borrower shall notify (the “Extension Notice”) Administrative Agent
of Borrower’s exercise of such option between sixty (60) and one hundred twenty
(120) days prior to the original Maturity Date; 


                    (2)
No Potential Default or Event of Default exists as of the date of the Extension
Notice, as of the original Maturity Date or would result from the extension of
the maturity of the Loans for the Extension Period; 


                    (3)
The Loan to Value Ratio does not exceed 70%, based on a new Appraisal obtained
by Administrative Agent not more than sixty (60) days prior to the original
Maturity Date, such Appraisal to be at Borrower’s expense and satisfactory to
Administrative Agent in all respects; 


                    (4)
The Pro Forma Debt Service Coverage Ratio as of the original Maturity Date
shall be equal to or greater than 1.45:1.00;


                    (5)
The Debt Yield as of the original Maturity Date shall not be less than ten
percent (10.0%). 


                    (6)
The expiration date of any Collateral Letters of Credit, if still outstanding
pursuant to the terms of this Agreement or any other Loan Document, shall be
extended to a date which is thirty (30) days beyond the end of the Extension
Period, or shall otherwise contain evergreen provisions satisfactory to
Administrative Agent, in its sole and absolute discretion; 


                    (7)
Current financial statements regarding Borrower (dated not earlier than ninety
(90) days prior to the Extension Notice) and all other financial statements and
other information as may be required under this Agreement and the Loan
Documents regarding Borrower and the Project shall have been submitted promptly
to Administrative Agent; 


                    (8)
In the opinion of Administrative Agent, there shall not have occurred any
Material Adverse Effect; 


                    (9)
Whether or not the extension becomes effective, Borrower shall pay all
out-of-pocket costs and expenses incurred by Administrative Agent and the
Lenders in connection with the proposed extension (pre- and post-closing),
including appraisal fees and 


29





legal fees;
all such costs and expenses shall be due and payable upon demand, and any
failure to pay such amounts shall constitute a default under this Agreement and
the Loan Documents; 


                    (10)
Not later than the original Maturity Date, (i) the extension shall have been
documented to the Lenders’ satisfaction and consented to by Borrower,
Administrative Agent and all the Lenders, including the execution and delivery
by the Guarantor of reaffirmations of their respective obligations under the
Guaranty and (ii) Administrative Agent shall have been provided with an updated
title report and judgment and lien searches, and appropriate title insurance
endorsements shall have been issued as required by Administrative Agent; and 


                    (11)
Borrower shall pay to Administrative Agent (for the benefit of the Lenders in
accordance with their proportionate shares) on the original Maturity Date a
non-refundable extension fee equal to one-half percent (0.50%) of an amount
equal to the outstanding principal amount at such time. 


          Any
such extension shall be otherwise subject to all of the other terms and
provisions of this Agreement and the other Loan Documents.


          Section
2.6 Reserved. 


          Section
2.7 Cash Management.


                    (1)
Borrower shall cause all rents from the Project to be deposited into the
Clearing Account in accordance with the Deposit Account Control Agreement and
the Cash Management Agreement. Without limitation of the foregoing, Borrower
shall, and shall cause the Property Manager to, (a) deliver irrevocable written
instructions to all tenants under leases to deliver all rents payable thereunder
directly to the Clearing Account, and (b) deposit all amounts received by
Borrower or the Property Manager constituting rents or other revenue of any
kind from the Project into the Clearing Account within one (1) Business Day of
receipt thereof. Disbursements from the Clearing Account will be made in
accordance with the terms and conditions of this Agreement and the Cash
Management Agreement. Administrative Agent shall have sole dominion and control
over the Clearing Account and Borrower shall have no rights to make withdrawals
therefrom. 


                    (2)
Notwithstanding anything to the contrary contained in this Agreement or the
other Loan Documents, and provided no Event of Default exists, Borrower’s
obligations with respect to the monthly payment of interest and principal (if
any) and the deposits to be made into the Security Accounts and any other
payment due pursuant to this Agreement or any other Loan Document shall be
deemed satisfied to the extent sufficient amounts are deposited in the Cash
Management Account and are unconditionally available to Administrative Agent
(on behalf of the Lenders) to satisfy such obligations in accordance with the
terms of this Agreement and the Cash Management Agreement on the dates each
such payment is required, regardless of whether any of such amounts are so
applied by Administrative Agent. 


                    (3)
The insufficiency of funds on deposit in the Clearing Account or the Cash
Management Account (or any sub-account thereunder) shall not absolve Borrower
of the obligation to make any payments as and when due pursuant to this
Agreement and the other 


30





Loan
Documents, and such obligations shall be separate and independent, and not
conditioned on any event or circumstance whatsoever.


          Section
2.8 Payments; Pro Rata Treatment; Etc.


                    (1)
Payments Generally. 


                    (a)
Payments by Borrower. Except to
the extent otherwise provided herein, all payments of principal, interest and
other amounts to be made by Borrower under this Agreement and the Notes, and,
except to the extent otherwise provided therein, all payments to be made by
Borrower under any other Loan Document, shall be made in Dollars, in
immediately available funds, without deduction, set-off or counterclaim, to
Administrative Agent at an account designated by Administrative Agent by notice
to Lead Borrower, not later than 2:00 p.m., New York City time, on the date on
which such payment shall become due (each such payment made after such time on
such due date to be deemed to have been made on the next succeeding Business
Day). 


                    (b)
Application of Payments. Subject
to the provisions of Section 2.4(7), Lead Borrower shall, at the time of
making each payment under this Agreement or any Note for the account of any
Lender, specify to Administrative Agent (which shall so notify the intended
recipient(s) thereof) the Loans or other amounts payable by Borrower hereunder
to which such payment is to be applied (and in the event that Lead Borrower
fails to so specify, or if an Event of Default has occurred and is continuing,
Administrative Agent may distribute such payment to the Lenders for application
in such manner as it may determine to be appropriate, subject to Section
2.8(2) and any other agreement among Administrative Agent and the Lenders
with respect to such application). 


                    (c)
Forwarding of Payments by Administrative
Agent. Except as otherwise agreed by Administrative Agent and the
Lenders, each payment received by Administrative Agent under this Agreement or
any Note for account of any Lender shall be paid by Administrative Agent
promptly to such Lender, in immediately available funds, for account of such
Lender’s Applicable Lending Office for the Loan or other obligation in respect
of which such payment is made. 


                    (d)
Extensions to Next Business Day.
If the due date of any payment under this Agreement or any Note would otherwise
fall on a day that is not a Business Day, such date shall be extended to the
next succeeding Business Day, and interest shall be payable for any principal
so extended for the period of such extension. 


                    (2)
Pro Rata Treatment. Except to the
extent otherwise provided herein: (a) except as otherwise provided in Section
2.9(4), Loans shall be allocated pro rata among the Lenders according to the
amounts of their respective Commitments (in the case of the making of Loans) or
their respective Loans (in the case of Conversions or Continuations of Loans);
(b) each payment or prepayment of principal of Loans by Borrower shall be made
for account of the Lenders pro rata in accordance with the respective unpaid
principal amounts of the Loans held by them; and (c) each payment of interest
on Loans by Borrower shall be made for account of the 


31






Lenders pro
rata in accordance with the amounts of interest on such Loans then due and
payable to the respective Lenders. 


                    (3)
Computations. Interest on all
Loans shall be computed on the basis of a year of 360 days and actual days elapsed
(including the first day but excluding the last day) occurring in the period
for which payable. 


                    (4)
Minimum Amounts. Except for (a)
mandatory prepayments made pursuant to Section 2.4(5) and (b)
Conversions or prepayments made pursuant to Section 2.9(4), each
borrowing, Conversion, Continuation and partial prepayment of principal
(collectively, “Loan Transactions”) of Loans shall be in an aggregate
amount at least equal to $1,000,000 (Loan Transactions of or into Loans of
different Types or Interest Periods at the same time hereunder shall be deemed
separate Loan Transactions for purposes of the foregoing, one for each Type or
Interest Period); provided that if any Loans or borrowings would
otherwise be in a lesser principal amount for any period, such Loans shall be
Base Rate Loans during such period. Notwithstanding the foregoing, the minimum
amount of $1,000,000 shall not apply to Conversions of lesser amounts into a
tranche of Loans that has (or will have upon such Conversion) an aggregate
principal amount exceeding such minimum amount and one Interest Period. 


                    (5)
Certain Notices. Notices by Lead
Borrower to Administrative Agent regarding Loan Transactions and the selection
of Types of Loans and/or of the duration of Interest Periods shall be
irrevocable and shall be effective only if received by Administrative Agent not
later than 12:00 noon, New York City time, on the number of Business Days prior
to the date of the proposed Loan Transaction or the first day of such Interest
Period specified below: 


	
  

 	
  

 	
  

 
	
 Notice

 	
  

 	
 Number of Business

 Days Prior

 
	

 


 	
  

 	

 


 
	
 Optional
 Prepayment

 	
  

 	
 3

 
	
  

 	
  

 	
  

 
	
 Conversions
 into, Continuations as, or borrowings in Base Rate Loans

 	
  

 	
 3

 
	
  

 	
  

 	
  

 
	
 Conversions
 into, Continuations as, borrowings in or changes in duration of Interest
 Period for, LIBOR-based Loans (subject to Section 2.4(6)

 	
  

 	
 3

 



Each such
notice of a Loan Transaction shall specify the amount (subject to Section
2.8(4)), Type, and Interest Period of such proposed Loan Transaction, and
the date (which shall be a Business Day) of such proposed Loan Transaction.
Notices for Conversions and Continuations shall be in the form of Exhibit F.
Each such notice specifying the duration of an Interest Period shall specify
the portion of the Loans to which such Interest Period is to relate.
Administrative Agent shall promptly notify the Lenders of the contents of each
such notice. If Lead Borrower 


32





fails to
select (i) the Type of Loan or (ii) the duration of any Interest Period for any
LIBOR-based Loan within the time period (i.e., three (3) Business Days prior to
the first day of the next applicable Interest Period) and otherwise as provided
in this Section 2.8(5), such Loan (if outstanding as a LIBOR Loan) will
be automatically Continued as an LIBOR-based Loan with an Interest Period of
one (1) month on the last day of the current Interest Period for such Loan
(based on a LIBOR-based Rate determined two (2) Business Days prior to the
first day of the next Interest Period) or, if outstanding as an Base Rate Loan,
will remain as a Base Rate Loan. 


                    (6)
Non-Receipt of Funds by Administrative Agent.
Unless Administrative Agent shall have been notified by a Lender or Lead
Borrower (in either case, and along with Borrower, the “Payor”) prior to the date on which the
Payor is to make payment to Administrative Agent of (in the case of a Lender)
the proceeds of a Loan to be made by such Lender hereunder or (in the case of
Borrower) a payment to Administrative Agent for account of any Lender hereunder
(in either case, such payment being herein called the “Required Payment”), which notice shall
be effective upon receipt, that the Payor does not intend to make the Required
Payment to Administrative Agent, Administrative Agent may assume that the
Required Payment has been made and may, in reliance upon such assumption (but
shall not be required to), make the amount thereof available to the intended
recipient(s) on such date; and, if the Payor has not in fact made the Required
Payment to Administrative Agent, the recipient(s) of such payment shall, on
demand, repay to Administrative Agent the amount so made available together
with interest thereon in respect of each day during the period commencing on
the date (the “Advance Date”)
such amount was so made available by Administrative Agent until the date
Administrative Agent recovers such amount at a rate per annum equal to (a) the
Federal Funds Rate for such day in the case of payments returned to
Administrative Agent by any of the Lenders or (b) the applicable interest rate
due hereunder with respect to payments returned by Borrower to Administrative
Agent and, if such recipient(s) shall fail promptly to make such payment,
Administrative Agent shall be entitled to recover such amount, on demand, from
the Payor, together with interest as aforesaid; provided that if neither
the recipient(s) nor the Payor shall return the Required Payment to
Administrative Agent within three (3) Business Days of the Advance Date, then,
retroactively to the Advance Date, the Payor and the recipient(s) shall each be
obligated to pay interest on the Required Payment as follows: 


                    (a)
if the Required Payment shall represent a payment to be made by Borrower to the
Lenders, Borrower and the recipient(s) shall each be obligated retroactively to
the Advance Date to pay interest in respect of the Required Payment at the
Default Rate (without duplication of the obligation of Borrower under Section
2.3 to pay interest on the Required Payment at the Default Rate), it being
understood that the return by the recipient(s) of the Required Payment to
Administrative Agent shall not limit such obligation of Borrower under Section
2.3 to pay interest at the Default Rate in respect of the Required Payment, and 


                    (b)
if the Required Payment shall represent proceeds of a Loan to be made by the
Lenders to Borrower, the Payor and Borrower shall each be obligated
retroactively to the Advance Date to pay interest in respect of the Required
Payment pursuant to whichever of the rates specified in Section 2.3 is
applicable to the Type of such Loan, it being understood that the return by
Borrower of the Required Payment to Administrative Agent shall not limit any
claim Borrower may have against the Payor in respect of such Required Payment. 


33





                    (7)
Sharing of Payments, Etc. 


                    (a)
Right of Set-off. Borrower agrees
that, in addition to (and without limitation of) any right of set-off, banker’s
lien or counterclaim a Lender may otherwise have, (subject, as among the
Lenders, to Section 12.26), each Lender shall be entitled, at its option
(to the fullest extent permitted by law), to set off and apply any deposit
(general or special, time or demand, provisional or final), or other
indebtedness, held by it for the credit or account of Borrower at any of its
offices, in Dollars or in any other currency, against any principal of or
interest on any of such Lender’s Loans or any other amount payable to such
Lender hereunder, that is not paid when due (regardless of whether such deposit
or other indebtedness is then due to Borrower), in which case it shall promptly
notify Borrower and Administrative Agent thereof, provided that such Lender’s
failure to give such notice shall not affect the validity thereof. 


                    (b)
Sharing. If any Lender shall
obtain from Borrower payment of any principal of or interest on any Loan owing
to it or payment of any other amount under this Agreement or any other Loan
Document through the exercise (subject, as among the Lenders, to Section
12.26) of any right of set-off, banker’s lien or counterclaim or similar
right or otherwise (other than from Administrative Agent as provided herein),
and, as a result of such payment, such Lender shall have received a greater
percentage of the principal of or interest on the Loans or such other amounts
then due hereunder or thereunder by Borrower to such Lender than the percentage
received by any other Lender, it shall promptly purchase from such other
Lenders participations in (or, if and to the extent specified by such Lender,
direct interests in) the Loans or such other amounts, respectively, owing to
such other Lenders (or in interest due thereon, as the case may be) in such
amounts, and make such other adjustments from time to time as shall be
equitable, to the end that all the Lenders shall share the benefit of such
excess payment (net of any expenses that may be incurred by such Lender in
obtaining or preserving such excess payment) pro rata in accordance with the
unpaid principal of and/or interest on the Loans or such other amounts,
respectively, owing to each of the Lenders. To such end all the Lenders shall
make appropriate adjustments among themselves (by the resale of participations
sold or otherwise) if such payment is rescinded or must otherwise be restored. 


                    (c)
Consent by Borrower. Borrower
agrees that any Lender so purchasing such a participation (or direct interest)
may exercise (subject, as among the Lenders, to Section 12.26) all
rights of set-off, banker’s lien, counterclaim or similar rights with respect
to such participation as fully as if such Lender were a direct holder of Loans
or other amounts (as the case may be) owing to such Lender in the amount of
such participation. 


                    (d)
Rights of Lenders; Bankruptcy.
Nothing contained herein shall require any Lender to exercise any such right or
shall affect the right of any Lender to exercise, and retain the benefits of
exercising, any such right with respect to any other indebtedness or obligation
of Borrower. If, under any applicable bankruptcy, insolvency or other similar
law, any Lender receives a secured claim in lieu of a set-off to which this Section
2.8(7) applies, such Lender shall, to the extent practicable, exercise its
rights in respect of such secured claim in a manner consistent with the rights
of the Lenders entitled under this Section 2.8(7) to share in the
benefits of any recovery on such secured claim. 


34







          Section
2.9 Yield Protection; Etc. 


                    (1)
Additional Costs.


                    (a)
Costs of Making or Maintaining LIBOR-based
Loans. Borrower shall pay directly to each Lender from time to time
such amounts as such Lender may determine to be necessary to compensate such
Lender for any costs that such Lender determines are attributable to its making
or maintaining of any LIBOR-based Loans or its obligation to make any
LIBOR-based Loans hereunder, or any reduction in any amount receivable by such
Lender hereunder in respect of any of such Loans or such obligation (such
increases in costs and reductions in amounts receivable being herein called “Additional Costs”), resulting from any
Regulatory Change that: 


	
  

 	
  

 	
  

 
	
  

 	
 (i)

 	
 shall
 subject any Lender (or its Applicable Lending Office for any of such Loans)
 to any tax, duty or other charge in respect of such Loans or its Note or
 changes the basis of taxation of any amounts payable to such Lender under
 this Agreement or its Note in respect of any of such Loans (excluding changes
 in the rate of tax on the overall net income of such Lender or of such
 Applicable Lending Office by the jurisdiction in which such Lender has its
 principal office or such Applicable Lending Office); or

 
	
  

 	
  

 	
  

 
	
  

 	
 (ii)

 	
 imposes or
 modifies any reserve, special deposit or similar requirements (other than the
 Reserve Requirement used in the determination of the Adjusted LIBOR Rate for
 any Interest Period for such Loan) relating to any extensions of credit or
 other assets of, or any deposits with or other liabilities of, such Lender
 (including, without limitation, any of such Loans or any deposits referred to
 in the definition of “LIBOR Rate”), or any commitment of such Lender
 (including, without limitation, the Commitment of such Lender hereunder); or 

 
	
  

 	
  

 	
  

 
	
  

 	
 (iii)

 	
 imposes any
 other condition affecting this Agreement or its Note (or any of such
 extensions of credit or liabilities) or its Commitment.

 



If any Lender
requests compensation from Lead Borrower under this paragraph (a), Borrower
may, by notice to such Lender (with a copy to Administrative Agent), suspend
the obligation of such Lender thereafter to make or Continue LIBOR-based Loans,
or to Convert Loans into LIBOR-based Loans, until the Regulatory Change giving
rise to such request ceases to be in effect (in which case the provisions of Section
2.9(4) shall be applicable), provided that such suspension shall not
affect the right of such Lender to receive the compensation so requested. 


                    (b)
Costs Attributable to Regulatory Change or
Risk-Based Capital Guidelines. Without limiting the effect of the
foregoing provisions of this Section 2.9(1) (but without duplication),
Borrower shall pay directly to each Lender from time to time on request such
amounts as such Lender may determine to be necessary to compensate such Lender
(or, without duplication, the bank holding company of which such Lender is a
subsidiary) for any costs that it determines are attributable to the
maintenance by such Lender (or any Applicable 


35





Lending Office
or such bank holding company), pursuant to any law or regulation or any
interpretation, directive or request (whether or not having the force of law
and whether or not failure to comply therewith would be unlawful) of any court
or governmental or monetary authority (i) following any Regulatory Change or
(ii) implementing any risk-based capital guideline or other requirement
(whether or not having the force of law and whether or not the failure to
comply therewith would be unlawful) hereafter issued by any government or
governmental or supervisory authority implementing at the national level the
Basel II Accord, of capital in respect of its Commitment or Loans (such
compensation to include, without limitation, an amount equal to any reduction
of the rate of return on assets or equity of such Lender (or any Applicable
Lending Office or such bank holding company) to a level below that which such
Lender (or any Applicable Lending Office or such bank holding company) could
have achieved but for such law, regulation, interpretation, directive or
request. 


                    (c)
Notification and Certification.
Each Lender shall notify Lead Borrower of any event occurring after the date
hereof entitling such Lender to compensation under paragraph (a) or (b) of this
Section 2.9(1) as promptly as practicable, but in any event within sixty
(60) days, after such Lender obtains actual knowledge thereof; provided
that (i) if any Lender fails to give such notice within sixty (60) days after
it obtains actual knowledge of such an event, such Lender shall, with respect
to compensation payable pursuant to this Section 2.9(1) in respect of
any costs resulting from such event, only be entitled to payment under this Section
2.9(1) for costs incurred from and after the date forty-five (45) days
prior to the date that such Lender does give such notice and (ii) each Lender
will designate a different Applicable Lending Office for the Loans of such
Lender affected by such event if such designation will avoid the need for, or
reduce the amount of, such compensation and will not, in the sole opinion of
such Lender, be disadvantageous to such Lender, except that such Lender shall
have no obligation to designate an Applicable Lending Office located in the
United States of America. Each Lender will furnish to Lead Borrower a
certificate setting forth the basis and amount of each request by such Lender
for compensation under paragraph (a) or (b) of this Section 2.9(1).
Determinations and allocations by any Lender for purposes of this Section
2.9(1) of the effect of any Regulatory Change pursuant to paragraph (a) of
this Section 2.9(1), or of the effect of capital maintained pursuant to
paragraph (b) of this Section 2.9(1), on its costs or rate of return of
maintaining Loans or its obligation to make Loans, or on amounts receivable by
it in respect of Loans, and of the amounts required to compensate such Lender
under this Section 2.9(1), shall be conclusive, provided that such
determinations and allocations are made on a reasonable basis. 


                    (2)
Limitation on Types of Loans.
Anything herein to the contrary notwithstanding, if, on or prior to the
determination of the LIBOR Rate for any Interest Period for any LIBOR-based
Loan: 


                    (a)
Administrative Agent determines, which determination shall be conclusive, that
quotations of interest rates for the relevant deposits referred to in the
definition of LIBOR Rate are not being provided in the relevant amounts or for
the relevant maturities for purposes of determining rates of interest for
LIBOR-based Loans as provided herein; or 


                    (b)
Any Lender determines, which determination shall be conclusive, and notifies
Administrative Agent that the relevant rates of interest referred to in the
definition of LIBOR Rate upon the basis of which the rate of interest for
LIBOR-based Loans for such 


36





Interest
Period is to be determined are not likely adequately to cover the cost to such
Lenders of making or maintaining LIBOR-based Loans for such Interest Period; 


then
Administrative Agent shall give Lead Borrower and each Lender prompt notice
thereof and, so long as such condition remains in effect, the Lenders shall be
under no obligation to make additional LIBOR-based Loans, to Continue
LIBOR-based Loans or to Convert Loans of any other Type into LIBOR-based Loans,
and Borrower shall, on the last day(s) of the then current Interest Period(s)
for the outstanding LIBOR-based Loans, either prepay such Loans or such Loans
shall be automatically Converted into Base Rate Loans. 


                    (3)
Illegality. Notwithstanding any
other provision of this Agreement, in the event that it becomes unlawful for
any Lender or its Applicable Lending Office to honor its obligation to make or
maintain LIBOR-based Loans hereunder (and, in the sole opinion of such Lender,
the designation of a different Applicable Lending Office would either not avoid
such unlawfulness or would be disadvantageous to such Lender), then such Lender
shall promptly notify Lead Borrower thereof (with a copy to Administrative
Agent) and such Lender’s obligation to make or Continue, or to Convert Loans of
any other Type into, LIBOR-based Loans shall be suspended until such time as
such Lender may again make and maintain LIBOR-based Loans (in which case the
provisions of Section 2.9(4) shall be applicable).  


                    (4)
Treatment of Affected Loans. If the obligation of any
Lender to make LIBOR-based Loans or to Continue, or to Convert Base Rate Loans
into, LIBOR-based Loans shall be suspended pursuant to Section 2.9(1) or
2.9(3), such Lender’s Loans shall be automatically Converted into Base
Rate Loans on the last day(s) of the then current Interest Period(s) for Loans
(or, in the case of a Conversion resulting from a circumstance described in
Section 2.9(3), on such earlier date as such Lender may specify to Lead
Borrower with a copy to Administrative Agent) and, unless and until such Lender
gives notice as provided below that the circumstances specified in Section
2.9(1) or 2.9(3) that gave rise to such Conversion no longer exist:  


                    (a)
to the extent that such Lender’s Loans have been so Converted, all payments and
prepayments of principal that would otherwise be applied to such Lender’s Loans
shall be applied instead to its Base Rate Loans; and 


                    (b)
all Loans that would otherwise be made or Continued by such Lender as
LIBOR-based Loans shall be made or Continued instead as Base Rate Loans, and
all Loans of such Lender that would otherwise be Converted into LIBOR-based
Loans shall remain as Base Rate Loans. 


If such Lender
gives notice to Lead Borrower with a copy to Administrative Agent that the
circumstances specified in Section 2.9(1) or 2.9(3) that gave
rise to the Conversion of such Lender’s Loans pursuant to this Section
2.9(4) no longer exist (which such Lender agrees to do promptly upon such
circumstances ceasing to exist) at a time when LIBOR-based Loans made by other
Lenders are outstanding, such Lender’s Base Rate Loans shall be automatically
Converted, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding LIBOR-based Loans, to the extent necessary so that, after
giving effect thereto, all Base Rate Loans and LIBOR-based Loans are allocated
among the Lenders ratably (as to principal amounts, Types 


37





and Interest
Periods) in accordance with their respective Commitments. 


                    (5)
Compensation. Borrower shall pay
to Administrative Agent for account of each Lender, upon the request of such
Lender through Administrative Agent, such amount or amounts as shall be
sufficient (in the reasonable opinion of such Lender) to compensate it for any
loss, cost or expense that such Lender determines is attributable to: 


                    (a)
any payment, prepayment or Conversion of a LIBOR-based Loan made by such Lender
for any reason (including, without limitation, the acceleration of the Loans
pursuant to Administrative Agent’s or the Lenders’ rights referred to in Article
11) on a date other than the last day of the Interest Period for such Loan;
or 


                    (b)
any failure by Borrower for any reason to borrow a LIBOR-based Loan from such
Lender on the date for such borrowing specified in the relevant notice of
borrowing given to Administrative Agent in accordance with the terms of this Agreement.



Without
limiting the effect of the preceding sentence, such compensation shall include
an amount equal to the excess, if any, of (i) the amount of interest that
otherwise would have accrued on the principal amount so paid, prepaid,
Converted or not borrowed for the period from the date of such payment,
prepayment, Conversion or failure to borrow to the last day of the then current
Interest Period for such Loan (or, in the case of a failure to borrow, the
Interest Period for such Loan that would have commenced on the date specified
for such borrowing) at the applicable rate of interest for such Loan provided
for herein over (ii) the amount of interest that otherwise would have accrued
on such principal amount at a rate per annum equal to the interest component of
the amount such Lender would have bid in the London interbank market for Dollar
deposits of leading banks in amounts comparable to such principal amount and
with maturities comparable to such period (as reasonably determined by such
Lender), or if such Lender shall cease to make such bids, the equivalent rate,
as reasonably determined by such Lender, derived from Page 3750 of the Dow
Jones Markets (Telerate) Service or other publicly available source as
described in the definition of LIBOR Rate. 


                    (6)
U.S. Taxes.


                    (a)
Gross-up for Deduction or Withholding of U.S.
Taxes. Borrower agrees to pay to each Lender that is not a U.S.
Person such additional amounts as are necessary in order that the net payment of
any amount due to such non-U.S. Person hereunder after deduction for or
withholding in respect of any U.S. Taxes imposed with respect to such payment
(or in lieu thereof, payment of such U.S. Taxes by such non-U.S. Person), will
not be less than the amount stated herein to be then due and payable, provided
that the foregoing obligation to pay such additional amounts shall not apply: 


	
  

 	
  

 	
  

 
	
  

 	
 (i)

 	
 to any
 payment to any Lender hereunder unless such Lender is, on the date hereof (or
 on the date it becomes a Lender hereunder as provided in Section 12.24(2))
 and on the date of any change in the Applicable Lending Office of such
 Lender, either entitled to submit a Form W-8BEN (relating to such Lender and
 entitling it to a complete exemption from withholding on all interest to be 

 


38









	
  

 	
  

 	
  

 
	
  

 	
  

 	
 received by
 it hereunder in respect of the Loans) or Form W-8ECI (relating to all
 interest to be received by such Lender hereunder in respect of the Loans), or

 
	
  

 	
  

 	
  

 
	
  

 	
 (ii)

 	
 to any U.S.
 Taxes imposed solely by reason of the failure by such non-U.S. Person to
 comply with applicable certification, information, documentation or other
 reporting requirements concerning the nationality, residence, identity or
 connections with the United States of America of such non-U.S. Person if such
 compliance is required by statute or regulation of the United States of
 America as a precondition to relief or exemption from such U.S. Taxes. 

 



For the
purposes hereof, (A) “U.S. Person”
means a citizen, national or resident of the United States of America, a
corporation, limited liability company, partnership or other entity created or
organized in or under any laws of the United States of America or any State
thereof, or any estate or trust that is subject to Federal income taxation
regardless of the source of its income, (B) “U.S. Taxes” means any present or future tax, assessment or
other charge or levy imposed by or on behalf of the United States of America or
any taxing authority thereof or therein, (C) “Form W-8BEN” means Form W-8BEN of the Department of the
Treasury of the United States of America and (D) “Form W-8ECI” means Form W-8ECI of the Department of the
Treasury of the United States of America. Each of the Forms referred to in the
foregoing clauses (C) and (D) shall include such successor and related forms as
may from time to time be adopted by the relevant taxing authorities of the
United States of America to document a claim to which such Form relates. 


                    (b)
Evidence of Deduction, Etc. Within
thirty (30) days after paying any amount to Administrative Agent or any Lender
from which it is required by law to make any deduction or withholding, and
within thirty (30) days after it is required by law to remit such deduction or
withholding to any relevant taxing or other authority, Borrower shall deliver
to Administrative Agent for delivery to such non-U.S. Person evidence
satisfactory to such Person of such deduction, withholding or payment (as the
case may be). 


                    (7)
Replacement of Lenders. If any
Lender requests compensation pursuant to Section 2.9(1) or 2.9(6),
or any Lender’s obligation to Continue Loans of any Type, or to Convert Loans
of any Type into the other Type of Loan, shall be suspended pursuant to Section
2.9(2) or 2.9(3) (any such Lender requesting such compensation, or
whose obligations are so suspended, being herein called a “Requesting Lender”), Lead Borrower,
upon three (3) Business Days notice, may require that such Requesting Lender
transfer all of its right, title and interest under this Agreement and such
Requesting Lender’s Note to any bank or other financial institution (a “Proposed Lender”) identified by Lead
Borrower that is satisfactory to Administrative Agent (i) if such Proposed
Lender agrees to assume all of the obligations of such Requesting Lender
hereunder, and to purchase all of such Requesting Lender’s Loans hereunder for
consideration equal to the aggregate outstanding principal amount of such
Requesting Lender’s Loans, together with interest thereon to the date of such
purchase (to the extent not paid by Borrower), and satisfactory arrangements
are made for payment to such Requesting Lender of all other amounts accrued and
payable hereunder to such Requesting Lender as of the date of 


39





such transfer
(including any fees accrued hereunder and any amounts that would be payable
under Section 2.9(5) as if all of such Requesting Lender’s Loans were
being prepaid in full on such date) and (ii) if such Requesting Lender has
requested compensation pursuant to Section 2.9(1) or 2.9(6), such
Proposed Lender’s aggregate requested compensation, if any, pursuant to Section
2.9(1) or 2.9(6) with respect to such Requesting Lender’s Loans is
lower than that of the Requesting Lender. Subject to the provisions of Section
12.24(2), such Proposed Lender shall be a “Lender” for all purposes
hereunder. Without prejudice to the survival of any other agreement of Borrower
hereunder, the agreements of Borrower contained in Sections 2.9(1), 2.9(6)
and 12.5 (without duplication of any payments made to such Requesting
Lender by Borrower or the Proposed Lender) shall survive for the benefit of
such Requesting Lender under this Section 2.9(7) with respect to the
time prior to such replacement. 


          Section
2.10 Administrative Fee.


          Until
payment in full of all obligations under this Agreement and the other Loan
Documents, Borrower shall pay to Administrative Agent, for its sole account
(except as agreed in writing between Administrative Agent and any Lender(s)),
the Administrative Fee in accordance with the Fee Letter. 


          Section
2.11 Exit Fee. 


          With
respect to any repayment or prepayment of principal under the Loans made on or
prior to the original Maturity Date for any reason whatsoever (whether such
repayment or prepayment of the Loans is made voluntarily or involuntarily or as
a result of the occurrence of an Event of Default pursuant to which the
Administrative Agent has accelerated the obligations of the Borrower under the
Loan Documents or otherwise), Borrower shall pay to Administrative Agent (for
the account of the Lenders in accordance with their pro rata shares), in
addition to all other amounts that may be due hereunder, an amount equal to one
quarter of one percent (0.25%) of the amount so repaid or prepaid under the Loans
(the “Exit Fee”). 


ARTICLE 3


INSURANCE,
CONDEMNATION, AND IMPOUNDS 


          Section
3.1 Insurance.


                    (1)
Borrower shall obtain and maintain, or cause to be maintained, Policies for
Borrower and the Project providing at least the following coverages: 


                    (a)
comprehensive all-risk insurance on the Improvements and the personal property,
in each case (i) in an amount equal to 100% of the “Full Replacement Cost,”
which for purposes of this Agreement shall mean actual replacement value
(exclusive of costs of excavations, foundations, underground utilities and
footings) with a waiver of depreciation, (ii) containing an agreed amount
endorsement with respect to the improvements and personal property waiving all
co insurance provisions; (iii) providing for no deductible in excess of
$50,000; (iv) providing for repairs and alteration coverage; and (v) providing
coverage for contingent liability from Operation of Building Laws, Demolition
Costs and Increased Cost of Construction Endorsements together with an
“Ordinance or Law Coverage” or “Enforcement” 


40





endorsement if
any of the Improvements or the use of the Project shall at any time constitute
legal non-conforming structures or uses. The Full Replacement Cost shall be
redetermined from time to time (but not more frequently than once in any
twenty-four (24) calendar months) at the request of Administrative Agent by an
appraiser or contractor designated by Borrower and reasonably approved by
Administrative Agent, or by an engineer or appraiser in the regular employ of
the insurer. The cost of such appraisal shall be paid by Administrative Agent
unless an Event of Default shall have occurred and be continuing, in which case
such cost shall be paid by Borrower. After the first appraisal, additional
appraisals may be based on construction cost indices customarily employed in
the trade. No omission on the part of Administrative Agent to request any such
ascertainment shall relieve Borrower of any of its obligations under this Section
3.1(1)(a); 


                    (b)
commercial general liability insurance against claims for personal injury,
bodily injury, death or property damage (including liabilities as a result of
repairs and alterations) occurring upon, in or about the Project, such
insurance (i) to be on the so called “occurrence” form with a combined single
limit of not less than $1,000,000 per occurrence and $2,000,000 general
aggregate; (ii) to continue at not less than the aforesaid limit until required
to be changed by Lender in writing by reason of changed economic conditions
making such protection inadequate; and (iii) to cover at least the following
hazards: (A) premises and operations; (B) products and completed operations on
an “if any” basis and for a period of not less than five (5) years after the
completion of construction of the applicable Improvements; (C) independent
contractors; (D) blanket contractual liability for all “insured contracts” as
defined in the standard general liability policy; and (E) contractual liability
covering the indemnities contained in Sections 5.4, 11.3 and 14.5
hereof, to the extent the same is available and falls within the definition of
“insured contracts”; 


                    (c)
business income/loss of rents insurance (i) with loss payable to Administrative
Agent (for the benefit of the Lenders); (ii) covering all risks required to be
covered by the insurance provided for in Section 3.1(1)(a) hereof; (iii)
in an amount equal to 100% of the projected gross income from the Project (on
an actual loss sustained basis) for a period continuing until the Restoration
of the Project is completed; the amount of such business income/loss of rents
insurance shall be determined prior to the date hereof and at least once each year
thereafter based on the greater of (x) Borrower’s reasonable estimate of the
gross income from the Project, and (y) the highest gross income received during
the term of the Notes for any full calendar year prior to the date the amount
of such insurance is being determined (or such lesser period as may have
expired from the date of substantial completion of the applicable Improvements
to the date the amount of such insurance is being determined), in each case for
the succeeding eighteen (18) month period and (D) containing an extended period
of indemnity endorsement which provides that after the physical loss to the
improvements and the personal property has been repaired, the continued loss of
income will be insured until such income either returns to the same level it
was at prior to the loss, or the expiration of twenty-four (24) months from the
date that the Project is repaired or replaced and operations are resumed,
whichever first occurs, and notwithstanding that the policy may expire prior to
the end of such period. All insurance proceeds payable to Administrative Agent
(for the benefit of the Lenders) pursuant to this Section 3.1(1)(c)
shall be held by Administrative Agent and shall be applied to the obligations
secured hereunder from time to time due and payable hereunder and under the
Notes and this Agreement; provided, however, that nothing herein
contained shall be deemed to relieve 


41





Borrower of
its obligations to pay the obligations secured hereunder on the respective
dates of payment provided for in the Notes and this Agreement except to the
extent such amounts are actually paid out of the proceeds of such business
income/loss of rents insurance; 


                    (d)
when required by Administrative Agent or at the discretion of Borrower, at all
times during which structural construction, repairs or alterations are being
made with respect to the Improvements in connection with any Casualty or
Condemnation Event, the insurance provided for in Section 3.1(1)(a)
shall be written in a so called builder’s risk completed value form or
equivalent coverage as part of the “all-risk” insurance (1) on a non reporting
basis, (2) against all risks insured against pursuant to Section 3.1(1)(a),
(3) shall include permission to occupy the Project, and (4) shall contain an
agreed amount endorsement waiving co insurance provisions and shall also
include coverage for: 


	
  

 	
  

 	
  

 
	
  

 	
 (i)

 	
 loss
 suffered with respect to materials, equipment, machinery, and supplies
 whether on-site, in transit, or stored off-site and with respect to temporary
 structures, hoists, sidewalks, retaining walls, and underground property; 

 
	
  

 	
  

 	
  

 
	
  

 	
 (ii)

 	
 soft costs,
 plans, specifications, blueprints and models in connection with any
 restoration following a casualty; 

 
	
  

 	
  

 	
  

 
	
  

 	
 (iii)

 	
 demolition
 and increased cost of construction, including, without limitation, increased
 costs arising out of changes in applicable law and codes;

 
	
  

 	
  

 	
  

 
	
  

 	
 (iv)

 	
 operation of
 building laws;

 
	
  

 	
  

 	
  

 
	
  

 	
 (v)

 	
 collapse,
 transit and testing; and 

 
	
  

 	
  

 	
  

 
	
  

 	
 (vi)

 	
 delayed
 opening coverage on an actual loss sustained basis with extended period of
 indemnity endorsement consistent with Section 3.1(1)(c).

 



                    (e)
workers’ compensation insurance, as required by any Governmental Authority or
legal requirement, subject to the statutory limits of the state of New York; 


                    (f)
comprehensive boiler and machinery insurance, if applicable, in amounts as
shall be reasonably required by Administrative Agent on terms consistent with
the commercial property insurance policy required under Section 3.1(1)(a);



                    (g)
if any portion of the Improvements is at any time located in an area identified
by the Secretary of Housing and Urban Development or any successor thereto as
an area having special flood hazards pursuant to the National Flood Insurance
Act of 1968, the Flood Disaster Protection Act of 1973 or the National Flood
Insurance Reform Act of 1994, as each may be amended, or any successor law (the
“Flood Insurance Acts”),
flood hazard insurance in an amount not less than the greater of (A) the
maximum limit of coverage available with respect to the Project, under Policies
issued pursuant to the Flood Insurance Acts, subject 


42





only to
customary deductibles under such Policies, and (B) the maximum limit of
coverage available with respect to the Project, under Policies issued by
private insurance carriers; 


                    (h)
earthquake insurance (based on probable maximum loss) in amounts and in form
and substance satisfactory to Administrative Agent, provided that the insurance
pursuant to this Section 3.1(1)(h) hereof shall be on terms consistent
with the all risk insurance policy required under Section 3.1(1)(a)
hereof; 


                    (i)
umbrella liability insurance in an amount not less than $100,000,000 per
occurrence on terms consistent with the commercial general liability insurance
policy required under Section 3.1(1)(b) hereof; 


                    (j)
secured creditor’s environmental insurance, insuring against unknown
environmental hazards and conditions in amounts and in form and substance
satisfactory to Administrative Agent, which shall name the Administrative Agent
as a loss payee or additional insured, as applicable; and 


                    (k)
such other insurance and in such amounts as Administrative Agent from time to
time may request against such other insurable hazards which at the time are
available on commercially reasonable terms for properties located in or around
the region where the Project is located and are customarily required by
institutional lenders with respect to projects similar to the Project. 


                    (2)
All insurance provided in compliance with Section 3.1(1)(a) hereof shall
be obtained under valid and enforceable policies (the “Policies” or in the singular, the “Policy”), in such forms and, from time
to time after the date hereof, in such amounts as may be satisfactory to
Administrative Agent, issued by financially sound and responsible insurance
companies permitted to do business in the state of New York and reasonably
approved by Administrative Agent. The insurance companies must have a claims
paying ability/financial strength rating of “AX” (or its equivalent) or better
by A.M. Best. No Policy shall contain an exclusion from coverage under such
Policy for loss or damage incurred as a result of an act of terrorism or
similar acts of sabotage, provided that Borrower may obtain separate Terrorism
Insurance coverage subject to and in accordance with the terms of this Section
3.1(2). Borrower will be required to maintain insurance against terrorism,
terrorist acts or similar acts of sabotage (“Terrorism Insurance”) with coverage amounts of not less
than an amount equal to the full replacement cost of the improvements and the
personal property (the “Terrorism Insurance
Required Amount”). Notwithstanding the foregoing sentence,
Borrower shall not be obligated to expend in any fiscal year on Insurance
Premiums for Terrorism Insurance more than two (2.0) times the then-current
annual premium paid by Borrower for the comprehensive all-risk insurance
required under subsection 3.1(1)(a) hereof (the “Terrorism Insurance Cap”) and if the
cost of the Terrorism Insurance Required Amount exceeds the Terrorism Insurance
Cap, Borrower shall purchase the maximum amount of Terrorism Insurance
available with funds equal to the Terrorism Insurance Cap; provided, however,
the Terrorism Insurance Cap shall not apply or restrict the amount of terrorism
coverage required to be obtained and maintained by this subsection (x) with
respect to the Project if (a) owners and/or operators of mixed-use
retail/office buildings in the same class as the Project in Bronx, New York are
generally obtaining terrorism insurance, (b) lenders financing such mixed-use
retail/office properties in the same class as the 


43






Project in
Bronx, New York are generally requiring terrorism insurance as a condition of
financing, or (c) Borrower or Sponsor or any Affiliate of Borrower or Sponsor,
is obtaining terrorism insurance on any other properties in Bronx, New York of
which any of the foregoing Persons own or operate. Not less than fifteen (15)
days prior to the expiration dates of the Policies theretofore furnished to
Lender pursuant to Section 3.1(1) hereof, Lead Borrower shall deliver to
Administrative Agent insurance certificates showing payment of all premiums
(the “Insurance Premiums”)
for such Policies, which certificates shall be in form and substance reasonably
satisfactory to Administrative Agent. Within sixty (60) days following the
expiration dates of the Policies, Lead Borrower shall deliver to Administrative
Agent certified copies of such Policies marked “premium paid” or accompanied by
evidence satisfactory to Administrative Agent of payment of the Insurance
Premiums. 


                    (3)
Borrower shall not obtain (a) any umbrella or blanket liability or casualty
Policy unless, in each case, such Policy is approved in advance in writing by
Administrative Agent, and Lenders’ interest is included therein as provided in
this Agreement, or (b) separate insurance concurrent in form or contributing in
the event of loss with that required in Section 3.1(1) to be furnished
by, or which may be required to be furnished by, Borrower. In the event
Borrower obtains separate insurance or an umbrella or a blanket policy, Lead Borrower
shall notify Administrative Agent of the same and shall cause certified copies
of each Policy to be delivered as required in Section 3.1(1). 


                    (4)
All Policies provided for or contemplated by Section 3.1(1) hereof,
except for the Policy referenced in Section 3.1(1)(e), shall name
Administrative Agent (for the benefit of the Lenders) as additional insured
under liability policies and as mortgagee/loss payee under property policies,
as their respective interests may appear, and in the case of property, boiler
and machinery, and flood insurance, shall contain a so called New York standard
non-contributing mortgagee clause in favor of Administrative Agent providing
that the loss thereunder shall be payable to Administrative Agent in accordance
with the terms of this Agreement and shall otherwise be in form, substance and
content reasonably acceptable to Administrative Agent. 


                    (5)
All Policies provided for in Section 3.1(1)(a) hereof shall contain
clauses or endorsements to the effect that: 


	
  

 	
  

 	
  

 
	
  

 	
 (i)

 	
 no willful
 act or negligence of Borrower, or anyone acting for Borrower, or failure to
 comply with the provisions of any Policy which might otherwise result in a
 forfeiture of the insurance or any part thereof, shall in any way affect the
 validity or enforceability of the insurance insofar as Administrative Agent
 is concerned;

 
	
  

 	
  

 	
  

 
	
  

 	
 (ii)

 	
 the Policy
 shall not be materially changed (other than to increase the coverage provided
 thereby) or cancelled without at least thirty (30) days’ written notice (or
 ten (10) days’ written notice, in the case of non-payment of premium) to
 Administrative Agent and any other party named therein as an insured;

 


44









	
  

 	
  

 	
  

 
	
  

 	
 (iii)

 	
 each Policy
 shall provide that the issuers thereof shall give written notice to
 Administrative Agent if the Policy has not been renewed fifteen (15) days
 prior to its expiration; and

 
	
  

 	
  

 	
  

 
	
  

 	
 (iv)

 	
 Administrative
 Agent shall not be liable for any insurance premiums thereon or subject to
 any assessments thereunder.

 



                    (6)
If at any time Administrative Agent is not in receipt of written evidence that
all insurance required hereunder is in full force and effect, Administrative
Agent shall have the right, on five (5) Business Days’ notice to Lead Borrower
to take such action as Administrative Agent deems necessary to protect its
interest in the Project, including, without limitation, the obtaining of such
insurance coverage as Administrative Agent in its reasonable discretion deems
appropriate, and all expenses incurred by Administrative Agent in connection
with such action or in obtaining such insurance and keeping it in effect shall
be paid by Borrower to Administrative Agent upon demand and until paid shall be
secured by the Mortgage and shall bear interest at the Default Rate. 


                    (7)
In the event of a foreclosure of the Mortgage, or other transfer of title to
the Project in extinguishment in whole or in part of the Loans all right, title
and interest of Borrower in and to the Policies then in force and all proceeds
payable thereunder shall thereupon vest in the purchaser at such foreclosure or
Administrative Agent for the benefit of the Lenders or other transferee in the
event of such other transfer of title. 


                    (8)
Lead Borrower shall give immediate written notice of any loss in excess of
$100,000 to the insurance carrier and to Administrative Agent. In connection
with losses in excess of $100,000, but less than or equal to $2,000,000,
Borrower and Administrative Agent shall cooperate in all matters related to the
loss including, without limitation, making proof of loss, adjusting and
compromising any claim under the insurance policies, appearing in and
prosecuting any action arising from such insurance policies, and collecting and
receiving insurance proceeds. In connection with losses in excess of
$2,000,000, Borrower hereby irrevocably authorizes and empowers Administrative
Agent, as attorney in fact for Borrower coupled with an interest, to make proof
of loss, to adjust and compromise any claim under insurance policies, to appear
in and prosecute any action arising from such insurance policies, to collect
and receive insurance proceeds, and to deduct therefrom Administrative Agent’s
expenses incurred in the collection of such proceeds. Nothing contained in this
Section 3.1(8), however, shall require Administrative Agent or any
Lender to incur any expense or take any action hereunder. 


          Section
3.2 Use and Application of Net Proceeds.


          The
following provisions shall apply in connection with the Restoration of the
Project: 


                    (1)
If the Net Proceeds shall be less than the Threshold Amount and the costs of
completing the Restoration shall be less than Threshold Amount, the Net
Proceeds will be disbursed by Administrative Agent to Borrower upon receipt,
provided that (a) no Event of Default and/or Low DSCR Trigger Event has
occurred and is continuing and (b) Borrower delivers to Administrative Agent a
written undertaking to expeditiously commence and to 


45





satisfactorily
complete with due diligence the Restoration in accordance with the terms of
this Agreement. 


                    (2)
If the Net Proceeds are equal to or greater than Threshold Amount or the costs
of completing the Restoration is equal to or greater than Threshold Amount
Administrative Agent shall make the Net Proceeds available for the Restoration
in accordance with the provisions of this Section 3.2. The term “Net
Proceeds” shall mean: (i) the net amount of all insurance proceeds received
by Administrative Agent pursuant to Section 3.1(1)(a), (d), (f), (g) and
(h) as a result of such damage or destruction, after deduction of its
reasonable costs and expenses (including, but not limited to, reasonable
counsel fees), if any, in collecting same (“Insurance Proceeds”), or
(ii) the net amount of the Award, after deduction of its reasonable costs and
expenses (including, but not limited to, reasonable counsel fees), if any, in
collecting same (“Condemnation Proceeds”), whichever the case may be. 


                    (a)
The Net Proceeds shall be made available to Borrower for Restoration provided
that each of the following conditions are met: 


	
  

 	
  

 	
  

 
	
  

 	
 (i)

 	
 no Event of
 Default shall have occurred and be continuing; except for the Casualty or
 Condemnation Event;

 
	
  

 	
  

 	
  

 
	
  

 	
 (ii)

 	
 (1) in the
 event the Net Proceeds are Insurance Proceeds, less than fifty percent (50%)
 of the total floor area of the improvements on the Project has been damaged,
 destroyed or rendered unusable as a result of such Casualty or (2) in the
 event the Net Proceeds are Condemnation Proceeds, less than ten percent (10%)
 of the land constituting the Project is taken, and such land is located along
 the perimeter or periphery of the Project, and no portion of the improvements
 is located on such land;

 
	
  

 	
  

 	
  

 
	
  

 	
 (iii)

 	
 Leases
 demising in the aggregate a percentage amount equal to or greater than sixty
 percent (60%) of the total rentable space in the Project which has been
 demised under executed and delivered leases in effect as of the date of the occurrence
 of such fire or other casualty or taking, whichever the case may be, shall
 remain in full force and effect during and after the completion of the
 Restoration, subject to an appropriate rent abatement (covered by loss of
 rental insurance), notwithstanding the occurrence of any such Casualty or
 Condemnation, whichever the case may be;

 
	
  

 	
  

 	
  

 
	
  

 	
 (iv)

 	
 Borrower
 shall commence the Restoration as soon as reasonably practicable (but in no
 event later than forty-five (45) days after such Casualty or Condemnation,
 whichever the case may be, occurs) and shall diligently pursue the same to
 satisfactory completion in compliance with all applicable laws, including,
 without limitation, all applicable Environmental Laws;

 


46









	
  

 	
  

 	
  

 
	
  

 	
 (v)

 	
 Administrative
 Agent shall be reasonably satisfied that any operating deficits, including
 all scheduled payments of principal and interest under the Notes, which will
 be incurred with respect to the Project as a result of the occurrence of any
 such Casualty or Condemnation, whichever the case may be, will be covered out
 of (1) the Net Proceeds, (2) the insurance coverage referred to in (iii), if
 applicable, or (3) by other funds of Borrower;

 
	
  

 	
  

 	
  

 
	
  

 	
 (vi)

 	
 Administrative
 Agent shall be reasonably satisfied that the Restoration will be substantially
 completed in accordance with applicable laws so that the tenants can legally
 and physically occupy their space on or before the earliest to occur of (1)
 three (3) months prior to the Maturity Date, (2) twelve (12) months after the
 occurrence of such Casualty or Condemnation, or (3) such time as may be
 required under applicable law, in order to repair and restore the Project to
 the condition it was in immediately prior to such Casualty or Condemnation or
 (4) the expiration of the insurance coverage referred to in Section
 3.1(1)(c);

 
	
  

 	
  

 	
  

 
	
  

 	
 (vii)

 	
 the Project
 and the use thereof after the Restoration will be in compliance with and
 permitted under all applicable laws;

 
	
  

 	
  

 	
  

 
	
  

 	
 (viii)

 	
 Administrative
 Agent shall be satisfied that the Debt Service Coverage Ratio after the
 completion of the Restoration shall be equal to or greater than the Debt
 Service Coverage Ratio immediately prior to the Casualty or Condemnation, as
 applicable;

 
	
  

 	
  

 	
  

 
	
  

 	
 (ix)

 	
 such
 Casualty or Condemnation, as applicable, does not result in the total and
 permanent (following the Restoration) loss of access to the Project or the
 related improvements;

 
	
  

 	
  

 	
  

 
	
  

 	
 (x)

 	
 Borrower
 shall deliver, or cause to be delivered, to Administrative Agent a signed
 detailed budget approved in writing by Borrower’s architect or engineer
 stating the entire cost of completing the Restoration, which budget shall be
 acceptable to Administrative Agent;

 
	
  

 	
  

 	
  

 
	
  

 	
 (xi)

 	
 the Net
 Proceeds together with any cash or letter of credit deposited by Borrower
 with Administrative Agent are sufficient in Administrative Agent’s reasonable
 discretion to cover the cost of the Restoration; and

 
	
  

 	
  

 	
  

 
	
  

 	
 (xii)

 	
 the Property
 Management Agreement in effect as of the date of the occurrence of such
 Casualty or Condemnation, whichever the case may be, shall (1) remain in full
 force and effect during the Restoration and shall not otherwise terminate as
 a result of the Casualty or Condemnation or the Restoration or (2) if
 terminated,

 


47









	
  

 	
  

 	
  

 
	
  

 	
  

 	
 shall have
 been replaced with a replacement Property Management Agreement with a
 qualified Property Manager, prior to the opening or reopening of the Project
 or any portion thereof for business with the public.

 



                    (b)
The Net Proceeds shall be held by Administrative Agent in an interest bearing
account (with interest to be available to Borrower to the same extent as Net
Proceeds are made available pursuant to the terms of this Section 3.2)
and, until disbursed in accordance with the provisions of this Section 3.2,
shall constitute additional security for the Loans and other obligations under
the Loan Documents. The Net Proceeds shall be disbursed by Administrative Agent
to, or as directed by, Lead Borrower from time to time during the course of the
Restoration, upon receipt of evidence reasonably satisfactory to Administrative
Agent that (A) all materials installed and work and labor performed (except to
the extent that they are to be paid for out of the requested disbursement) in
connection with the Restoration have been paid for in full (less Casualty
Retainage), and (B) there exist no notices of pendency, stop orders, mechanic’s
or materialman’s liens or notices of intention to file same, or any other Liens
or encumbrances of any nature whatsoever on the Project which have not either
been fully bonded to the reasonable satisfaction of Administrative Agent and
discharged of record or in the alternative fully insured to the reasonable
satisfaction of Administrative Agent by the title company issuing the title
insurance policy. 


                    (c)
All plans and specifications required in connection with the Restoration, the
cost of which is greater than the Threshold Amount, shall be subject to prior review and acceptance (which shall
not be unreasonably withheld, conditioned or delayed) in all material respects
by Administrative Agent and by an independent consulting engineer selected by
Administrative Agent (the “Casualty Consultant”). Administrative Agent
shall have the use of the plans and specifications and all permits, licenses
and approvals required or obtained in connection with the Restoration. The
identity of the contractors, subcontractors and materialmen engaged in the
Restoration the cost of which is greater than the Threshold Amount, as well as
the contracts under which they have been engaged, shall be subject to prior
review and acceptance by Administrative Agent and the Casualty Consultant. All
costs and expenses incurred by Administrative Agent in connection with making
the Net Proceeds available for the Restoration including, without limitation, reasonable
counsel fees and disbursements and the Casualty Consultant’s fees, shall be
paid by Borrower. 


                    (d)
In no event shall Administrative Agent be obligated to make disbursements of
the Net Proceeds in excess of an amount equal to the costs actually incurred
from time to time for work in place as part of the Restoration, as certified by
the Casualty Consultant, minus the Casualty Retainage. The term “Casualty
Retainage” shall mean an amount equal to ten percent (10%) of the costs actually
incurred for work in place as part of the Restoration, as certified by the
Casualty Consultant, until the Restoration has been completed. The Casualty
Retainage shall in no event, and notwithstanding anything to the contrary set
forth above in this Section 3.2(2), be less than the amount actually
held back by Borrower from contractors, subcontractors and materialmen engaged
in the Restoration (but shall not be duplicative of such amounts actually held
back by Borrower). The Casualty Retainage shall not be released until the
Casualty Consultant certifies to Administrative Agent that the Restoration has
been completed in accordance with the provisions of this Section 3.2 and
that all approvals 


48





necessary for
the re-occupancy and use of the Project have been obtained from all appropriate
Governmental Authorities, and Administrative Agent receives evidence
satisfactory to Administrative Agent that the costs of the Restoration have
been paid in full or will be paid in full out of the Casualty Retainage; provided,
however, that Administrative Agent will release the portion of the Casualty
Retainage being held with respect to any contractor, subcontractor or
materialman engaged in the Restoration as of the date upon which the Casualty
Consultant certifies to Administrative Agent that the contractor, subcontractor
or materialman has satisfactorily completed all work and has supplied all
materials in accordance with the provisions of the contractor’s,
subcontractor’s or materialman’s contract, the contractor, subcontractor or
materialman delivers the lien waivers and evidence of payment in full of all
sums due to the contractor, subcontractor or materialman as may be reasonably
requested by Administrative Agent or by the title company issuing the title
insurance policy for the Project, and receives an endorsement to such title
insurance policy insuring the continued priority of the Lien of the Mortgage
and evidence of payment of any premium payable for such endorsement. If
required by Administrative Agent, the release of any such portion of the
Casualty Retainage shall be approved by the surety company, if any, which has
issued a payment or performance bond with respect to the contractor,
subcontractor or materialman. 


                    (e)
Administrative Agent shall not be obligated to make disbursements of the Net
Proceeds more frequently than once every calendar month. 


                    (f)
If at any time the Net Proceeds or the undisbursed balance thereof shall not,
in the opinion of Administrative Agent in consultation with the Casualty
Consultant, if any, be sufficient to pay in full the balance of the costs which
are estimated by the Casualty Consultant to be incurred in connection with the
completion of the Restoration, Borrower shall deposit the deficiency (the “Net Proceeds Deficiency”), either in
cash or a letter of credit, with Administrative Agent before any further
disbursement of the Net Proceeds shall be made. The Net Proceeds Deficiency
deposited with Administrative Agent shall be held by Administrative Agent in
the Casualty/Taking Account in accordance with the Cash Management Agreement
and shall be disbursed for costs actually incurred in connection with the
Restoration on the same conditions applicable to the disbursement of the Net
Proceeds, and until so disbursed pursuant to Section 3.2 hereof shall
constitute additional security for the Loans and other obligations under the
Loan Documents. 


                    (g)
The excess, if any, of the Net Proceeds and the remaining balance, if any, of
the Net Proceeds Deficiency deposited with Administrative Agent after the
Casualty Consultant certifies to Administrative Agent that the Restoration has
been completed in accordance with the provisions of Section 3.2, hereof
and the receipt by Administrative Agent of evidence satisfactory to
Administrative Agent that all costs incurred in connection with the Restoration
have been paid in full, shall be remitted by Administrative Agent to Lead
Borrower, provided no Event of Default shall have occurred and shall be
continuing. 


                    (3)
All Net Proceeds not required (i) to be made available for the Restoration or
(ii) to be returned to Lead Borrower as excess Net Proceeds pursuant to Section
3.2(2)(g) hereof may be retained and applied by Administrative Agent toward
the payment of the Loans (without any prepayment premium) whether or not then
due and payable in such order, priority and proportions as Administrative Agent
in its sole and absolute discretion shall deem proper, or, 


49





at the sole
and absolute discretion of Administrative Agent, the same may be paid, either
in whole or in part, to Lead Borrower for such purposes as Administrative Agent
shall approve, in its sole and absolute discretion. If Administrative Agent
shall receive and retain Net Proceeds, the Lien of the Mortgage shall be
reduced only by the amount thereof received and retained by Administrative
Agent and actually applied by Administrative Agent in reduction of the Loans. 


          Section
3.3 Casualty and Condemnation.


                    (a)
If the Project shall be damaged or destroyed, in whole or in part, by fire or
other casualty (a “Casualty”), Borrower shall give prompt notice of such
damage to Administrative Agent and shall promptly commence and diligently
prosecute the completion of the Restoration of the Project as nearly as
possible to the condition the Project was in immediately prior to such
Casualty, with such alterations as may be reasonably approved by Administrative
Agent and otherwise in accordance with Section 3.2 hereof. Borrower
shall pay all costs of such Restoration whether or not such costs are covered
by insurance (provided that, if Net Proceeds are required to be made available
to Borrower for Restoration pursuant to the terms of Section 3.2 hereof,
they are made available to Borrower for Restoration). Administrative Agent may,
but shall not be obligated to, make proof of loss if not made promptly by
Borrower. 


                    (b)
Lead Borrower shall promptly give Administrative Agent notice of the actual or
threatened commencement of any proceeding for the Condemnation of all or any
part of the Project and shall deliver to Administrative Agent copies of any and
all papers served in connection with such proceedings. Administrative Agent may
participate in any such proceedings, and Borrower shall, from time to time,
deliver to Administrative Agent all instruments reasonably requested by it to
permit such participation. Borrower shall, at its expense, diligently prosecute
any such proceedings, and shall consult with Administrative Agent, its
attorneys and experts, and cooperate with them in the carrying on or defense of
any such proceedings. Notwithstanding any taking by any public or quasi public
authority through Condemnation or otherwise (including, but not limited to, any
transfer made in lieu of or in anticipation of the exercise of such taking),
Borrower shall continue to pay the Loans at the time and in the manner provided
for its payment in the Notes and in this Agreement and the Loans shall not be
reduced until any Award shall have been actually received and applied by
Administrative Agent, after the deduction of expenses of collection, to the
reduction or discharge of the Loans. Administrative Agent and the Lenders shall
not be limited to the interest paid on the Award by the condemning authority
but shall be entitled to receive out of the Award interest at the rate or rates
provided herein or in the Notes. If the Project or any portion thereof is taken
by a condemning authority, Borrower shall, promptly commence and diligently
prosecute the Restoration of the Project and otherwise comply with the
provisions of Section 3.2 hereof. If the Project is sold, through
foreclosure or otherwise, prior to the receipt by Administrative Agent of the
Award, Administrative Agent shall have the right, whether or not a deficiency
judgment on the Notes shall have been sought, recovered or denied, to receive
the Award, or a portion thereof sufficient to pay the Loans. 


50






ARTICLE 4


RESERVES; COLLATERAL LETTERS OF CREDIT


          Section
4.1 Real Estate Tax and Insurance Reserve Fund.


                    (1)
Deposits. On the Closing Date, Borrower shall deposit with
Administrative Agent the amount of $213,645.46, which amount shall be held by
Administrative Agent and disbursed by Administrative Agent in accordance with
the terms of Section 4.1(2) (with such disbursements that would have
been made by Depository Bank to be made directly by Administrative Agent) until
such time as the Cash Management Agreement has been entered into, at which time
Administrative Agent shall deposit any remaining amounts held by it and not
disbursed pursuant hereto into the Tax and Insurance Reserve Account. On each
Payment Date, Borrower shall deposit with Administrative Agent, for deposit in
the Tax and Insurance Reserve Account, (i) a monthly amount, as determined by
Administrative Agent, which will be sufficient to accumulate with
Administrative Agent thirty (30) days prior to each due date therefor
sufficient funds to pay all real estate taxes which Administrative Agent
estimates will be payable during the next ensuing twelve (12) months, and (ii)
a monthly amount, as determined by Administrative Agent, which will be
sufficient to accumulate with Administrative Agent thirty (30) days prior to
the expiration of the insurance policies sufficient funds to pay all premiums
which Administrative Agent estimates will be payable for the renewal of the
coverage afforded by the insurance policies during the next ensuing twelve (12)
months (said amounts in clauses (i) and (ii) above, together with
the amount set forth in the first sentence of this Section 4.1(1),
being, collectively, the “Tax and Insurance Reserve Fund”). If at any
time Administrative Agent reasonably determines that the Tax and Insurance
Reserve Fund is not or will not be sufficient to pay real estate taxes and
insurance premiums by the dates set forth in clauses (i) and (ii)
above, Administrative Agent shall notify Lead Borrower of such determination
and Borrower shall increase its monthly payments to Administrative Agent by the
amount that Administrative Agent estimates is sufficient to make up the
deficiency thirty (30) days prior to delinquency of the real estate taxes
and/or thirty (30) days prior to expiration of the insurance policies, as the
case may be. Notwithstanding the foregoing, and provided that no Event of
Default has occurred and is continuing, if Borrower has an umbrella insurance
policy that: (x) provides acceptable coverage for the Project, (y) is in full
force and effect, and (z) is acceptable to Administrative Agent in its sole
discretion, then Borrower shall not be required to make the deposits set forth
in clause (ii) above with respect to the renewal of insurance policies. 


                    (2)
Disbursements. Borrower shall furnish Administrative Agent with (i)
bills for the charges for which such deposits are required and (ii) a
disbursement request (in a form reasonably satisfactory to Administrative
Agent), executed by an authorized officer of Borrower, at least thirty (30)
days prior to the date on which the charges first become payable. Provided that
no Event of Default exists, Administrative Agent will direct the Depository
Bank to apply the Tax and Insurance Reserve Fund to payments of insurance
premiums and real estate taxes required to be made by Borrower pursuant to Sections
3.1 and 9.2, respectively, and under the Mortgage but not, in any
event, earlier than ten (10) days prior to the due dates thereof. In making any
payment relating to the Tax and Insurance Reserve Fund, the Depository Bank may
do so according to any bill, statement or estimate procured from the
appropriate public office (with respect to real estate taxes) or insurer or
agent (with respect to insurance premiums), 


51





without
inquiry into the accuracy of such bill, statement or estimate or into the
validity of any tax, assessment, sale, forfeiture, tax lien or title or claim
thereof unless said bill, statement or estimate is obviously incorrect. If the
amount of the Tax and Insurance Reserve Fund shall exceed the amounts due for
real estate taxes and insurance premiums pursuant to Sections 3.1 and 9.2,
respectively, Administrative Agent shall, in its sole and absolute discretion,
return any excess to Lead Borrower or credit such excess against future
payments to be made to the Tax and Insurance Reserve Fund. Provided that on the
date that said real estate taxes are due and payable, no Event of Default
exists and sufficient funds are on deposit in the Tax and Insurance Reserve
Fund to pay real estate taxes, Borrower shall not be liable to pay and shall
not be charged with any late charges, interest and/or penalties imposed by or
payable to any Governmental Authority as a result of the Depository Bank’s
failure to pay real estate taxes prior to the date that same become delinquent.



          Section
4.2 Tenant Improvement/Leasing Reserve Letter of Credit. 


          Borrower
shall provide to Administrative Agent for the benefit of the Lenders an unconditional,
irrevocable standby letter of credit (the “TI/LC
Letter of Credit”) in the amount of $4,610,000.00 to be used for
the payment of future tenant improvements and leasing commissions, which TI/LC
Letter of Credit conforms with the requirements of a Collateral Letter of
Credit (except that the TI/LC Letter of Credit delivered on the Closing Date
only shall not be required to include an “evergreen” automatic renewal
provision). The amount of the TI/LC Letter of Credit shall be reduced, upon the
written request of Borrower made not more than once per calendar month, in
connection with the payment by Borrower of amounts for tenant improvements and
leasing commissions for newly executed leases entered into at the Project which
have been approved by Administrative Agent or are deemed approved pursuant to
Section 6.2 hereof. Reductions to the TI/LC Letter of Credit shall be
calculated using a tenant improvement allowance equal to the lesser of actual
tenant improvement costs or $20.00 per net leasable square foot and reductions
for leasing commissions shall be calculated using a leasing commissions
allowance equal to the lesser of actual leasing commissions or $26.58 per net
leasable square foot. The TI/LC Letter of Credit shall be subject to each of the
terms and conditions set forth in Section 4.5 with respect to a Collateral
Letter of Credit subject to the following additional terms: 


                    (1)
The TI/LC Letter of Credit delivered on the Closing Date shall have an expiry
date no earlier than February 1, 2010. At least thirty (30) days prior to the
expiration date of such TI/LC Letter of Credit and each renewal and extension
thereof Borrower shall deliver to Administrative Agent either (i) a
replacement, extension or renewal TI/LC Letter of Credit, in accordance with
the terms hereof, or (ii) notice that such replacement, extension or renewal
TI/LC Letter of Credit shall not be delivered. 


                    (2)
Following a draw by Administrative Agent on the TI/LC Letter of Credit solely
because of the failure to furnish Administrative Agent with a replacement or
renewal of the TI/LC Letter of Credit, Administrative Agent will deposit such
proceeds in the Additional Cash Collateral Account as security for the purposes
for which such TI/LC Letter of Credit was delivered. Administrative Agent shall
be entitled to draw upon such deposited proceeds to the same extent it would
have been entitled to make a draw under the TI/LC Letter of Credit and such
deposited proceeds shall be subject to disbursement to Borrower on the same
basis as 


52





reductions to
the TI/LC Letter of Credit are calculated, as described above. Administrative
Agent shall direct the Depository Bank to disburse the full remaining amount of
such proceeds to Borrower provided (i) Borrower delivers to Administrative
Agent a replacement TI/LC Letter of Credit acceptable to Administrative Agent
in its sole discretion, (ii) there exists no Event of Default or Potential
Default, and (iii) Borrower pays all of Administrative Agent’s fees and
expenses in connection with such draw and disbursement. 


                    (3)
In the event that Borrower fails to deliver to Administrative Agent a
replacement, extension or renewal TI/LC Letter of Credit in accordance with the
terms hereof, and Administrative Agent does not draw on the TI/LC Letter of
Credit prior to its expiry date then Borrower shall furnish such replacement,
extension or renewal TI/LC Letter of Credit or Additional Cash Collateral in
the required amount of such TI/LC Letter of Credit no later than ten (10) days
after the expiry date of such TI/LC Letter of Credit. 


          Section
4.3 Reserved.


          Section 4.4 Reserve Funds and Security Accounts
Generally. 


                    (1)
Grant of Security Interest. Borrower hereby grants a perfected first
priority security interest in favor of Administrative Agent for the ratable
benefit of the Lenders in each Reserve Fund and Security Account established by
or for it hereunder and all financial assets and other property and sums at any
time held, deposited or invested therein, and all security entitlements and
investment property relating thereto, together with any interest or other
earnings thereon, and all proceeds thereof, whether accounts, general
intangibles, chattel paper, deposit accounts, instruments, documents or
securities (collectively, “Reserve Account Collateral”), together with
all rights of a secured party with respect thereto (even if no further
documentation is requested by Administrative Agent or the Lenders or executed
by Borrower). 


                    (a)
Borrower covenants and agrees: 


	
  

 	
  

 
	
  

 	
                     (A)
 to do all acts that may be reasonably necessary to maintain, preserve and
 protect Reserved Account Collateral; 

 
	
  

 	
  

 
	
  

 	
                     (B)
 to pay promptly when due all material taxes, assessments, charges,
 encumbrances and liens now or hereafter imposed upon or affecting any
 Reserved Account Collateral; 

 
	
  

 	
  

 
	
  

 	
                     (C)
 to appear in and defend any action or proceeding which may materially and
 adversely affect Borrower’s title to or Administrative Agent’s interest in
 the Reserved Account Collateral; 

 
	
  

 	
  

 
	
  

 	
                     (D)
 following the creation of each Reserve Fund and Security Account established
 by or for Borrower and the initial funding thereof, other than to
 Administrative Agent pursuant to this Agreement or the Cash Management
 Agreement, not to transfer, assign, sell, surrender, encumber, mortgage,
 hypothecate, or otherwise dispose of any of the Reserve Account Collateral or
 rights or interests therein, and to keep the Reserve Account Collateral free
 of all levies and security interests or other liens or charges except the
 security interest in favor of Administrative Agent granted 

 


53









	
  

 	
  

 
	
  

 	
 hereunder; 

 
	
  

 	
  

 
	
  

 	
                     (E) to
 account fully for and promptly deliver to Administrative Agent, in the form
 received, all documents, chattel paper, instruments and agreements
 constituting the Reserve Account Collateral hereunder, endorsed to
 Administrative Agent or in blank, as requested by Administrative Agent, and
 accompanied by such powers as appropriate and until so delivered all such
 documents, instruments, agreements and proceeds shall be held by Borrower in
 trust for Administrative Agent, separate from all other property of Borrower;
 and 

 
	
  

 	
  

 
	
  

 	
                     (F) from
 time to time upon request by Administrative Agent, to furnish such further
 assurances of Borrower’s title with respect to the Reserve Account
 Collateral, execute such written agreements, or do such other acts, all as
 may be reasonably necessary to effectuate the purposes of this agreement or
 as may be required by law, or in order to perfect or continue the
 first-priority lien and security interest of Administrative Agent in the
 Reserve Account Collateral. 

 



                    (2)
Rights on Event of Default. Upon the occurrence and during the
continuance of an Event of Default, Administrative Agent, at its option, may
withdraw the Reserve Funds and the other funds in the Security Accounts and
apply such funds to the items for which the Reserve Funds were established or
to payment of the Loans in such order, proportion and priority as
Administrative Agent may determine in its sole and absolute discretion.
Administrative Agent’s right to withdraw and apply such funds shall be in
addition to all other rights and remedies provided to Administrative Agent on
behalf of the Lenders under the Loan Documents. 


                    (3)
Prohibition Against Further Encumbrance. Borrower shall not, without the
prior consent of Administrative Agent, further pledge, assign or grant any
security interest in the Reserve Funds or the Security Accounts or permit any
Lien to attach thereto, or any levy to be made thereon, or any Uniform
Commercial Code financing statements, except those naming Administrative Agent
on behalf of the Lenders as the secured party, to be filed with respect
thereto. 


                    (4)
Release of Reserve Funds. Any amount remaining in the Reserve Funds and
the Security Accounts after the Loans have been paid in full shall be promptly
returned to Borrower. 


          Section 4.5 Collateral Letters of Credit.
With respect to any Collateral Letter of Credit which Borrower may furnish or
cause to be furnished to Administrative Agent in accordance with the terms of
this Agreement or any of the other Loan Documents: 


                    (1)
Administrative Agent will be entitled, among other things, to make one or more
draws by presentment thereof to the issuing bank accompanied only by
Administrative Agent’s clean sight-draft, it being intended that the issuing
bank shall have no right to inquire as to Administrative Agent’s right to draw
upon such Collateral Letter of Credit; 


                    (2)
Administrative Agent shall be entitled, among other things, to draw upon each
Collateral Letter of Credit, in whole, or in part from time to time, upon the
occurrence and 


54





during the
continuance of any Event of Default or under the other circumstances under
which a draw shall be permitted under the Loan Documents or the Collateral
Letter of Credit; 


                    (3)
Administrative Agent shall have the right to draw upon any Collateral Letter of
Credit within thirty (30) days prior to the expiration date of such Collateral
Letter of Credit and each renewal and extension thereof unless, at least thirty
(30) days prior to such expiration date of such Collateral Letter of Credit and
each renewal and extension thereof, Borrower shall have furnished a
replacement, extension or renewal Collateral Letter of Credit, acceptable to
Administrative Agent, it being the intent hereof that at no time shall the
unexpired term of any Collateral Letter of Credit be less than thirty (30)
days. If Administrative Agent draws upon a Collateral Letter of Credit pursuant
to the terms of this subsection (3), then Administrative Agent shall
hold the proceeds thereof in the Additional Cash Collateral Account as
additional collateral for the Obligations, to be applied in accordance with subsections
(4) and (5) below. 


                    (4)
Administrative Agent shall also be entitled to draw upon a Collateral Letter of
Credit if Administrative Agent believes that its rights to draw on such
Collateral Letter of Credit could be in jeopardy. Without limiting the
foregoing, Administrative Agent shall also be entitled to draw on a Collateral
Letter of Credit if the credit rating or financial condition of the issuing
bank is no longer meets the minimum rating contained in the definition of
Collateral Letter of Credit. Following a draw by Administrative Agent on a
Collateral Letter of Credit solely because of the deterioration of the
creditworthiness of the issuing bank, Administrative Agent will deposit such
proceeds in the Additional Cash Collateral Account as security for the purposes
for which such Letter of Credit was delivered and Administrative Agent shall be
entitled to draw upon such proceeds to the same extent it would have been
entitled to make a draw under the applicable Letter of Credit. Administrative
Agent shall direct the Depository Bank to disburse such proceeds to Borrower
provided (i) Borrower delivers to Administrative Agent a replacement Collateral
Letter of Credit within ten (10) days of Administrative Agent’s draw, (ii)
there exists no Event of Default or Potential Default, and (iii) Borrower pays
all of Administrative Agent’s fees and expenses in connection with such draw
and disbursement. 


                    (5)
No draw by Administrative Agent on any Collateral Letter of Credit shall cure
or be deemed to cure any Event of Default or limit in any respect any of Administrative
Agent’s or the Lenders’ remedies under the Loan Documents, it being understood
that Administrative Agent’s and the Lenders’ rights and remedies hereunder
shall be cumulative and Administrative Agent and the Lenders shall have no
obligations to apply the proceeds of any draw to missed installments or other
amounts then due and unpaid under the Loans. Proceeds of any draw upon a
Collateral Letter of Credit (after reimbursement of any costs and expenses,
including attorneys’ fees and reimbursements, incurred by Administrative Agent
in connection with such draw) may be applied by Administrative Agent to the
payment of the Loans in such manner as Administrative Agent may determine. No
delay or omission of Administrative Agent or the Lenders in exercising any
right to draw on a Collateral Letter of Credit shall impair any such right, or
shall be construed as a waiver of, or acquiescence in, any Event of Default. 


                    (6)
Administrative Agent shall, upon request, release its rights in any Collateral
Letters of Credit and surrender such Collateral Letters of Credit to the
issuing bank upon the payment in full of all Loans. 


55






ARTICLE 5


ENVIRONMENTAL MATTERS


          Section 5.1 Certain Definitions. As used herein, the following terms
have the meanings indicated: 


                    (1)
“Environmental Claim”
means, with respect to any Person, any written request for information by a
Governmental Authority, or any written notice, notification, claim,
administrative, regulatory or judicial action, suit, judgment, demand or other
written communication by any Person or Governmental Authority alleging or
asserting liability with respect to Borrower or the Project, whether for
damages, contribution, indemnification, cost recovery, compensation, injunctive
relief, investigatory, response, remediation, damages to natural resources,
personal injuries, fines or penalties arising out of, based on or resulting
from (i) the presence, use or release into the environment of any Hazardous
Materials originating at or from, or otherwise affecting, the Project, (ii) any
fact, circumstance, condition or occurrence forming the basis of any violation,
or alleged violation, of any Environmental Law by Borrower or otherwise
affecting the health, safety or environmental condition of the Project or (iii)
any alleged injury or threat of injury to the environment by Borrower or
otherwise affecting the Project. 


                    (2)
“Environmental Laws” means
any federal, state or local law (whether imposed by statute, or administrative
or judicial order, or common law), now or hereafter enacted and applicable to
the Project, governing health, safety, industrial hygiene, the environment or
natural resources, or Hazardous Materials, including, such laws governing or
regulating the use, generation, storage, removal, recovery, treatment,
handling, transport, disposal, control, discharge of, or exposure to, Hazardous
Materials. 


                    (3)
“Environmental Liens” has
the meaning assigned to such term in Section 5.3(4). 


                    (4)
“Environmental Loss” means
any losses, damages, costs, fees, expenses, claims, suits, judgments, awards,
liabilities (including but not limited to strict liabilities), obligations,
debts, diminutions in value, fines, penalties, charges, costs of remediation
(whether or not performed voluntarily), amounts paid in settlement, foreseeable
and unforeseeable consequential damages, litigation costs, reasonable
attorneys’ fees and expenses, engineers’ fees, environmental consultants’ fees,
and investigation costs (including but not limited to costs for sampling,
testing and analysis of soil, water, air, building materials, and other
materials and substances whether solid, liquid or gas), of whatever kind or
nature, and whether or not incurred in connection with any judicial or
administrative proceedings, actions, claims, suits, judgments or awards
relating to Hazardous Materials, Environmental Claims, Environmental Liens and
violation of Environmental Laws. 


                    (5)
“Hazardous Materials” means
(a) petroleum or chemical products, whether in liquid, solid, or gaseous form,
or any fraction or by-product thereof, (b) asbestos or asbestos-containing
materials, (c) polychlorinated biphenyls (pcbs), (d) radon gas, (e) underground
storage tanks, (f) any explosive or radioactive substances, (g) lead or
lead-based 


56





paint, (h)
Mold, or (i) any other substance, material, waste or mixture which is or shall
be listed, defined, or otherwise determined by any Governmental Authority to be
hazardous, toxic, dangerous or otherwise regulated, controlled or giving rise
to liability under any Environmental Laws. 


                    (6)
“Mold” means any microbial
or fungus contamination or infestation in any Project of a type that could
reasonably be anticipated (after due inquiry and investigation) to pose a risk
to human health or the environment or could reasonably be anticipated (after
due inquiry and investigation) to negatively impact the value of the affected
Property in any material respect. 


          Section 5.2 Representations and Warranties on Environmental Matters.


Borrower represents and
warrants to Administrative Agent and the Lenders that, to Borrower’s knowledge,
except as set forth in the Site Assessment, (1) no Hazardous Material is now or
was formerly used, stored, generated, manufactured, installed, treated,
discharged, disposed of or otherwise present at or about the Project or any
property adjacent to the Project (except for cleaning and other products
currently used in connection with the routine maintenance or repair of the
Project and de minimus quantities used by tenants in the normal course of
business in full compliance with Environmental Laws), (2) all permits,
licenses, approvals and filings required by Environmental Laws have been
obtained, and the use, operation and condition of the Project do not, and did
not previously, violate any Environmental Laws, (3) no civil, criminal or
administrative action, suit, claim, hearing, investigation or proceeding has
been brought or been threatened, nor have any settlements been reached by or
with any parties or any Liens imposed in connection with the Project concerning
Hazardous Materials or Environmental Laws and (4) no underground storage tanks
exist at the Project. 


          Section 5.3 Covenants on Environmental Matters.


                    (1)
Borrower shall (a) comply strictly and in all respects with applicable
Environmental Laws; (b) notify Administrative Agent immediately upon Borrower’s
discovery of any spill, discharge, release or presence of any Hazardous
Material at, upon, under, within, contiguous to or otherwise affecting the
Project; (c) promptly remove such Hazardous Materials and remediate the Project
in full compliance with Environmental Laws and as reasonably recommended to
preserve the value and/or use of the Project, in accordance with the reasonable
recommendations and specifications of an independent environmental consultant
approved by Administrative Agent; and (d) promptly forward to Administrative
Agent copies of all orders, notices, permits, applications or other
communications and reports in connection with any spill, discharge, release or
the presence of any Hazardous Material or any other matters relating to the
Environmental Laws or any similar laws or regulations, as they may affect the
Project or Borrower. 


                    (2)
Borrower shall not cause, shall prohibit any other Person within the control of
Borrower from causing, and shall use prudent, commercially reasonable efforts
to prohibit other Persons (including tenants) from causing (a) any spill,
discharge or release, or the use, storage, generation, manufacture, installation,
or disposal, of any Hazardous Materials at, upon, under, within or about the
Project or the transportation of any Hazardous Materials to or from the Project
(except for cleaning and other products used in connection with the routine 


57





maintenance or
repair of the Project in full compliance with Environmental Laws), (b) any
underground storage tanks to be installed at the Project, or (c) any activity
that requires a permit or other authorization under Environmental Laws to be
conducted at the Project. 


                    (3)
Lead Borrower shall provide to Administrative Agent, at Borrower’s expense
promptly upon the written request of Administrative Agent from time to time, a
Site Assessment or, if required by Administrative Agent, an update to any
existing Site Assessment, to assess the presence or absence of any Hazardous
Materials and the potential costs in connection with abatement, cleanup or
removal of any Hazardous Materials found on, under, at or within the Project.
Borrower shall pay the cost of no more than one such Site Assessment or update
in any twelve (12)-month period, unless Administrative Agent’s request for a
Site Assessment is based on information provided under Section 5.3(1), a
reasonable suspicion of Hazardous Materials at or near the Project, a breach of
representations under Section 5.2, or an Event of Default, in which case
any such Site Assessment or update shall be at Borrower’s expense. 


                    (4)
Environmental Notices. Lead
Borrower shall promptly provide notice to Administrative Agent of: 


                    (a)
all Environmental Claims asserted or threatened against Borrower or any other
party occupying the Project or any portion thereof or against the Project which
become known to Borrower; 


                    (b)
the discovery by Borrower of any occurrence or condition on the Project or on
any real property adjoining or in the vicinity of the Project which could
reasonably be expected to lead to an Environmental Claim against Borrower,
Administrative Agent or any of the Lenders; 


                    (c)
the commencement or completion of any environmental remediation at the Project;
and 


                    (d)
any Lien or other encumbrance imposed pursuant to any Environmental Law “Environmental
Liens”. 


In connection
therewith, Lead Borrower shall transmit to Administrative Agent copies of any
citations, orders, notices or other written communications received from any
Person and any notices, reports or other written communications submitted to
any Governmental Authority with respect to the matters described above. 


          Section 5.4 Allocation of Risks and Indemnity. As between Borrower,
Administrative Agent and the Lenders, all risk of loss associated with
non-compliance with Environmental Laws, or with the presence of any Hazardous
Material at, upon, within, contiguous to or otherwise affecting the Project,
shall lie solely with Borrower. Accordingly, Borrower shall bear all risks and
costs associated with any Environmental Loss, damage or liability therefrom,
including all costs of removal of Hazardous Materials or other remediation
required hereunder or by law. Borrower shall indemnify, defend and hold
Administrative Agent and the Lenders harmless from and against all loss,
liabilities, damages, claims, costs and expenses (including reasonable costs of
defense) arising out of or associated, in any way, with 


58





the
non-compliance with Environmental Laws, or the existence of Hazardous Materials
in, on, or about the Project, or a breach of any representation, warranty or
covenant contained in this Article 5, whether based in contract, tort,
implied or express warranty, strict liability, criminal or civil statute or
common law, including those arising from the joint, concurrent, or comparative
negligence of Administrative Agent and the Lenders; provided, however,
Borrower shall not be liable under such indemnification to the extent such
loss, liability, damage, claim, cost or expense results solely from
Administrative Agent’s or any Lender’s gross negligence or willful misconduct.
Borrower’s obligations under this Section 5.4 shall arise upon the
discovery of the presence of any Hazardous Material, whether or not any
Governmental Authority has taken or threatened any action in connection with
the presence of any Hazardous Material, and whether or not the existence of any
such Hazardous Material or potential liability on account thereof is disclosed
in the Site Assessment and shall continue notwithstanding the repayment of the
Loans or any transfer or sale of any right, title and interest in the Project
(by foreclosure, deed in lieu of foreclosure or otherwise). 


          Section 5.5 No Waiver. Notwithstanding any provision in this Article
5 or elsewhere in the Loan Documents, or any rights or remedies granted by
the Loan Documents, Administrative Agent and the Lenders do not waive and
expressly reserve all rights and benefits now or hereafter accruing to
Administrative Agent and/or any Lenders under the “security interest” or
“secured creditor” exception under applicable Environmental Laws, as the same
may be amended. No action taken by Administrative Agent and/or any Lender
pursuant to the Loan Documents shall be deemed or construed to be a waiver or
relinquishment of any such rights or benefits under the “security interest
exception.” 


ARTICLE 6


LEASING MATTERS


          Section 6.1 Representations and Warranties on Leases. Borrower
represents and warrants to Administrative Agent and the Lenders with respect to
leases of the Project that: (1) to Borrower’s knowledge, the rent roll
delivered to Administrative Agent is true and correct, and the leases are valid
and in and full force and effect; (2) the leases (including amendments) are in
writing, and there are no oral agreements with respect thereto; (3) the copies
of the leases delivered to Administrative Agent are true and complete; (4) to
Borrower’s knowledge, neither the landlord nor any tenant is in default under
any of the leases; (5) Borrower has no knowledge of any notice of termination
or default with respect to any lease; (6) Borrower has not assigned or pledged
any of the leases, the rents or any interests therein except to Administrative
Agent (on behalf of the Lenders); (7) no tenant or other party has an option to
purchase all or any portion of the Project; (8) no tenant has the right to
terminate its lease prior to expiration of the stated term of such lease except
in the case of a casualty or condemnation of the Project to the extent
permitted pursuant to the terms and conditions of such lease; and (9) no tenant
has prepaid more than one month’s rent in advance (except for bona fide
security deposits not in excess of an amount equal to two month ‘s rent). To
the extent that any part of the Land is located in the State of New York,
reference is hereby made to Section 291-f of the Real Property Law of the State
of New York for purposes of obtaining for Administrative Agent and the Lender
the benefits of said Section in connection herewith. 


59





          Section 6.2 Standard Lease Form; Approval Rights. All leases and other
rental arrangements shall in all respects be approved by Administrative Agent
and shall be on a standard lease form, to the extent possible, using
commercially reasonable efforts, for the Office Component, approved by
Administrative Agent with no material modifications (except as approved by
Administrative Agent in writing). Such lease form shall provide (a) that the
lease is subordinate to the Mortgage, (b) that the tenant shall attorn to
Administrative Agent (on behalf of the Lenders) following an Event of Default
and (c) that any cancellation, surrender, or amendment of such lease without
the prior written consent of Administrative Agent shall be voidable by
Administrative Agent. Borrower shall hold, in trust, all tenant security
deposits in a segregated account, and, to the extent required by applicable
law, shall not commingle any such funds with any other funds of Borrower.
Within ten (10) days after Administrative Agent’s request, Borrower shall
furnish to Administrative Agent a statement of all tenant security deposits,
and copies of all leases not previously delivered to Administrative Agent,
certified by Borrower as being true and correct. Notwithstanding anything
contained in the Loan Documents, Administrative Agent’s approval shall not be
required for future leases or lease extensions if the following conditions are
satisfied: (1) there exists no Potential Default or Event of Default; (2) the
lease is on the standard lease form approved by Administrative Agent with no modifications
except for commercially reasonable changes agreed to in the ordinary course of
Borrower’s business, but in any event there shall be no modifications to the
subordination, attornment, estoppel and landlord liability clause without the
prior written consent of Administrative Agent; (3) the lease does not conflict
with any restrictive covenant affecting the Project or any other lease for
space in the Project; (4) the
lease is not a Major Lease; (5) the lease shall provide for rental rates and
landlord concessions comparable to existing local market rates as shall be
established pursuant to the Leasing Guidelines; (6) the lease is with a third
party not an Affiliate of Borrower, Sponsor or Guarantor; (7) the lease shall
not contain any options for renewal or expansion by the tenant at rental rates
which are below reasonable comparable market levels at the time the lease is
executed; (8) the lease shall be to a tenant which Borrower, in its
professional and commercially reasonable judgment, has determined is
creditworthy and (9) the lease is for a term of not more than ten (10) years
(exclusive of renewal options which, together with the initial lease term shall
not exceed fifteen (15) years). 


          Section 6.3 Covenants. Borrower (1) shall perform the obligations
which Borrower is required to perform under the leases, including the
performance of any tenant improvement work with respect thereto; (2) shall
enforce the obligations to be performed by the tenants; (3) shall promptly
furnish to Administrative Agent any notice of default or termination received
by Borrower from any tenant, and any notice of default or termination given by
Borrower to any tenant; (4) shall not collect any rents for more than thirty
(30) days in advance of the time when the same shall become due, except for
bona fide security deposits not in excess of an amount equal to two month’s
rent; (5) shall not enter into any ground lease or master lease of any part of
the Project; (6) shall not further assign or encumber any lease; (7) shall not,
except with Administrative Agent’s prior written consent, cancel or accept
surrender or termination of any Major Lease; (8) shall not, except with
Administrative Agent’s prior written consent, modify or amend any Major Lease
(except for minor modifications and amendments entered into in the ordinary
course of business, consistent with prudent property management practices, not
affecting the economic terms of the lease); and (9) shall use its best efforts
to lease the Improvements; any action in violation of clauses (5), (6), (7),
and (8) of this Section 6.3 shall be void at the election of Administrative
Agent. 


60





          Section 6.4 Tenant Estoppels. At Administrative Agent’s request,
Borrower shall, within thirty (30) days, obtain and furnish to Administrative
Agent, (1) written estoppels in form and substance reasonably satisfactory to
Administrative Agent, executed by tenants under leases in the Project and
confirming the term, rent, and other provisions and matters relating to the leases
and (2) written subordination and attornment agreements, in form and substance
satisfactory to Administrative Agent, executed by tenants under leases in the
Project, whereby, among other things, such tenants subordinate their interest
in the Project to the Loan Documents and agree to attorn to Administrative
Agent (on behalf of the Lenders) and its successors and assigns upon
foreclosure or other transfer of the Project after an Event of Default. 


ARTICLE 7


REPRESENTATIONS AND WARRANTIES


          Borrower
represents and warrants to Administrative Agent and the Lenders that: 


          Section 7.1 Organization and Power. Borrower and each Borrower Party
is duly organized, validly existing and in good standing under the laws of the
state of its formation or existence, and is in compliance with legal
requirements applicable to doing business in the State. Borrower is not a
“foreign person” within the meaning of § 1445(f)(3) of the Internal Revenue
Code. Lead Borrower’s U.S. taxpayer identification number is 20-1577239 and
Fordham Office’s U.S. taxpayer identification number is 26-1094416. 


          Section 7.2 Validity of Loan Documents. The execution, delivery and
performance by Borrower and each Borrower Party of the Loan Documents: (1) are
duly authorized and do not require the consent or approval of any other party
or Governmental Authority which has not been obtained; and (2) will not violate
any law or result in the imposition of any Lien upon the assets of any such
party, except as contemplated by the Loan Documents. The Loan Documents
constitute the legal, valid and binding obligations of Borrower and each
Borrower Party, enforceable in accordance with their respective terms, subject
to applicable bankruptcy, insolvency, or similar laws generally affecting the
enforcement of creditors’ rights. 


          Section 7.3 Liabilities; Litigation.


                    (1)
The financial statements delivered by Borrower and each Borrower Party are true
and correct with no material change since the date of preparation. Except as
disclosed in such financial statements, there are no liabilities (fixed or
contingent) affecting the Project, Borrower or any Borrower Party. Except as
disclosed in such financial statements, there is no litigation, administrative
proceeding, investigation or other legal action (including any proceeding under
any state or federal bankruptcy or insolvency law) pending or, to the knowledge
of Borrower, threatened, against the Project, Borrower or any Borrower Party
which if adversely determined could have a Material Adverse Effect. 


                    
(2) Neither Borrower nor any Borrower Party is contemplating either the filing
of a petition by it under state or federal bankruptcy or insolvency laws or the
liquidation of all or a major portion of its assets or property, and neither
Borrower nor any Borrower Party has knowledge of any Person contemplating the
filing of any such petition against it. 


61





          Section 7.4 Taxes and Assessments. The Project is comprised of one or
more parcels, each of which constitutes a separate tax lot and none of which
constitutes a portion of any other tax lot. There are no pending or, to
Borrower’s best knowledge, proposed, special or other assessments for public
improvements or otherwise affecting the Project, nor are there any contemplated
improvements to the Project that may result in such special or other
assessments. 


          Section 7.5 Other Agreements; Defaults. Neither Borrower nor any
Borrower Party is a party to or in violation of any agreement or instrument or
subject to any court order, injunction, permit, or restriction which might have
a Material Adverse Effect. 


          Section 7.6 Compliance with Law.


                    (1)
Borrower and each Borrower Party have all requisite licenses, permits,
franchises, qualifications, certificates of occupancy or other governmental
authorizations to own, lease and operate the Project and carry on its business,
and the Project is in compliance with all applicable legal requirements and is
free of structural defects, and all building systems contained therein are in
good working order, subject to ordinary wear and tear. The Project does not
constitute, in whole or in part, a legally non-conforming use under applicable
legal requirements; 


                    (2)
No condemnation has been commenced or, to Borrower’s knowledge, is contemplated
with respect to all or any portion of the Project or for the relocation of
roadways providing access to the Project; and 


                    (3)
The Project has adequate rights of access to public ways and is served by
adequate water, sewer, sanitary sewer and storm drain facilities. All public
utilities necessary or convenient to the full use and enjoyment of the Project
are located in the public right-of-way abutting the Project, and all such
utilities are connected so as to serve the Project without passing over other
property, except to the extent such other property is subject to a perpetual
easement for such utility benefiting the Project. All roads necessary for the
full utilization of the Project for its current purpose have been completed and
dedicated to public use and accepted by all Governmental Authorities. 


          Section 7.7 Location of Borrower. Borrower’s principal place of
business and chief executive offices are located at the address stated in Section
12.1. 


          Section 7.8 ERISA. Borrower has no employees and has not established
any pension plan for employees which would cause Borrower to be subject to the
Employee Retirement Income Security Act of 1974, as amended. 


          Section 7.9 Margin Stock. No part of proceeds of the Loans will be
used for purchasing or acquiring any “margin stock” within the meaning of
Regulations T, U or X of the Board of Governors of the Federal Reserve System. 


          Section 7.10 Tax Filings. Borrower and each Borrower Party have filed
(or have obtained effective extensions for filing) all federal, state and local
tax returns required to be filed and have paid or made adequate provision for
the payment of all federal, state and local taxes, charges and assessments
payable by Borrower and each Borrower Party, respectively. 


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          Section 7.11 Solvency. Giving effect to the Loans, the fair saleable
value of Borrower’s assets exceeds and will, immediately following the making
of the Loans, exceed Borrower’s total liabilities, including, without
limitation, subordinated, unliquidated, disputed and contingent liabilities.
The fair saleable value of Borrower’s assets is and will, immediately following
the making of the Loans, be greater than Borrower’s probable liabilities,
including the maximum amount of its contingent liabilities on its Debts as such
Debts become absolute and matured. Borrower’s assets do not and, immediately
following the making of the Loans will not, constitute unreasonably small
capital to carry out its business as conducted or as proposed to be conducted.
Borrower does not intend to, and does not believe that it will, incur Debts and
liabilities (including contingent liabilities and other commitments) beyond its
ability to pay such Debts as they mature (taking into account the timing and
amounts of cash to be received by Borrower and the amounts to be payable on or
in respect of obligations of Borrower). 


          Section 7.12 Full and Accurate Disclosure. No statement of fact made by
or on behalf of Borrower or any Borrower Party in this Agreement or in any of
the other Loan Documents or in any certificate, statement or questionnaire
delivered by Borrower or any Borrower Party in connection with the Loans
contains any untrue statement of a material fact or omits to state any material
fact necessary to make statements contained herein or therein not misleading.
There is no fact presently known to Borrower or any Borrower Party which has
not been disclosed to Administrative Agent which might have a Material Adverse
Effect. 


          Section 7.13 Single Purpose Entity. Borrower is and has at all times
since its formation been a Single Purpose Entity. 


          Section 7.14 Property Management Agreement. The Property Management
Agreement is the only management agreement in existence with respect to the
operation or management of the Project. The copy of the Property Management
Agreement delivered to Administrative Agent is a true and correct copy, and
such agreement has not been amended or modified. Neither party to such
agreement is in default under such agreement and the Property Manager has no
defense, offset right or other right to withhold performance under or terminate
such agreement. 


          Section 7.15 No Conflicts. The execution, delivery and performance of
this Agreement and the other Loan Documents by Borrower do not and will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any Lien
(other than pursuant to the Loan Documents) upon any of the property or assets
of Borrower pursuant to the terms of any indenture, mortgage, deed of trust,
loan agreement, operating agreement or other agreement or instrument to which
Borrower is a party or by which any of Borrower’s property or assets is
subject, nor will such action result in any violation of the provisions of any
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over Borrower or any of Borrower’s properties or
assets, and any consent, approval, authorization, order, registration or
qualification of or with any court or any such regulatory authority or other
governmental agency or body required for the execution, delivery and
performance by Borrower of this Agreement or any other Loan Documents has been
obtained and is in full force and effect. 


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          Section 7.16 Title. Borrower has good, marketable and insurable fee
simple title to the Project, free and clear of all Liens whatsoever, except for
the Permitted Encumbrances and such other Liens as are permitted pursuant to
the Loan Documents. The Mortgage creates (and upon the recordation thereof and
of any related financing statements there will be perfected) (1) a valid Lien
on the Project, subject only to Permitted Encumbrances and (2) security
interests in and to, and collateral assignments of, all personalty (including
the leases), all in accordance with the terms thereof, in each case subject
only to any applicable Permitted Encumbrances and such other Liens as are
permitted pursuant to the Loan Documents. There are no claims for payment for
work, labor or materials affecting the Project which are or may become a Lien
prior to, or of equal priority with, the Liens created by the Loan Documents.
None of the Permitted Encumbrances, individually or in the aggregate,
materially interfere with the benefits of the security intended to be provided
by the Mortgage and this Agreement, materially and adversely affect the value
of the Project, impair the use or operations of the Project or impair
Borrower’s ability to pay its obligations in a timely manner. 


          Section 7.17 Use of Project. The Project is being, and will continue to
be, used exclusively for retail, office and other ancillary uses permitted by
applicable zoning law, and for no other purpose or purposes. 


          Section 7.18 Flood Zone. No portion of the Project or the Improvements
is located in an area identified by the Secretary of Housing and Urban
Development or any successor thereto as an area having special flood hazards
pursuant to the National Flood Insurance Act of 1968, the Flood Disaster
Protection Act of 1973 or the National Flood Insurance Act of 1994, as amended,
or any successor law. 


          Section 7.19 Insurance. Borrower has obtained and has delivered to
Administrative Agent certified copies of all of the insurance policies for the
Project reflecting the insurance coverages, amounts and other insurance
requirements set forth in this Agreement. No claims have been made under any
such policy, and no Person, including Borrower, has done, by act or omission,
anything which would impair the coverage of any such policy. 


          Section 7.20 Certificate of Occupancy; Licenses. All certifications,
permits, licenses and approvals, including without limitation, certificates of
completion and occupancy permits, required for the legal use, occupancy and
operation of the Project as an office building (with multi-floor retail uses)
(collectively, the “Licenses”)
have been obtained and are in full force and effect. Borrower shall keep and
maintain all Licenses in full force and effect. The use being made of the
Project is in conformity with any applicable certificate of occupancy issued
for the Project. 


          Section 7.21 Physical Condition. Except as disclosed in the building
condition reports certified to Administrative Agent and delivered in connection
with the initial advance of the Loans, the Project, including, without
limitation, all buildings, improvements, parking facilities, sidewalks, storm
drainage systems, roofs, plumbing systems, HVAC systems, fire protection
systems, electrical systems, equipment, elevators, exterior sidings and doors,
landscaping, irrigation systems and all structural components, are in good
condition, order and repair in all material respects; to Borrower’s knowledge,
there exists no structural or other material defects or damages in the Project,
whether latent or otherwise, and Borrower has not received written 


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notice from
any insurance company or bonding company of any defects or inadequacies in the
Project, or any part thereof, which would adversely affect the insurability of
the same or cause the imposition of extraordinary premiums or charges thereon
or of any termination or threatened termination of any policy of insurance or
bond. 


          Section 7.22 Boundaries. All of the Improvements lie wholly within the
boundaries and building restriction lines of the Project, and no improvements
on adjoining properties encroach upon the Project, and no Improvements encroach
upon or violate any easements or other encumbrances upon the Project, so as to
materially adversely affect the value or marketability of the Project, except
those which are insured against by title insurance. 


          Section 7.23 Separate Lots. The Project is comprised of one (1) or more
parcels which constitutes one (1) or more separate tax lots and does not
constitute a portion of any other tax lot not a part of the Project. 


          Section 7.24 Survey. The survey for the Project delivered to
Administrative Agent in connection with this Agreement does not fail to reflect
any material matter affecting the Project or the title thereto. 


          Section 7.25 Filing and Recording Taxes. All transfer taxes, deed
stamps, intangible taxes or other amounts in the nature of transfer taxes
required to be paid by any Person under applicable legal requirements currently
in effect in connection with the transfer of the Project to Borrower or any
transfer of a controlling interest in Borrower have been paid. All mortgage,
mortgage recording, stamp, intangible or other similar tax required to be paid
by any Person in connection with the execution, delivery, recordation, filing,
registration, perfection or enforcement of any of the Loan Documents,
including, without limitation, the Mortgage, have been paid and, the Mortgage
is enforceable in accordance with its terms by Administrative Agent or any
subsequent holder thereof (on behalf of the Lenders), subject to applicable
bankruptcy, insolvency, or similar laws generally affecting the enforcement of
creditors’ rights. 


          Section 7.26 Investment Company Act. Borrower is not (1) an “investment
company” or a company “controlled” by an “investment company,” within the
meaning of the Investment Company Act of 1940, as amended; (2) a “holding
company” or a “subsidiary company” of a “holding company” or an “affiliate” of
either a “holding company” or a “subsidiary company” within the meaning of the
Public Utility Holding Company Act of 1935, as amended; or (3) subject to any
other federal or state law or regulation which purports to restrict or regulate
its ability to borrow money. 


          Section 7.27 Foreign Assets Control Regulations, Etc.


                    (1)
Neither the execution and delivery of the Notes and the other Loan Documents by
Borrower Parties nor the use of the proceeds of the Loans, will violate the
Trading with the Enemy Act, as amended, or any of the foreign assets control
regulations of the United States Treasury Department (31 CFR, Subtitle B,
Chapter V, as amended) or the Anti-Terrorism Order or any enabling legislation
or executive order relating to any of the same. Without limiting the generality
of the foregoing, no Borrower Party or any of their respective subsidiaries (a)
is or will become a blocked person described in Section 1 of the Anti-Terrorism



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Order or (b)
engages or will engage in any dealings or transactions or be otherwise
associated with any such blocked person. 


                    (2)
Each partner or member or other direct or indirect principal of Borrower shall
be at all times during the term of the Loans an entity or person which (a) is
(and whose principals shall be) a reputable entity or person of good character
and in good standing as reasonably determined by the Lenders, (b) is
creditworthy and not adverse to any of the Lenders in any pending litigation or
arbitration in which any Lender is also a party, (c) is not a Prohibited
Person, and (d) is in good standing in its state or country of organization. 


          Section 7.28 Organizational Structure.


                    (1)
Borrower has heretofore delivered to Administrative Agent a true and complete
copy of the Organizational Documents of each Borrower Party. The only member of
Borrower on the date hereof is Managing Member. The Managing Member is the sole
managing member of Borrower. As of the date hereof, there are no outstanding
equity rights with respect to Borrower or the Managing Member. 


                    (2)
The only members of the Managing Member on the date hereof are Guarantor and
P/A Associates LLC. Guarantor is the sole managing member of the Managing
Member. 


                    (3)
Schedule 7.28 contains a true and accurate chart reflecting the
ownership of all of the direct and indirect equity interests in Borrower,
including the percentage of ownership interest of the Persons shown thereon. 


ARTICLE 8


FINANCIAL REPORTING


          Section 8.1 Financial Statements.


                    (1)
Quarterly Reports. Within
forty-five (45) days after the end of each calendar quarter, Lead Borrower
shall furnish to Administrative Agent a detailed operating statement (showing
quarterly activity and year-to-date) stating Operating Revenues, Operating
Expenses, operating income and Net Cash Flow, and capital expenditures for the
calendar quarter just ended and a balance sheet for such quarter for Borrower.
Borrower’s quarterly statements shall be accompanied by (i) a comparison of the
budgeted income and expenses and the actual income and expenses for the prior
calendar quarter, (ii) a calculation reflecting the Debt Service Coverage Ratio
as of the last day of such quarter, for such quarter and the last four
quarters; (iii) a current rent roll for the Project, and (iv) a certificate
executed by the chief financial officer of Borrower or the managing member of
Borrower stating that each such quarterly statement presents fairly the
financial condition and the results of operations of Borrower and the Project
and has been prepared in accordance with general accepted accounting
principles. 


                    (2)
Annual Reports. Within ninety (90)
days after the end of each calendar year of Borrower’s operation of the
Project, Lead Borrower will furnish to Administrative Agent 


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a complete
copy of Borrower’s annual financial statements prepared in accordance with GAAP
and otherwise in form and detail reasonably acceptable to Administrative Agent,
for such calendar year which financial statements shall contain a balance
sheet, a detailed operating statement stating Operating Revenues, Operating
Expenses, operating income and Net Cash Flow for each of Borrower and the
Project. Borrower’s annual financial statements shall be accompanied by (i) a
comparison of the budgeted income and expenses and the actual income and
expenses for the prior calendar year, (ii) a certificate executed by the chief
financial officer of Borrower or the managing member of Borrower stating that
each such annual financial statement presents fairly the financial condition
and the results of operations of Borrower and the Project and has been prepared
in accordance with general accepted accounting principles. 


                    (3)
Additional Reports. Upon request
of Administrative Agent, Lead Borrower shall deliver to Administrative Agent as
soon as reasonably available, but in no event later than thirty (30) days after
such items become available to Borrower in final form a summary report
containing each of the following with respect to the Project for the most
recently completed calendar year: (A) aggregate sales by tenants under leases
or other occupants of the Project, both on an actual (or to the extent such
information is not provided by tenants, Property Manager’s or Borrower’s best
estimate) and on a comparable store basis, (B) rent per square foot payable by
each tenant, (C) aggregate Occupancy of the Project by anchor space and in-line
store space as of December 31 and (D) such other information as Administrative
Agent shall reasonably request. 


                    (4)
Certification; Supporting Documentation.
Each such financial statement shall be in scope and detail satisfactory to
Administrative Agent and certified by the chief financial representative of
Borrower. 


          Section 8.2 Accounting Principles. All financial statements shall be
prepared in accordance with sound accounting principles applicable to
commercial real estate, consistently applied from year to year. If the
financial statements are prepared on an accrual basis, such statements shall be
accompanied by a reconciliation to cash basis accounting principles. 


          Section 8.3 Other Information. Lead Borrower shall deliver to
Administrative Agent such additional information regarding Borrower, its
subsidiaries, its business, any Borrower Party, and the Project within thirty
(30) days after Administrative Agent’s request therefor. 


          Section 8.4 Annual Budget. At least thirty (30) days prior to the
commencement of each fiscal year, Lead Borrower will provide to Administrative
Agent Borrower’s proposed annual operating and capital improvements budget for
such fiscal year for review and approval by Administrative Agent. 


          Section 8.5 Audits. Administrative Agent shall have the right to
choose and appoint a certified public accountant to perform financial audits as
it deems necessary, at Borrower’s expense, provided, however unless an Event of
Default has occurred, Borrower shall not be required to pay for more than one
(1) financial audit per calendar year. Borrower shall permit Administrative
Agent to examine such records, books and papers of Borrower which reflect upon
its financial condition and the income and expense relative to the Project. 


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ARTICLE 9


COVENANTS


          Borrower
covenants and agrees with Administrative Agent and the Lenders as follows: 


          Section 9.1 Due on Sale and Encumbrance; Transfers
of Interests. Without the prior written consent of
Administrative Agent and the Lenders (to the extent required under Section
12.2), 


                    (1)
Borrower shall not allow any Change of Control to occur, or permit any Transfer
to occur (whether of equity interests or through any pledge or encumbrance of
equity interests, or of the economic or other benefits therefrom, whether
voluntary, involuntary, by operation of law or otherwise) if any such Transfer
would result in a Change of Control; 


                    (2)
neither Borrower nor any other Person having an ownership or beneficial
interest in Borrower shall (a) allow, directly or indirectly, any Transfer
(other than a Permitted Transfer), to occur; (b) further encumber, alienate,
grant a Lien or grant any other interest in the Project or any part thereof
(including any partnership, membership or other ownership interest in
Borrower), whether voluntarily or involuntarily; or (c) enter into any easement
or other agreement granting rights in or restricting the use or development of
the Project; 


                    (3)
no new general partner, member, or limited partner having the ability to
control the affairs of Borrower shall be admitted to or created in Borrower
(nor shall any existing general partner or member or controlling limited
partner withdraw from Borrower), and no change in Borrower’s organizational
documents relating to control over Borrower and/or the Project shall be
effected. 


As used in
this Section 9.1, “Transfer” shall include the sale, transfer,
conveyance, mortgage, pledge, or assignment of the legal or beneficial ownership
of (a) the Project (including any Unit), (b) any partnership interest in any
general partner in Borrower that is a partnership, (c) any membership interest
in any member in Borrower that is a limited liability company and (d) any
voting stock in any managing member in Borrower that is a corporation;
“Transfer” shall not include (i) the leasing of any space within the Project so
long as Borrower complies with the provisions of the Loan Documents relating to
such leasing activity; or (ii) the transfers of non-managing membership
interests in Borrower so long as no Change of Control results therefrom. 


          Section 9.2 Taxes; Charges.
Borrower shall pay before any fine, penalty, interest or cost may be added
thereto, and shall not enter into any agreement to defer, any real estate taxes
and assessments, franchise taxes and charges, and other governmental charges
that may become a Lien upon the Project or become payable during the term of
the Loans (collectively, the “Taxes”),
and will promptly furnish Administrative Agent with evidence of such payment;
however, Borrower’s compliance with Section 4.1 of this Agreement
relating to impounds for taxes and assessments shall, with respect to payment
of such taxes and assessments, be deemed compliance with this Section 9.2.
Borrower shall not suffer or permit the joint assessment of the Project with
any other real property constituting a separate tax lot or with any other real
or personal property. Borrower shall pay when due all claims and demands of
mechanics, 


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materialmen,
laborers and others which, if unpaid, might result in a Lien on the Project;
however, Borrower may contest the validity of such claims and demands or taxes
so long as (1) Lead Borrower notifies Administrative Agent that Borrower
intends to contest such claim or demand, (2) Borrower provides Administrative
Agent with an indemnity, bond or other security satisfactory to Administrative
Agent (including an endorsement to Administrative Agent’s title insurance
policy insuring against such claim or demand) assuring the discharge of
Borrower’s obligations for such claims and demands, including interest and
penalties, (3) Borrower is diligently contesting the same by appropriate legal
proceedings in good faith and at its own expense and concludes such contest
prior to the tenth (10th) day preceding the earlier to occur of the Maturity
Date or the date on which the Project is scheduled to be sold, forfeited,
terminated, cancelled or lost for non payment, (4) such proceedings shall not
subject Borrower, the Administrative Agent or any Lender to criminal or civil
liability (other than civil liability as to which adequate security has been
provided pursuant to clause (2) above), and (5) Borrower shall promptly upon
final determination thereof pay the amount of such items, together with all
costs, interests and penalties. 


          Section
9.3 Control; Management. Borrower shall not
terminate, replace or appoint any manager or terminate or amend the Property
Management Agreement for the Project without Administrative Agent’s prior
written approval. Any change in ownership or control of the Property Manager
shall be cause for Administrative Agent to re-approve such Property Manager and
Property Management Agreement. If at any time Administrative Agent consents to
the appointment of a new manager, such new manager and Borrower shall, as a
condition of Administrative Agent’s consent, execute a Property Manager’s
Consent and Subordination of Property Management Agreement in the form then
used by Administrative Agent. Each manager shall hold and maintain all
necessary licenses, certifications and permits required by law. Borrower shall
fully perform all of its covenants, agreements and obligations under the
Property Management Agreement. 


          Section 9.4 Operation; Maintenance; Inspection.
Borrower shall observe and comply with all legal requirements applicable to the
ownership, use and operation of the Project. Borrower shall maintain the
Project in good condition and promptly repair any damage or casualty. Borrower
shall permit Administrative Agent and the Lenders and their agents,
representatives and employees, upon reasonable prior notice to Borrower, to
inspect the Project and conduct such environmental and engineering studies as
Administrative Agent may require, provided such inspections and studies do not
materially interfere with the use and operation of the Project. 


          Section 9.5 Taxes on Security.
Borrower shall pay all taxes, charges, filing, registration and recording fees,
excises and levies payable with respect to the Notes or the Liens created or
secured by the Loan Documents, other than income, franchise and doing business
taxes imposed on Administrative Agent or any Lender. If there shall be enacted
any law (1) deducting the Loans from the value of the Project for the purpose
of taxation, (2) affecting any Lien on the Project, or (3) changing existing
laws of taxation of mortgages, deeds of trust, security deeds, or debts secured
by real property, or changing the manner of collecting any such taxes, Borrower
shall promptly pay to Administrative Agent, on demand, all taxes, costs and
charges for which Administrative Agent or any Lender is or may be liable as a
result thereof; however, if such payment would be prohibited by law or would
render the Loans usurious, then 


69





instead of
collecting such payment, Administrative Agent may (and on the request of the
Majority Lenders shall) declare all amounts owing under the Loan Documents to
be immediately due and payable. 


          Section 9.6 Legal Existence; Name, Etc.
Borrower and each managing member in Borrower shall preserve and keep in full
force and effect its existence as a Single Purpose Entity, entity status,
franchises, rights and privileges under the laws of the state of its formation,
and all qualifications, licenses and permits applicable to the ownership, use
and operation of the Project. Neither Borrower nor any managing member of
Borrower shall wind up, liquidate, dissolve, reorganize, merge, or consolidate
with or into, or convey, sell, assign, transfer, lease, or otherwise dispose of
all or substantially all of its assets, or acquire all or substantially all of
the assets of the business of any Person, or permit any subsidiary or Affiliate
of Borrower to do so. Borrower and each managing member in Borrower shall
conduct business only in its own name and shall not change its name, identity,
or organizational structure, or the location of its chief executive office or
principal place of business unless Borrower (a) shall have obtained the prior
written consent of Administrative Agent to such change, and (b) shall have
taken all actions necessary or requested by Administrative Agent to file or
amend any financing statement or continuation statement to assure perfection
and continuation of perfection of security interests under the Loan Documents. 


                    (2)
Borrower shall at all times cause there to be at least one (1) duly appointed
member of the board of managers or other governing board or body of the
managing member of the Managing Member, who is an Independent Manager. Borrower
shall not take any action or permit any action to be taken which, under the
terms of this Agreement, or the limited partnership agreement or limited
liability company operating agreement of Borrower, the Managing Member, or the
managing member of the Managing Member, requires the consent of such
Independent Manager(s), unless such Independent Manager(s) shall have consented
in writing to such action. 


                    (3)
Neither Borrower nor Borrower’s Managing Member shall cause or permit any
modification to be made in its organizational documents that would be
inconsistent with the provisions of Section 7.28 or this Section 9.6,
that would interfere with its ability to comply with its status as a Single
Purpose Entity, as applicable, or that otherwise in any other respect would
violate this Agreement or could reasonably be expected to have a Material
Adverse Effect. 


          Section
9.7 Affiliate Transactions. Without the prior
written consent of Administrative Agent, Borrower shall not engage in any
transaction affecting the Project with an Affiliate of Borrower. 


          Section 9.8 Limitation on Other Debt.
Borrower and Managing Member shall not, without the prior written consent of
Administrative Agent and the Majority Lenders, incur any Debt other than, in
the case of the Borrower, the Loans and trade and operational debt described in
subsection (p) of the definition of Single Purpose Entity. 


          Section 9.9 Further Assurances. Borrower
shall promptly (1) cure any defects in the execution and delivery of the Loan
Documents, and (2) execute and deliver, or cause to be executed and delivered,
all such other documents, agreements and instruments as Administrative 


70





Agent may reasonably
request to further evidence and more fully describe the collateral for the
Loans, to correct any omissions in the Loan Documents, to perfect, protect or
preserve any Liens created under any of the Loan Documents, or to make any
recordings, file any notices, or obtain any consents, as may be necessary or
appropriate in connection therewith. 


          Section
9.10 Loan Certificates. Borrower or
Administrative Agent, within ten (10) days after request from the other party,
shall furnish to the requesting party a written statement, duly acknowledged,
setting forth the amount due on the Loans, the terms of payment of the Loans,
the date to which interest has been paid, whether any offsets or defenses exist
against the Loans and, if any are alleged to exist, the nature thereof in
detail, and such other matters as the requesting party reasonably may request. 


          Section
9.11 Notice of Certain Events. Lead Borrower
shall promptly notify Administrative Agent of (1) any Potential Default or
Event of Default, together with a detailed statement of the steps being taken
to cure such Potential Default or Event of Default; (2) any notice of default
received by Borrower or any Borrower Party under other obligations relating to
the Project or otherwise material to Borrower’s business; and (3) any
threatened or pending legal, judicial or regulatory proceedings, including any
dispute between Borrower and any Governmental Authority, affecting Borrower or
the Project. 


          Section 9.12 Indemnification.
Borrower shall indemnify, defend and hold Administrative Agent and each Lender
harmless from and against any and all losses, liabilities, claims, damages,
expenses, obligations, penalties, actions, judgments, suits, costs or
disbursements of any kind or nature whatsoever, including the reasonable fees
and actual expenses of their counsel, which may be imposed upon, asserted
against or incurred by any of them relating to or arising out of (1) the
Project or (2) any of the Loan Documents or the transactions contemplated
thereby, including, without limitation, (a) any accident, injury to or death of
persons or loss of or damage to property occurring in, on or about any of the
Project or any part thereof or on the adjoining sidewalks, curbs, adjacent
property or adjacent parking areas, streets or ways, (b) any inspection, review
or testing of or with respect to the Project, (c) any investigative,
administrative, mediation, arbitration, or judicial proceeding, whether or not
Administrative Agent or any Lender is designated a party thereto, commenced or
threatened at any time (including after the repayment of the Loans) in any way
related to the execution, delivery or performance of any Loan Document or to
the Project, (d) any proceeding instituted by any Person claiming a Lien, and
(e) any brokerage commissions or finder’s fees claimed by any broker or other
party claiming to have dealt with the Borrower in connection with the Loans,
the Project, or any of the transactions contemplated in the Loan Documents,
including those arising from the joint, concurrent, or comparative negligence
of Administrative Agent or any Lender, except to the extent any of the
foregoing is caused by Administrative Agent’s or any Lender’s gross negligence
or willful misconduct, in which case the party to whom the gross negligence or
willful misconduct is attributable (but not any other party) shall not be
entitled to the indemnification provided for hereunder to the extent of such
gross negligence or willful misconduct, to the extent determined by a court of
competent jurisdiction. 


          Section
9.13 Payment for Labor and Materials. Borrower
will promptly pay when due all bills and costs for labor, materials, and
specifically fabricated materials incurred in connection with the Project and
never permit to exist beyond the due date thereof in respect of 


71





the Project or
any part thereof any Lien, even though inferior to the Liens of the Loan
Documents, and in any event never permit to be created or exist in respect of
the Project or any part thereof any other or additional Lien other than the
Liens or security of the Loan Documents, except for the Permitted Encumbrances;
however, Borrower may contest the validity of such Liens so long as (1) Lead
Borrower notifies Administrative Agent that Borrower intends to contest such
Liens, (2) Borrower provides Administrative Agent with an indemnity, bond or
other security satisfactory to Administrative Agent (including an endorsement
to Administrative Agent’s title insurance policy insuring against such Liens)
assuring the discharge of Borrower’s obligations for such Liens, including
interest and penalties, (3) Borrower is diligently contesting the same by
appropriate legal proceedings in good faith and at its own expense and
concludes such contest prior to the tenth (10th) day preceding the earlier to
occur of the Maturity Date or the date on which the Project is scheduled to be
sold, forfeited, terminated, cancelled or lost for non payment, (4) such
proceedings shall not subject Borrower, the Administrative Agent or any Lender
to criminal or civil liability (other than civil liability as to which adequate
security has been provided pursuant to clause (2) above), and (5) Borrower
shall promptly upon final determination thereof pay the amount of such items, together
with all costs, interests and penalties. 


          Section 9.14 Alterations. Borrower
shall obtain Administrative Agent’s prior written consent, which consent shall
not be unreasonably withheld or delayed, to any alterations to any improvements
that may have a Material Adverse Effect on Borrower’s financial condition, the
use, operation or value of the Project or the actual Net Operating Income with
respect to the Project, other than (a) tenant improvement work performed
pursuant to the terms of any lease executed on or before the date hereof, (b)
tenant improvement work performed pursuant to the terms and provisions of a
lease and not adversely affecting any structural component of any improvements,
any utility or HVAC system contained in any improvements or the exterior of any
building constituting a part of any improvements at the Project, or (c)
alterations performed in connection with the restoration of the Project after
the occurrence of a casualty in accordance with the terms and provisions of
this Agreement. 


          Section 9.15 Hedge Agreements. 


                    (1)
At Borrower’s option, the Borrower may enter into one or more Hedge Agreements.
Each Hedge Agreement shall, at Borrower’s option, be based on an Interest
Period (each, an “Interest Rate Hedge
Period”) of one (1) month. The economic and other benefits of
the Hedge Agreements and all of the other rights thereunder shall be
collaterally assigned to Administrative Agent as additional security for the
Loans, pursuant to a Hedge Agreement Pledge. All Hedge Agreement Pledges shall
be accompanied by (i) Uniform Commercial Code financing statements, in
duplicate, with respect to such pledges and (ii) the consent and agreement of
the counterparty thereunder that it will pay all amounts due thereunder to an
account designated by Administrative Agent and will continue to perform its
obligations under such Hedge Agreement for the benefit of Administrative Agent
and the Lenders after enforcement of and/or realization on such Hedge Agreement
Pledge and an acknowledgement that Administrative Agent shall not be deemed to
have assumed any of the obligations or duties of Borrower under any such Hedge
Agreement. 


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                    (2)
All of Borrower’s obligations under any Hedge Agreement provided by a Eurohypo
Counterparty shall be secured by the lien of the Mortgage on a pari passu basis
with the Loans and other sums evidenced or secured by the Loan Documents. 


                    (3)
Any Hedge Agreement entered into with one or more banks or insurance companies
(each a “Third-Party Counterparty”)
other than a Eurohypo Counterparty (a “Third-Party
Hedge Agreement”) shall not be secured by the Mortgage or a Lien
on any portion of the collateral under the Security Documents or on or in any direct
or indirect interest in Borrower. 


                    (4)
Borrower shall cause all payments payable by a Third-Party Counterparty under
the Hedge Agreement to be deposited into an account designated by
Administrative Agent. On the due date for interest on the Loans each month, the
amounts so deposited in such account shall be debited, and applied to pay the
accrued but unpaid interest on the Loans due on such date, before applying any
portion of the Loan proceeds which is allocated to the Interest Reserve for
such purpose, and before applying any Operating Revenues for such purpose. 


                    (5)
Any payment due from the counterparty under any Hedge Agreement upon a
termination thereof, shall be delivered to Administrative Agent and applied by
Administrative Agent to any amounts due under the Loan Documents. 


                    (6)
In connection with a Third-Party Hedge Agreement, Lead Borrower shall obtain
and deliver to Administrative Agent an opinion from counsel (which counsel may
be in-house counsel for the Third-Party Counterparty) for the Third-Party
Counterparty (in form reasonably satisfactory to Administrative Agent and upon
which Administrative Agent, the Lenders and their respective successors and
assigns may rely) which shall provide, in relevant part, that: 


	
  

 	
  

 
	
  

 	
                     (a)
 the Third-Party Counterparty is duly organized, validly existing, and in good
 standing under the laws of its jurisdiction of incorporation or organization
 and has the organizational power and authority to execute and deliver, and to
 perform its obligations under, the Third-Party Hedge Agreement; 

 
	
  

 	
  

 
	
  

 	
                     (b)
 the execution and delivery of the Third-Party Hedge Agreement by the
 Third-Party Counterparty, and any other agreement which the Third-Party
 Counterparty has executed and delivered pursuant thereto, and the performance
 of its obligations thereunder have been and remain duly authorized by all
 necessary action and do not contravene any provision of its certificate of
 incorporation or by-laws (or equivalent organizational documents) or any law,
 regulation or contractual restriction binding on or affecting it or its
 property; 

 
	
  

 	
  

 
	
  

 	
                     (c)
 all consents, authorizations and approvals required for the execution and
 delivery by the Third-Party Counterparty of the Third-Party Hedge Agreement,
 and any other agreement which the Third-Party Counterparty has executed and
 delivered pursuant thereto, and the performance of its obligations thereunder
 have been obtained and remain in full force and effect, all conditions
 thereof have been duly 

 


73









	
  

 	
  

 
	
  

 	
 complied
 with, and no other action by, and no notice to or filing with any
 Governmental Authority or regulatory body is required for such execution,
 delivery or performance; and 

 
	
  

 	
  

 
	
  

 	
                     (d)
 the Third-Party Hedge Agreement, and any other agreement which the
 Third-Party Counterparty has executed and delivered pursuant thereto, has
 been duly executed and delivered by the Third-Party Counterparty and
 constitutes the legal, valid and binding obligation of the Third-Party
 Counterparty, enforceable against the Third-Party Counterparty in accordance
 with its terms, subject to applicable bankruptcy, insolvency and similar laws
 affecting creditors’ rights generally, and subject, as to enforceability, to
 general principles of equity (regardless of whether enforcement is sought in
 a proceeding in equity or at law). 

 



          Section
9.16 Certain Financial Covenants.


                    (1)
Debt Service Coverage Ratio. 


                    (a)
Commencing on December 31, 2009 Borrower shall not permit (a) the Debt Service
Coverage Ratio for any calendar quarter to be less than (i) with respect to the
period from the Closing Date through and including the first anniversary of the
Closing Date, 1.35:1.00; and (ii) from the first day after the first
anniversary of the Closing Date through and including the original Maturity
Date, 1.25:1.00; or (b) in the event that Borrower exercises the option to
extend the term of the Loan pursuant to Section 2.5 hereof, the Pro
Forma Debt Service Coverage Ratio for any calendar quarter during the Extension
Period to be less than 1.45:1.00. 


                    (b)
Upon the occurrence of a Low DSCR Trigger Event, Borrower shall, on or before
the date which is five (5) Business Days after the date of any such
determination (but in any event within fifty (50) days after the end of the
applicable calendar quarter) either (a) make a payment in reduction of the
outstanding principal amount in an amount determined by Administrative Agent
(together with all applicable breakage costs or other charges, if any, provided
for herein) such that after giving effect to such payment, the Debt Service
Coverage Ratio would not have triggered a Low DSCR Trigger Event for the
applicable calendar quarter had such prepayment been made as of the first day
of such calendar quarter; or (b) make a deposit of cash with Administrative
Agent, and/or deliver a Collateral Letter of Credit to Administrative Agent as
additional collateral for the Notes and Borrower’s other obligations under the
Loan Documents, in each case, in an amount determined by Administrative Agent
such that if the amount so deposited were used to make a principal prepayment,
the Debt Service Coverage Ratio would not have triggered a Low DSCR Trigger
Event for the applicable calendar quarter had such prepayment been made as of
the first day of such calendar quarter. Any cash shall be deposited by
Administrative Agent in the Low DSCR Account and be subject to the terms of the
Cash Management Agreement, including the security interest granted by Borrower
therein pursuant to the Cash Management Agreement. If the Low DSCR Release
Event shall occur within six (6) months of the Low DSCR Trigger Event, provided
that there is no then existing Potential Default or Event of Default, any funds
held in the Low DSCR Account pursuant to this subsection (b) and any
undrawn Collateral Letters of Credit delivered pursuant to this subsection
(b) shall be released to Lead Borrower. In the event that the Low DSCR
Release Event does not occur within six (6) months of the Low DSCR Trigger
Event, then Administrative Agent shall have the right to apply any funds held
in the Low DSCR Account 


74





pursuant to
this subsection (b) and to draw on any Collateral Letters of Credit
delivered pursuant to this subsection (b) and apply such amounts in
reduction of the outstanding principal balance of the Loan. 


          Section
9.17 Handicapped Access.


                    (1)
Borrower (a) agrees that it shall use commercially reasonable efforts to ensure
that the Project shall at all times comply with the applicable requirements of
the Americans with Disabilities Act of 1990, the Fair Housing Amendments Act of
1988, all state and local laws and ordinances related to handicapped access and
all rules, regulations, and orders issued pursuant thereto including, without
limitation, the Americans with Disabilities Act Accessibility Guidelines for
Buildings and Facilities (collectively, “Access
Laws”) and (b) has no actual knowledge as to the Project’s
non-compliance with any Access Laws where the failure to so comply could have a
Material Adverse Effect on the Project or on Borrower’s ability to repay the
Loans in accordance with the terms hereof. 


                    (2)
Notwithstanding any provisions set forth herein or in any other document
regarding Administrative Agent’s approval of alterations of the Project,
Borrower shall not alter the Project in any manner which would materially
increase Borrower’s responsibilities for compliance with the applicable Access
Laws without the prior written approval of Administrative Agent. The foregoing
shall apply to tenant improvements constructed by Borrower or by any of its
tenants. Administrative Agent may condition any such approval upon receipt of a
certificate of Access Law compliance from an architect, engineer, or other
person reasonably acceptable to Administrative Agent. 


                    (3)
Lead Borrower agrees to give prompt notice to Administrative Agent of the
receipt by Borrower of any written complaints related to violation of any
Access Laws with respect to the Project and of the commencement of any
proceedings or investigations which relate to compliance with applicable Access
Laws. 


          Section
9.18 Zoning. Borrower shall not, without
Administrative Agent’s prior consent, such consent not to be unreasonably
withheld, seek, make, suffer, consent to or acquiesce in any change or variance
in any zoning or land use laws or other conditions of use of the Project or any
portion thereof. Borrower shall not use or permit the use of any portion of the
Project in any manner that could result in such use becoming a non-conforming
use under any zoning or land use law or any other applicable law or modify any
agreements relating to zoning or land use matters or with the joinder or merger
of lots for zoning, land use or other purposes, without the prior written
consent of Administrative Agent. Without limiting the foregoing, in no event
shall Borrower take any action that would reduce or impair either (a) the
number of parking spaces at the Improvements or (b) access to the Project from
adjacent public roads. Further, without Administrative Agent’s prior written
consent, such consent not to be unreasonably withheld, Borrower shall not file
or subject any part of the Project to any additional declaration of condominium
or co-operative or convert any part of the Project to an additional
condominium, co-operative or other direct or indirect form of multiple ownership
and governance. 


75





          Section
9.19 ERISA. Borrower shall not take any action,
or omit to take any action, which would (a) cause Borrower’s assets to
constitute “plan assets” for purposes of ERISA or the Internal Revenue Code or
(b) cause the Loan Transactions to be a nonexempt prohibited transaction (as
such term is defined in Section 4975 of the Internal Revenue Code or Section
406 of ERISA) that could subject Administrative Agent and/or the Lenders, on
account of any Loan or execution of the Loan Documents hereunder, to any tax or
penalty on prohibited transactions imposed under Section 4975 of the Internal
Revenue Code or Section 502(i) of ERISA. 


          Section 9.20 Books and Records.
Borrower will, and will cause each of the other Borrower Parties to, keep
proper books of record and account in which full, true and correct entries are
made of all dealings and transactions in relation to its business and
activities. Borrower will, and will cause each of the other Borrower Parties
to, permit any representatives designated by Administrative Agent or any
Lender, upon reasonable prior notice, to visit and inspect its properties, to
examine and make extracts from its books and records, and to discuss its
affairs, finances and condition with its officers and independent accountants,
all at such reasonable times and as often as reasonably requested. 


          Section
9.21 Foreign Assets Control Regulations.
Neither Borrower nor any Borrower Party shall use the proceeds of the Loan in
any manner that will violate the Trading with the Enemy Act, as amended, or any
of the foreign assets control regulations of the United States Treasury
Department (31 CFR, Subtitle B, Chapter V, as amended) or the Anti-Terrorism
Order or any enabling legislation or executive order relating to any of the
same. Without limiting the foregoing, neither Borrower nor any Borrower Party
will permit itself nor any of its Subsidiaries to (a) become a blocked person
described in Section 1 of the Anti-Terrorism Order or (b) knowingly engage in
any dealings or transactions or be otherwise associated with any person who is
known by such Borrower Party or who (after such inquiry as may be required by
applicable law) should be known by such Borrower Party to be a blocked person. 


          Section
9.22 Appraisals. Administrative Agent may, at
its option, commission one or more new and/or updated Appraisals from time to
time after the closing date; provided, however, that Borrower shall only be
required to reimburse Administrative Agent for such new and updated Appraisal
(A) not more than annually unless (1) an Event of Default exists or (2) there
is, in Administrative Agent’s reasonable judgment, a material adverse change in
the Project or the market conditions related to the Project, (B) in connection
with Section 2.5 and (C) at any time such appraisal is required by
applicable law or regulatory requirements. 


Section 9.23 Covenants Regarding the
Condominium Declaration.


          Borrower
covenants and agrees that: 


                    (1)
Borrower shall pay when due and before any fine, penalty, interest or cost may
be added thereto for the late payment or non-payment thereof, all Unit Annual
Assessments imposed on Borrower’s Project Interest and all other charges
mentioned in and payable by Borrower under the Condominium Declaration
(including, without limitation, all insurance and taxes applicable to
Borrower’s Project Interest), and shall comply with all of its other
obligations under the Condominium Declaration, and shall do all things
necessary to preserve and to keep unimpaired Borrower’s rights, powers and
privileges (whether as the owner of the Units, as the 


76





Declarant, as
the holder of any special class of voting rights, or otherwise) thereunder. If
Borrower shall fail to do so, the Lenders shall, if required by Administrative
Agent, pay such Unit Annual Assessments or other charges. Lead Borrower shall
deliver to Administrative Agent, upon request, copies of receipts or other
proof satisfactory to Administrative Agent evidencing the timely payment of
such Unit Annual Assessments and other charges. 


                    (2)
Borrower shall comply with the covenants, agreements and provisions of the
Condominium Documents, and Lead Borrower shall promptly notify Administrative
Agent of (a) any failure by Borrower to comply with the Condominium Declaration
and (b) the receipt by Borrower of any notice asserting or claiming a default
by Borrower under the Condominium Declaration, and shall promptly cause a copy
of such notice to be delivered to Administrative Agent. 


                    (3)
Borrower shall not vote in favor of or otherwise approve any amendment of the
Condominium Declaration without the prior written consent of Administrative
Agent, which consent shall not be unreasonably withheld. 


                    (4)
Borrower shall not waive any material right of the Borrower (whether as the
owner of the Units, as the Declarant, as the holder of any special class of
voting rights, or otherwise) under the Condominium Declaration without the
prior written consent of Administrative Agent which shall not be unreasonably
withheld. 


                    (5)
The Lien of the Mortgage shall encumber all of Borrower’s Project Interest,
including all of Borrower’s rights to vote on or approve any matter with
respect to Borrower’s Project Interest. Without the prior written consent of
Administrative Agent, Borrower shall not exercise such voting or approval
rights with respect to any of the following: 


                    (a)
any partition of all or a part of the Project subject to the Condominium
Declaration; 


                    (b)
the nature and amount of any insurance covering all or a part of the Project
and the disposition of any proceeds thereof; 


                    (c)
the manner in which any condemnation or threat of condemnation of all or a part
of the Project shall be defended or settled and the disposition of any award or
settlement in connection therewith; 


                    (d)
the construction of any additions or improvements to, or any repair, rebuilding
or restoration of all or a portion of any Improvements to, the Project (to the
extent that the same would require the approval of Administrative Agent under
this Agreement); 


                    (e)
the distribution of any insurance or condemnation proceeds (other than in
compliance with this Agreement); and 


                    (f)
 any other material action or
decision provided for in the Condominium Declaration. 


77





                    (6)
If required by the Administrative Agent, Lead Borrower will take all action to
obtain as promptly as possible, and forthwith upon receipt furnish to the
Administrative Agent, a true and correct copy of: (a) any statement showing the
allocation of expenses and other assessments against the Units and (b) any
statements issued to Borrower calling for payment of expenses. 


                    (7)
Lead Borrower shall be, and remain through the repayment of the Loans in full,
the Declarant under the Condominium Declaration. 


                    (8)
Borrower shall cause the condominium association created by the Condominium
Documents to, at all times, have furnished to Administrative Agent at no cost
or expense to Administrative Agent, insurance policies for the insurance
required hereunder and under the Condominium Documents, with extended coverage
naming Administrative Agent, said condominium association, and Borrower (as
owner of the Units), as their respective interests may appear, as the insureds,
covering all of the Improvements; said insurance shall at all times be an
amount equal to 100% of the insurable value of the Improvements and shall
otherwise comply with the applicable conditions contained in the Mortgage and
elsewhere in this Agreement. 


                    (9)
Borrower shall at all times comply with the following covenants: 


                    (a)
Borrower shall satisfy all of the requirements of the Condominium Act and of
any other applicable law necessary to maintain a valid condominium regime
inclusive of all of the Units; and obtain any required approval of the
Condominium Documents from the Attorney General of the State of New York. Any
Condominium Documents and any modifications or amendments thereto shall be
reasonably approved by Administrative Agent prior to the recording, filing or
effectiveness thereof, provided that in the case of any such amendment which
shall increase the number of condominium units, in the event that a casualty or
condemnation has occurred and the provisions of ARTICLE 3 prevent
restoration in connection with such casualty or condemnation, then prior to the
recording, filing or effectiveness, as applicable, of such amendment, Lead
Borrower, at Administrative Agent’s option, shall be prohibited from recording,
filing or otherwise causing the amendment to become effective and
Administrative Agent, at the Majority Lenders’ election, shall be permitted to
vote, on Lead Borrower’s behalf in accordance with the Voting Proxy delivered
to Administrative Agent, or require Lead Borrower to vote, to terminate and dissolve
the Condominium. In connection with such amendment, Lead Borrower shall provide
updates of the documents and opinion provided herein in the event that the
Condominium Declaration has been modified or amended or any of the officers,
managers or directors have changed as a result of such amendment; 


                    (b)
Borrower shall duly perform or cause to be duly performed, in all material
respects, all obligations of the developers or sponsors under the Condominium
Documents, and do or cause to be done all things necessary to operate and
maintain the Project and the Condominium as a retail condominium project, that
are required to be done by the developers or sponsors and comply with all
Applicable Laws applicable to the Condominium, and furnish such evidence of
compliance therewith as Administrative Agent may reasonably request; 


78





                    (c)
Subject to Administrative Agent’s approval in its reasonable discretion,
Borrower shall not cancel, terminate or revoke, or modify, or in any way alter
or permit the alteration of, any of the material provisions of the Condominium
Documents or grant any consents or waivers thereunder, and not to exercise any
right it may have under the Condominium Documents to cancel, terminate or
revoke the same. Any request for approval by Administrative Agent pursuant to
this paragraph shall be made to, and approved by, Administrative Agent prior
to, if necessary, submitting such request to the Attorney General of the State
of New York 


                    (10)
Borrower acknowledges and agrees that nothing set forth in this Section or in
any of the other provisions of the Loan Documents shall impose upon
Administrative Agent or any Lender any obligation or responsibility to Borrower
under the Condominium Declaration. 


          Section
9.24 Industrial and Commercial Incentive Program. 


                    (1)
On or before the Closing Date, Borrower shall have delivered to Administrative
Agent the preliminary application submitted to the New York City Department of
Finance (“Department of Finance”) evidencing the Project’s eligibility for the
partial tax exemption in accordance with paragraph 24 of Schedule
4-Part A. 


                    (2)
On or before the Closing Date, pursuant to Title 11, Chapter 2, Part 4 of the
Administrative Code of the City of New York City and the regulations
promulgated thereunder, as amended from time to time (“Code”), Borrower shall
have made a thorough and complete final application to the Department of
Finance for a certificate of eligibility for a partial exemption of real
property taxes for the Improvements for a twenty-five (25) year period (“ICIP
Tax Exemption”) subsequent to commencing construction on the Project. Borrower
shall provide a copy of the said application to Administrative Agent evidencing
that same was received by the Department of Finance on or before the Closing
Date. 


                    (3)
Pursuant to the Code, Borrower shall have submitted a thorough and complete
final construction report within sixty (60) days of completing construction on
the Project to the Department of Finance for a certificate of eligibility for
the ICIP Tax Exemption. Borrower shall have provided a copy of the certificate
of eligibility, or if unavailable, a letter from the Department of Finance
evidencing same, to Administrative Agent promptly upon Borrower’s receipt
thereof and in any event no later than sixty (60) days after the submission of
such application, or such later date to the extent that the Borrower’s failure
to receive such certificate is due to Unavoidable Delay. 


                    (4)
Borrower shall do or shall have done all things necessary and required by
statute, rule and regulation to maintain the availability of the ICIP Tax
Exemption, including, but not limited to the following: (i) having notified the
ICIP unit of the Department of Finance (“ICIP Unit”) and the New York City
Department of Small Business Services/Division of Labor Services (“Division of
Labor Services”) in writing fifteen (15) business days prior to commencing
construction on the Project; (ii) submitting construction employment reports
for the Project to the Division of Labor Services; and, if requested by the
Department of Finance, filing a certificate of continuing use with the ICIP
Unit annually in each year of benefit period. 


79





                    (5)
Notwithstanding anything to the contrary in this Agreement, Borrower’s failure
to obtain a certificate of eligibility for a ICIP Tax Exemption pursuant to
clauses (2) and (3) above shall not constitute a default provided that (a)
Borrower has otherwise complied with the provisions of this Section 9.24,
(b) is diligently proceeding to obtain such certificate and (iii) the only
cause for Borrower’s inability to obtain the applicable certificate is the
Department of Finance’s bureaucratic delay in issuing the applicable
certificate and not for reasons related to Borrower’s actions or eligibility. 


ARTICLE 10


EVENTS OF DEFAULT


          Each
of the following shall constitute an Event of Default under the Loans: 


          Section 10.1 Payments. Borrower’s
failure to (i) pay any regularly scheduled installment of principal, interest,
the Administrative Fee or other amount due under the Loan Documents or (ii)
make a deposit of cash, and/or deliver a Collateral Letter of Credit required
under the Loan Documents, within five (5) days of (and including) the date when
due, or Borrower’s failure to pay the Loans at the Maturity Date, whether by
acceleration or otherwise. 


          Section 10.2 Insurance. Borrower’s
failure to maintain insurance as required under Section 3.1 of this
Agreement. 


          Section 10.3 Single Purpose Entity.
If Borrower or any Borrower Party materially breaches its covenant under Section
9.6 with respect to its status as a Single Purpose Entity. 


          Section 10.4 Taxes. If any of the
Taxes are not paid when the same are due and payable and such failure continues
for ten (10) Business Days after Borrower has actual knowledge of such failure.



          Section 10.5 Sale, Encumbrance, Etc.
The sale, transfer, conveyance, pledge, mortgage or assignment of any part or
all of the Project, or any interest therein, or of any interest in Borrower, in
violation of Section 9.1 of this Agreement. 


          Section 10.6 Representations and Warranties.
Any representation or warranty made in any Loan Document proves to be untrue in
any material respect when made or deemed made. 


          Section 10.7 Other Encumbrances. Any
material default under any document or instrument, other than the Loan
Documents, evidencing or creating a Lien on the Project or any part thereof
that is not cured within any applicable notice or cure period. 


          Section 10.8 Various Covenants.
Borrower defaults under any of its obligations under Section 4.2(3) (pertaining
to the TI/LC Letter of Credit), Section 6.2 (pertaining to lease
approvals) and Sections 9.3 (management of the Project), 9.7
(transactions with Affiliates), 9.8 (limitations on debt), 9.15
(hedge arrangements), 9.18 (zoning and use changes) or 9.19
(ERISA), of this Agreement. 


          Section 10.9 Reserved. 


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          Section 10.10 Financial Covenants.
Borrower defaults under any of its obligations under Section 9.16 of
this Agreement. 


          Section 10.11 Involuntary Bankruptcy or Other
Proceeding. Commencement of an involuntary case or other
proceeding against Borrower, any Borrower Party or any other Person having an
ownership or security interest in the Project (each, a “Bankruptcy Party”) which seeks
liquidation, reorganization or other relief with respect to it or its debts or
other liabilities under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeks the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any of its property,
and such involuntary case or other proceeding shall remain undismissed or
unstayed for a period of sixty (60) days; or an order for relief against a
Bankruptcy Party shall be entered in any such case under the Federal Bankruptcy
Code. 


          Section 10.12 Voluntary Petitions, Etc.
Commencement by a Bankruptcy Party of a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to itself or
its Debts or other liabilities under any bankruptcy, insolvency or other
similar law or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official for it or any of its property, or consent
by a Bankruptcy Party to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other proceeding
commenced against it, or the making by a Bankruptcy Party of a general
assignment for the benefit of creditors, or the failure by a Bankruptcy Party,
or the admission by a Bankruptcy Party in writing of its inability, to pay its
debts generally as they become due, or any action by a Bankruptcy Party to
authorize or effect any of the foregoing. 


          Section 10.13 Indebtedness. Any of
the Borrower Parties, or any combination thereof, shall default in the payment
when due of any principal of or interest on any of its other Indebtedness
aggregating $1,000,000.00 or more and such default shall not be cured within
any applicable notice or cure period provided with respect to such Indebtedness;
or any event specified in any note, agreement, indenture or other document
evidencing or relating to any such Indebtedness shall occur if the effect of
such event is to cause, or (with the giving of any notice or the lapse of time
or both) to permit the holder or holders of such Indebtedness to cause, such
Indebtedness to become due, or to be prepaid in full (whether by redemption,
purchase, offer to purchase or otherwise); prior to its stated maturity. 


          Section 10.14 Dissolution. Any of
the Borrower Parties shall be terminated, dissolved or liquidated (as a matter
of law or otherwise) or proceedings shall be commenced by any Person (including
any Borrower Party) seeking the termination, dissolution or liquidation of any
Borrower Party, which, in the case of actions by Persons other than a Borrower
Party or any of their Affiliates, shall continue unstayed and in effect for a
period of sixty (60) or more days. 


          Section 10.15 Judgments. One or more
(i) judgments for the payment of money (exclusive of judgment amounts fully
covered by insurance where the insurer has admitted liability in respect of
such judgment) aggregating with respect to any Borrower Party (other than
Guarantor) in excess of $1,000,000.00 shall be rendered against such party or
parties or (ii) non-monetary judgments, orders or decrees shall be entered
against any of the Borrower Parties which have or would reasonably be expected
to have a Material Adverse Effect, and, in either case, the same shall remain
undischarged for a period of thirty (30) consecutive days during 


81





which
execution shall not be effectively stayed, or any action shall be legally taken
by a judgment creditor to attach or levy upon any assets of such Borrower Party
to enforce any such judgment. 


          Section 10.16 Security. The Liens
created by the Security Documents shall at any time not constitute a valid and
perfected first priority Lien (subject to the Permitted Encumbrances) on the
collateral intended to be covered thereby in favor of Administrative Agent,
free and clear of all other Liens (other than the Permitted Encumbrances), or,
except for expiration in accordance with its terms, any of the Security
Documents shall for whatever reason be terminated or cease to be in full force
and effect, or the enforceability thereof shall be contested by any Borrower
Party or any of their Affiliates, provided that, as long as the security
provided by the Security Documents shall not be impaired, with respect to a
Lien (other than a Permitted Encumbrance) on the collateral, Borrower shall
have ten (10) days for monetary Liens and thirty (30) days for all non-monetary
Liens within which to provide Administrative Agent with evidence that such Lien
has been bonded or otherwise removed of record. 


          Section 10.17 Guarantor Documents.
Guarantor shall (i) default under any Guarantor Document beyond any applicable
notice and grace period; or (ii) revoke or attempt to revoke, contest or
commence any action against its obligations under any Guarantor Document. 


          Section 10.18 Security Accounts.
Borrower uses, or permits the use of, funds from any reserves or from any
Security Accounts for any purpose other than the purpose for which such funds
were disbursed from such reserves or the Security Accounts and such default is
not cured within ten (10) days of Borrower’s knowledge of such default. 


          Section
10.19 Reserved. 


          Section 10.20 Covenants. Borrower’s
failure to perform or observe any of the agreements and covenants contained in
this Agreement or in any of the other Loan Documents and not specified above,
and, if such failure is susceptible to being cured, the continuance of such
failure for thirty (30) days after notice by Administrative Agent to Lead
Borrower; provided, however, subject to any shorter period for
curing any failure by Borrower as specified in any of the other Loan Documents,
Borrower shall have an additional ninety (90) days to cure such failure if (1)
such failure does not involve the failure to make payments on a monetary
obligation; (2) such failure cannot reasonably be cured within thirty (30)
days; (3) Borrower is diligently undertaking to cure such default, and (4)
Borrower has provided Administrative Agent with security reasonably
satisfactory to Administrative Agent against any reasonably anticipated
interruption of payment or impairment of collateral as a result of such
continuing failure. 


          Section 10.21 Co-Borrower Documents.
Either Borrower shall (i) default under any Co-Borrower Document beyond any
applicable notice and grace period; or (ii) revoke or attempt to revoke,
contest or commence any action against its obligations under any Co-Borrower
Document. 


          Notwithstanding anything set forth in this Article 10,
no cure periods will be afforded for any willful breach hereunder or under any
of the Loan Documents. 


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ARTICLE 11


REMEDIES


          Section 11.1 Remedies - Insolvency Events.
Upon the occurrence of any Event of Default described in Section 10.8 or
10.9, and all amounts due under the Loan Documents immediately shall
become due and payable, all without written notice and without presentment,
demand, protest, notice of protest or dishonor, notice of intent to accelerate
the maturity thereof, notice of acceleration of the maturity thereof, or any
other notice of default of any kind, all of which are hereby expressly waived
by Borrower; provided, however, if the Bankruptcy Party under Section
10.8 or 10.9 is other than Borrower, then all amounts due under the
Loan Documents shall become immediately due and payable at Administrative
Agent’s election. 


          Section 11.2 Remedies - Other Events.
Except as set forth in Section 11.1 above, while any Event of Default
exists, Administrative Agent may (1) by written notice to Lead Borrower,
declare the entire amount of the Loans to be immediately due and payable without
presentment, demand, protest, notice of protest or dishonor, notice of intent
to accelerate the maturity thereof, notice of acceleration of the maturity
thereof, or other notice of default of any kind, all of which are hereby
expressly waived by Borrower, (2) terminate the obligation, if any, of the
Lenders to advance amounts hereunder, and (3) exercise all rights and remedies
therefor under the Loan Documents and at law or in equity. 


          Section 11.3 Administrative Agent’s Right to
Perform the Obligations. If Borrower shall fail, refuse or
neglect to make any payment or perform any act required by the Loan Documents,
then while any Event of Default exists, and without notice to or demand upon
Borrower and without waiving or releasing any other right, remedy or recourse
Administrative Agent or any Lender may have because of such Event of Default,
Administrative Agent may (but shall not be obligated to) make such payment or
perform such act for the account of and at the expense of Borrower, and shall
have the right to enter upon the Project for such purpose and to take all such
action thereon and with respect to the Project as it may deem necessary or
appropriate. If Administrative Agent shall elect to pay any sum due with
reference to the Project, Administrative Agent may do so in reliance on any
bill, statement or assessment procured from the appropriate Governmental
Authority or other issuer thereof without inquiring into the accuracy or
validity thereof. Similarly, in making any payments to protect the security
intended to be created by the Loan Documents, Administrative Agent shall not be
bound to inquire into the validity of any apparent or threatened adverse title,
Lien, encumbrance, claim or charge before making an advance for the purpose of preventing
or removing the same. Additionally, if any Hazardous Materials affect or
threaten to affect the Project, Administrative Agent may (but shall not be
obligated to) give such notices and take such actions as it deems necessary or
advisable in order to abate the discharge of any Hazardous Materials or remove
the Hazardous Materials. Borrower shall indemnify, defend and hold
Administrative Agent and the Lenders harmless from and against any and all
losses, liabilities, claims, damages, expenses, obligations, penalties,
actions, judgments, suits, costs or disbursements of any kind or nature
whatsoever, including reasonable attorneys’ fees and disbursements, incurred or
accruing by reason of any acts performed by Administrative Agent or any Lender
pursuant to the provisions of this Section 11.3, including those arising
from the joint, concurrent, or comparative negligence of Administrative Agent
and any Lender, except as a result of Administrative Agent’s 


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or any
Lender’s gross negligence or willful misconduct. All sums paid by
Administrative Agent pursuant to this Section 11.3, and all other sums
expended by Administrative Agent or any Lender to which it shall be entitled to
be indemnified, together with interest thereon at the Default Rate from the date
of such payment or expenditure until paid, shall constitute additions to the
Loans, shall be secured by the Loan Documents and shall be paid by Borrower to
Administrative Agent upon demand. 


ARTICLE 12


MISCELLANEOUS


          Section 12.1 Notices. Any notice
required or permitted to be given under this Agreement shall be in writing and
either shall be (a) mailed by certified mail, postage prepaid, return receipt
requested, (b) sent by overnight air courier service, (c) personally delivered
to a representative of the receiving party, or (d) sent by telecopy (provided
an identical notice is also sent simultaneously by mail, overnight courier, or
personal delivery as otherwise provided in this Section 12.1) to the
intended recipient at the “Address for Notices” specified below its name on the
signature pages hereof. Any communication so addressed and mailed shall be
deemed to be given on the earliest of (1) when actually delivered, (2) on the
first Business Day after deposit with an overnight air courier service, or (3)
on the third Business Day after deposit in the United States mail, postage
prepaid, in each case to the address of the intended addressee, and any
communication so delivered in person shall be deemed to be given when receipted
for by, or actually received by Administrative Agent, a Lender, Lead Borrower
or Borrower, as the case may be. If given by telecopy, a notice shall be deemed
given and received when the telecopy is transmitted to the party’s telecopy
number specified above, and confirmation of complete receipt is received by the
transmitting party during normal business hours or on the next Business Day if
not confirmed during normal business hours, and an identical notice is also
sent simultaneously by mail, overnight courier, or personal delivery as
otherwise provided in this Section 2.1. Any party may designate a change
of address by written notice to each other party by giving at least ten (10)
days’ prior written notice of such change of address. 


          Section 12.2 Amendments, Waivers, Etc.


                    (1)
Subject to any consents required pursuant to this Section 12.2 and any
other provisions of this Agreement and any other Loan Document which expressly
require the consent, approval or authorization of the Majority Lenders, this
Agreement and any other Loan Document may be modified or supplemented only by
an instrument in writing signed by Borrower and Administrative Agent; provided
that, Administrative Agent may (without any Lender’s consent) give or withhold
its agreement to any amendments of the Loan Documents or any waivers or
consents in respect thereof or exercise or refrain from exercising any other
rights or remedies which Administrative Agent may have under the Loan Documents
or otherwise provided that such actions do not, in Administrative Agent’s
judgment reasonably exercised, materially adversely affect the value of any
collateral, taken as a whole, or represent a departure from Administrative
Agent’s standard of care described in Section 14.5, except that
Administrative Agent will not, without the consent of such Lender, agree to any
amendment, waiver or consent for which a Lender’s consent is required pursuant
to Section 14.9. 


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                    (2)
Notwithstanding anything to contrary contained in this Agreement, any
modification or supplement of Article 14, or of any of the rights or
duties of Administrative Agent hereunder, shall require the consent of
Administrative Agent. 


          Section 12.3 Limitation on Interest.
It is the intention of the parties hereto to conform strictly to applicable
usury laws. Accordingly, all agreements between Borrower, Administrative Agent
and the Lenders with respect to the Loans are hereby expressly limited so that
in no event, whether by reason of acceleration of maturity or otherwise, shall
the amount paid or agreed to be paid to Administrative Agent or any Lender or
charged by any Lender for the use, forbearance or detention of the money to be
lent hereunder or otherwise, exceed the maximum amount allowed by law. If the Loans
would be usurious under applicable law (including the laws of the State and the
laws of the United States of America), then, notwithstanding anything to the
contrary in the Loan Documents: (1) the aggregate of all consideration which
constitutes interest under applicable law that is contracted for, taken,
reserved, charged or received under the Loan Documents shall under no
circumstances exceed the maximum amount of interest allowed by applicable law,
and any excess shall be credited on the Notes by the holders thereof (or, if
the Notes have been paid in full, refunded to Borrower); and (2) if maturity is
accelerated by reason of an election by Administrative Agent in accordance with
the terms hereof, or in the event of any prepayment, then any consideration
which constitutes interest may never include more than the maximum amount
allowed by applicable law. In such case, excess interest, if any, provided for
in the Loan Documents or otherwise, to the extent permitted by applicable law,
shall be amortized, prorated, allocated and spread from the date of advance
until payment in full so that the actual rate of interest is uniform through
the term hereof. If such amortization, proration, allocation and spreading is
not permitted under applicable law, then such excess interest shall be
cancelled automatically as of the date of such acceleration or prepayment and,
if theretofore paid, shall be credited on the Notes (or, if the Notes have been
paid in full, refunded to Borrower). The terms and provisions of this Section
12.3 shall control and supersede every other provision of the Loan
Documents. The Loan Documents are contracts made under and shall be construed
in accordance with and governed by the laws of the State, except that if at any
time the laws of the United States of America permit the Lenders to contract
for, take, reserve, charge or receive a higher rate of interest than is allowed
by the laws of the State (whether such federal laws directly so provide or
refer to the law of any state), then such federal laws shall to such extent
govern as to the rate of interest which the Lenders may contract for, take,
reserve, charge or receive under the Loan Documents. 


          Section 12.4 Invalid Provisions. If
any provision of any Loan Document is held to be illegal, invalid or
unenforceable, such provision shall be fully severable; the Loan Documents
shall be construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part thereof; the remaining provisions thereof
shall remain in full effect and shall not be affected by the illegal, invalid,
or unenforceable provision or by its severance therefrom; and in lieu of such
illegal, invalid or unenforceable provision there shall be added automatically
as a part of such Loan Document a provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible to be legal,
valid and enforceable. 


          Section 12.5 Reimbursement of Expenses.
Borrower shall pay or reimburse Administrative Agent and/or the Lenders within
ten (10) Business Days of demand by the applicable party for: (1) all expenses
incurred by Administrative Agent in connection with the 


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Loans,
including reasonable fees and expenses of Administrative Agent’s attorneys,
environmental, engineering and other consultants, and fees, charges or taxes
for the negotiation, recording or filing of Loan Documents, (2) all expenses of
Administrative Agent in connection with the administration of the Loans,
including audit costs, inspection fees, reasonable attorneys’ fees and
disbursement, settlement of condemnation and casualty awards, and premiums for
title insurance and endorsements thereto, (3) all of Administrative Agent’s
reasonable costs and expenses (including reasonable fees and disbursements of
Administrative Agent’s external counsel) incurred in connection with the
syndication of the Loans to the Lenders, and (4) Administrative Agent and the
Lenders for all amounts expended, advanced or incurred by Administrative Agent
and the Lenders to collect the Notes, or to enforce the rights of
Administrative Agent and the Lenders under this Agreement or any other Loan
Document, or to defend or assert the rights and claims of Administrative Agent
and the Lenders under the Loan Documents or with respect to the Project (by
litigation or other proceedings), which amounts will include all court costs,
reasonable attorneys’ fees and expenses, fees and expenses of financial
advisors, fees of auditors and accountants, and investigation expenses as may
be incurred by Administrative Agent and the Lenders in connection with any such
matters (whether or not litigation is instituted), together with interest at
the Default Rate on each such amount from the date of disbursement until the
date of reimbursement to Administrative Agent and the Lenders, all of which
shall constitute part of the Loans and shall be secured by the Loan Documents. 


          Section 12.6 Approvals; Third Parties; Conditions.
All approval rights retained or exercised by Administrative Agent and the
Lenders with respect to leases, contracts, plans, studies and other matters are
solely to facilitate the Lenders’ credit underwriting, and shall not be deemed
or construed as a determination that the Lenders have passed on the adequacy
thereof for any other purpose and may not be relied upon by Borrower or any
other Person. This Agreement is for the sole and exclusive use of
Administrative Agent, the Lenders, the Lead Borrower and Borrower and may not
be enforced, nor relied upon, by any Person other than Administrative Agent,
the Lenders, the Lead Borrower and Borrower. All conditions of the obligations
of Administrative Agent and the Lenders hereunder, including any obligation to
make advances, are imposed solely and exclusively for the benefit of
Administrative Agent and the Lenders, their successors and assigns, and no
other Person shall have standing to require satisfaction of such conditions or
be entitled to assume that the Lenders will refuse to make advances in the
absence of strict compliance with any or all of such conditions, and no other
Person shall, under any circumstances, be deemed to be a beneficiary of such
conditions, any and all of which may be freely waived in whole or in part by
Administrative Agent and the Lenders at any time in their sole discretion. 


          Section 12.7 Lenders and Administrative Agent Not
in Control; No Partnership. None of the covenants or other
provisions contained in this Agreement shall, or shall be deemed to, give
Administrative Agent or any Lender the right or power to exercise control over
the affairs or management of Borrower, the powers of Administrative Agent and
the Lenders being limited to the rights to exercise the remedies referred to in
the Loan Documents. The relationship between Borrower and the Lenders is, and
at all times shall remain, solely that of debtor and creditor. No covenant or
provision of the Loan Documents is intended, nor shall it be deemed or
construed, to create a partnership, joint venture, agency or common interest in
profits or income between Administrative Agent, the Lenders, Lead Borrower and
Borrower or to create an equity in the Project in Administrative Agent or any
Lender. Administrative Agent and the 


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Lenders
neither undertake nor assume any responsibility or duty to Borrower or to any
other person with respect to the Project or the Loans, except as expressly
provided in the Loan Documents; and notwithstanding any other provision of the
Loan Documents: (1) neither Administrative Agent nor any Lender is, nor shall be
construed as, a partner, joint venturer, alter ego, manager, controlling person
or other business associate or participant of any kind of Borrower or any
Borrower Party or any of their respective stockholders, members, or partners
and neither Administrative Agent nor any Lender intends to ever assume such
status; (2) no Lender or Administrative Agent shall in any event be liable for
any Debts, expenses or losses incurred or sustained by Borrower or any Borrower
Party; and (3) no Lender or Administrative Agent shall be deemed responsible
for or a participant in any acts, omissions or decisions of Borrower or any
Borrower Party or any of their respective stockholders, members, or partners.
Administrative Agent, the Lenders and Borrower disclaim any intention to create
any partnership, joint venture, agency or common interest in profits or income
between Administrative Agent, the Lenders and Borrower, or to create an equity
in the Project in Administrative Agent or any Lender, or any sharing of
liabilities, losses, costs or expenses. 


          Section 12.8 Time of the Essence.
Time is of the essence with respect to this Agreement. 


          Section 12.9 Successors and Assigns.
Subject to the provisions of Section 12.24, this Agreement shall be
binding upon and inure to the benefit of Administrative Agent, the Lenders and
Borrower and the respective successors and permitted assigns. 


          Section 12.10 Renewal, Extension or Rearrangement.
All provisions of the Loan Documents shall apply with equal effect to each and
all promissory notes and amendments thereof hereinafter executed which in whole
or in part represent a renewal, extension, increase or rearrangement of the
Loans. For portfolio management purposes, the Lenders may elect to divide the
Loans into two or more separate loans evidenced by separate promissory notes so
long as the payment and other obligations of Borrower are not effectively
increased or otherwise modified. Borrower agrees to cooperate with
Administrative Agent and the Lenders and to execute such documents as
Administrative Agent reasonably may request to effect such division of the
Loans. 


          Section 12.11 Waivers. No course of
dealing on the part of Administrative Agent or any Lender, their officers,
employees, consultants or agents, nor any failure or delay by Administrative
Agent or any Lender with respect to exercising any right, power or privilege of
Administrative Agent or any Lender under any of the Loan Documents, shall
operate as a waiver thereof. 


          Section 12.12 Cumulative Rights.
Rights and remedies of Administrative Agent and the Lenders under the Loan
Documents shall be cumulative, and the exercise or partial exercise of any such
right or remedy shall not preclude the exercise of any other right or remedy. 


          Section 12.13 Singular and Plural.
Words used in this Agreement and the other Loan Documents in the singular,
where the context so permits, shall be deemed to include the plural and vice
versa. The definitions of words in the singular in this Agreement and the other
Loan 


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Documents
shall apply to such words when used in the plural where the context so permits
and vice versa. 


          Section 12.14 Phrases. When used in
this Agreement and the other Loan Documents, the phrase “including” shall mean
“including, but not limited to,” the phrases “satisfactory to any Lender” or
“satisfactory to Administrative Agent” shall mean in form and substance
satisfactory to such Lender or Administrative Agent, as the case may be, in all
respects, the phrases “with Lender’s consent”, “with Lender’s approval”, “with
Administrative Agent’s consent” or “with Administrative Agent’s approval” shall
mean such consent or approval at Lender’s or Administrative Agent’s, as the
case may be, discretion, and the phrases “acceptable to Lender” or “acceptable
to Administrative Agent” shall mean acceptable to Lender or Administrative
Agent, as the case may be, at such party’s sole discretion.” 


          Section 12.15 Exhibits and Schedules.
The exhibits and schedules attached to this Agreement are incorporated herein
and shall be considered a part of this Agreement for the purposes stated
herein. 


          Section 12.16 Titles of Articles, Sections and
Subsections. All titles or headings to articles, sections,
subsections or other divisions of this Agreement and the other Loan Documents
or the exhibits hereto and thereto are only for the convenience of the parties
and shall not be construed to have any effect or meaning with respect to the
other content of such articles, sections, subsections or other divisions, such
other content being controlling as to the agreement between the parties hereto.



          Section 12.17 Promotional Material.
Borrower authorizes Administrative Agent and each of the Lenders to issue press
releases, advertisements and other promotional materials in connection with
Administrative Agent’s or such Lender’s own promotional and marketing
activities, and describing the Loans in general terms or in detail and
Administrative Agent’s or such Lender’s participation in the Loans. All
references to Administrative Agent or any Lender contained in any press
release, advertisement or promotional material issued by Borrower shall be
approved in writing by Administrative Agent and such Lender in advance of
issuance. 


          Section 12.18 Survival. All of the
representations, warranties, covenants, and indemnities of Borrower hereunder
(including environmental matters under Article 5, the obligations under Sections
2.9(1), 2.9(5) and 2.9(6)), and under the indemnification
provisions of the other Loan Documents shall survive (a) the repayment in full
of the Loans and the release of the Liens evidencing or securing the Loans, (b)
the transfer (by sale, foreclosure, conveyance in lieu of foreclosure or
otherwise) of any or all right, title and interest in and to the Project to any
party, whether or not an Affiliate of Borrower and (c) in the case of any
Lender that may assign any interest in its Commitment or Loans hereunder in
accordance with the terms of this Agreement, the making of such assignment,
notwithstanding that such assigning Lender may cease to be a “Lender”
hereunder. 


          Section 12.19 WAIVER OF JURY TRIAL.
BORROWER, ADMINISTRATIVE AGENT AND EACH LENDER HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH 


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THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTION OF EITHER PARTY OR ANY EXERCISE
BY ANY PARTY OF THEIR RESPECTIVE RIGHTS UNDER THE LOAN DOCUMENTS OR IN ANY WAY
RELATING TO THE LOANS OR THE PROJECT (INCLUDING, WITHOUT LIMITATION, ANY ACTION
TO RESCIND OR CANCEL THIS AGREEMENT, AND ANY CLAIM OR DEFENSE ASSERTING THAT
THIS AGREEMENT WAS FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR VOIDABLE). THIS
WAIVER IS A MATERIAL INDUCEMENT FOR ADMINISTRATIVE AGENT AND EACH LENDER TO
ENTER THIS AGREEMENT. 


          Section 12.20 Remedies of Borrower.
It is expressly understood and agreed that, notwithstanding any applicable
law or any provision of this Agreement or the other Loan Documents to the
contrary, the liability of Administrative Agent and each Lender (including
their respective successors and assigns) and any recourse of Borrower against
Administrative Agent and each Lender shall be limited solely and exclusively to
their respective interests in the Loans and/or Commitments or the Project.
Without limiting the foregoing, in the event that a claim or adjudication is
made that Administrative Agent, any of the Lenders, or their agents, acted
unreasonably or unreasonably delayed acting in any case where by applicable law
or under this Agreement or the other Loan Documents, Administrative Agent, any
Lender or any such agent, as the case may be, has an obligation to act
reasonably or promptly, or otherwise violated this Agreement or the Loan
Documents, Borrower agrees that none of Administrative Agent, the Lenders or
their agents shall be liable for any incidental, indirect, special, punitive,
consequential or speculative damages or losses resulting from such failure to
act reasonably or promptly in accordance with this Agreement or the other Loan
Documents. 


          Section 12.21 Governing Law. 


                    (1) THIS AGREEMENT WAS NEGOTIATED IN THE STATE OF NEW
YORK, AND MADE BY ADMINISTRATIVE AGENT AND LENDERS AND ACCEPTED BY BORROWER IN
THE STATE OF NEW YORK, AND THE PROCEEDS OF THE NOTES DELIVERED PURSUANT HERETO
WERE DISBURSED FROM THE STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A
SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION
EMBODIED HEREBY, AND IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE,
THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND PERFORMED IN SUCH STATE AND ANY APPLICABLE LAW OF THE UNITED
STATES OF AMERICA, EXCEPT THAT AT ALL TIMES THE PROVISIONS FOR THE CREATION,
PERFECTION, AND ENFORCEMENT OF THE LIENS AND SECURITY INTERESTS CREATED
PURSUANT HERETO AND PURSUANT TO THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY
AND CONSTRUED ACCORDING TO THE LAW OF THE STATE IN WHICH THE PROJECT IS
LOCATED, IT BEING UNDERSTOOD THAT, TO THE FULLEST EXTENT PERMITTED BY THE LAW
OF SUCH STATE, THE 


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LAW OF THE STATE OF NEW YORK SHALL GOVERN THE
CONSTRUCTION, VALIDITY AND ENFORCEABILITY OF ALL LOAN DOCUMENTS AND ALL OF THE
OBLIGATIONS ARISING HEREUNDER OR THEREUNDER. TO THE FULLEST EXTENT PERMITTED BY
LAW, EACH OF BORROWER, ADMINISTRATIVE AGENT AND EACH LENDER HEREBY
UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY
OTHER JURISDICTION GOVERNS THIS AGREEMENT AND THE NOTES, AND THIS AGREEMENT AND
THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW. 


                    (2)
ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST ADMINISTRATIVE AGENT, ANY LENDER
OR BORROWER ARISING OUT OF OR RELATING TO THE LOAN DOCUMENTS MAY AT
ADMINISTRATIVE AGENT’S OPTION (WHICH DECISION SHALL BE MADE BY THE MAJORITY
LENDERS) BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN THE CITY OF NEW YORK,
COUNTY OF NEW YORK, PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW AND BORROWER WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR
HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT,
ACTION OR PROCEEDING, AND BORROWER HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. BORROWER DOES
HEREBY DESIGNATE AND APPOINT NATIONAL REGISTERED AGENTS, INC., 875 AVENUE OF
THE AMERICAS, SUITE 501, NEW YORK, NY 10001 AS ITS AUTHORIZED AGENT TO ACCEPT
AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY AND ALL PROCESS WHICH MAY BE
SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY FEDERAL OR STATE COURT IN
NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF PROCESS UPON SAID AGENT AT SAID
ADDRESS AND WRITTEN NOTICE OF SAID SERVICE MAILED OR DELIVERED TO BORROWER IN
THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE
OF PROCESS UPON BORROWER, IN ANY SUCH SUIT, ACTION OR PROCEEDING IN THE STATE
OF NEW YORK. BORROWER (A) SHALL GIVE PROMPT NOTICE TO ADMINISTRATIVE AGENT OF
ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (B) MAY AT ANY TIME AND
FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT WITH AN OFFICE IN NEW
YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE DESIGNATED AS THE
PERSON AND ADDRESS FOR SERVICE OF PROCESS), AND (C) SHALL PROMPTLY DESIGNATE
SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN OFFICE IN NEW YORK,
NEW YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR. 


          Section 12.22 Entire Agreement. This
Agreement and the other Loan Documents embody the entire agreement and
understanding between Administrative Agent, the Lenders and Borrower and
supersede all prior agreements and understandings between such parties relating
to the subject matter hereof and thereof. Accordingly, the Loan Documents may
not be 


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contradicted
by evidence of prior, contemporaneous, or subsequent oral agreements of the
parties. There are no unwritten oral agreements between the parties. If any
conflict or inconsistency exists between this Agreement and any of the other
Loan Documents, the terms of this Agreement shall control. 


          Section 12.23 Counterparts. This
Agreement may be executed in multiple counterparts, each of which shall
constitute an original, but all of which shall constitute one document. 


          Section 12.24 Assignments and Participations. 


                    (1)
Assignments by Borrower. Borrower
may not assign any of its rights or obligations hereunder or under the Notes
without the prior consent of all of the Lenders and Administrative Agent. 


                    (2)
Assignments by the Lenders. Each
Lender may assign any of its Loans, its Note and its Commitment (but only with
the consent of Administrative Agent); provided that: 


                    (a)
no such consent by Administrative Agent shall be required in the case of any
assignment by any Lender to another Lender or an Affiliate of such Lender or
such other Lender (provided that in the case of an assignment to an Affiliate
of the assigning Lender, the assigning Lender will not be released from its
obligations under the Loan Documents and Administrative Agent may continue to
deal only with such assigning Lender); 


                    (b)
except to the extent Administrative Agent shall otherwise consent, any such
partial assignment (other than to another Lender or an Affiliate of a Lender)
shall be in an amount at least equal to $10,000,000; 


                    (c)
each such assignment (including an assignment to another Lender or an Affiliate
of a Lender) by a Lender of its Loans or Commitment shall be made in such
manner so that the same portion of its Loans and Commitment is assigned to the
respective assignee; 


                    (d)
subject to the applicable Lender’s compliance with the provisions of clauses
(b) and (c) above, Administrative Agent’s consent to an assignment shall not be
unreasonably withheld, delayed or conditioned if (i) such assignment is made to
an Eligible Assignee, and (ii) the provisions of clause (e) have been
satisfied; and 


                    (e)
upon execution and delivery by the assignee (even if already a Lender) to
Borrower and Administrative Agent of an Assignment and Acceptance pursuant to
which such assignee agrees to become a “Lender” hereunder (if not already a
Lender) having the Commitment and Loans specified in such instrument, and upon
consent thereto by Administrative Agent to the extent required above, the
assignee shall have, to the extent of such assignment (unless otherwise
consented to by Administrative Agent), the obligations, rights and benefits of
a Lender hereunder holding the Commitment and Loans (or portions thereof)
assigned to it (in addition to the Commitment and Loans, if any, theretofore
held by such assignee) and the assigning Lender shall, to the extent of such
assignment, be released from the Commitment (or portion thereof) so assigned.
Upon each such assignment the assigning Lender shall pay Administrative Agent a
processing and recording fee of $3,500 (unless the assignee is 


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an Affiliate
of the Assigning Lender) and the reasonable fees and disbursements of
Administrative Agent’s counsel incurred in connection therewith. 


                    (3)
Participations.


                    (a)
A Lender may sell or agree to sell to one or more other Persons (each a “Participant”) a participation in all or
any part of any Loans held by it, or in its Commitment, provided (A)
such Lender’s obligations under this Agreement and the other Loan Documents
shall remain unchanged, (B) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (C) 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 the other Loan Documents. In no event
shall a Lender that sells a participation agree with the Participant to take or
refrain from taking any action hereunder or under any other Loan Document
except that such Lender may agree with the Participant that it will not,
without the consent of the Participant, agree to (i) increase or extend the
term of such Lender’s Commitment, (ii) extend the date fixed for the payment of
principal of or interest on the related Loan or Loans or any portion of any fee
hereunder payable to the Participant, (iii) reduce the amount of any such
payment of principal, (iv) reduce the rate at which interest is payable
thereon, or any fee hereunder payable to the Participant, to a level below the
rate at which the Participant is entitled to receive such interest or fee or
(v) consent to any modification, supplement or waiver hereof or of any of the
other Loan Documents to the extent that the same, under Section 12.2,
requires the consent of each Lender. Subject to subsection (3)(b) of
this Section 12.24, Borrower agrees that each Participant shall be
entitled to the benefits of Sections 2.9(1), 2.9(5), and 2.9(6)
to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to subsection (2) of this Section 12.24. To
the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 12.24 as though it were a Lender; provided
that such Participant agrees to be subject to Section 12.24 as though it
were a Lender. 


                    (b)
A Participant shall not be entitled to receive any greater payment under Section
2.9(1) or 2.9(6) than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with Borrower’s prior
written consent. A Participant that is a non-U.S. Person that would become a
Lender shall not be entitled to the benefits of Section 2.9(6) unless
Lead Borrower is notified of the participation sold to such Participant and
such Participant agrees, for the benefit of Borrower, to comply with Section
2.9(6) as though it were a Lender 


                    (4)
Certain Pledges. In addition to
the assignments and participations permitted under the foregoing provisions of
this Section 12.24 (but without being subject thereto), any Lender may
(without notice to Borrower, Administrative Agent or any other Lender and
without payment of any fee) assign and pledge all or any portion of its Loans
and its Note to any Federal Reserve Bank as collateral security pursuant to
Regulation A and any operating circular issued by such Federal Reserve Bank,
and such Loans and Note shall be fully transferable as provided therein. No
such assignment shall release the assigning Lender from its obligations
hereunder. 


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                    (5)
Provision of Information to Assignees and
Participants. A Lender may furnish any information concerning
Borrower, any Borrower Party or any of their respective Affiliates or the
Project in the possession of such Lender from time to time to assignees and
participants (including prospective assignees and participants); provided that
such assignee and participant agree to be bound by the terms of Section
12.29. 


                    (6)
No Assignments to Borrower or Affiliates.
Anything in this Section 12.24 to the contrary notwithstanding, no
Lender may assign or participate any interest in any Loan held by it hereunder
to Borrower or any of its Affiliates without the prior consent of each Lender. 


          Section 12.25 Brokers. Borrower
hereby represents to Administrative Agent and each Lender that Borrower has not
dealt with any broker, underwriters, placement agent, or finder in connection
with the transactions contemplated by this Agreement and the other Loan
Documents. Borrower hereby agrees to indemnify and hold Administrative Agent
and each Lender harmless from and against any and all claims, liabilities,
costs and expenses of any kind in any way relating to or arising from a claim
by any Person that such Person acted on behalf of Borrower in connection with
the transactions contemplated herein. 


          Section 12.26 Right of Set-off. 


                    (1)
Upon the occurrence and during the continuance of any Event of Default, each of
the Lenders is, subject (as between the Lenders) to the provisions of subsection
(3) of this Section 12.26, hereby authorized at any time and from
time to time, without notice to Borrower (any such notice being expressly
waived by Borrower) and 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) at any time held, and other indebtedness at any time owing, by such
Lender in any of its offices, in Dollars or in any other currency, to or for
the credit or the account of Borrower against any and all of the respective
obligations of Borrower now or hereafter existing under the Loan Documents,
irrespective of whether or not such Lender or any other Lender shall have made
any demand hereunder and although such obligations may be contingent or
unmatured and such deposits or indebtedness may be unmatured. Each Lender
hereby acknowledges that the exercise by any Lender of offset, set-off,
banker’s lien, or similar rights against any deposit or other indebtedness of
Borrower whether or not located in New York or any other state with certain
laws restricting lenders from pursuing multiple collection methods, could
result under such laws in significant impairment of the ability of all the
Lenders to recover any further amounts in respect of the Loan. Therefore, each Lender agrees that no Lender shall
exercise any such right of set-off, banker’s lien, or otherwise, against any
assets of Borrower (including all general or special, time or demand,
provisional or other deposits and other indebtedness owing by such Lender to or
for the credit or the account of Borrower) without the prior written consent of
Administrative Agent.


                    (2)
Each Lender shall promptly notify Lead Borrower and Administrative Agent after
any such set-off and application, provided that the failure to give such
notice shall not affect the validity of such set-off and application. The
rights of the Lenders under this Section 12.26 are in addition to other
rights and remedies (including other rights of set-off) which the Lenders may
have. 


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                    (3)
Each Lender agrees that it shall turn over to Administrative Agent any payment
(whether voluntary or involuntary, through the exercise of any right of setoff
or otherwise) on account of the Loans held by it in excess of its ratable
portion (in accordance with this Agreement and any separate agreement among
Administrative Agent and the Lenders) of payments on account of the Loans
obtained by all the Lenders. 


          Section 12.27 Limitation on Liability of
Administrative Agent’s and the Lenders’ Officers, Employees, etc.
Any obligation or liability whatsoever of Administrative Agent or any Lender
which may arise at any time under this Agreement or any other Loan Document
shall be satisfied, if at all, out of Administrative Agent’s or such Lender’s
respective assets only. No such obligation or liability shall be personally
binding upon, nor shall resort for the enforcement thereof be had to, the
property of any of Administrative Agent’s or any Lender’s shareholders,
directors, officers, employees or agents, regardless of whether such obligation
or liability is in the nature of contract, tort or otherwise. 


          Section 12.28 Cooperation with Syndication.
Borrower acknowledges that Arranger intends to syndicate a portion of the
Commitments to one or more Lenders (the “Syndication”) and in connection
therewith, Borrower will take all actions as Arranger may reasonably request to
assist Arranger in its Syndication effort. Without limiting the generality of
the foregoing, Borrower shall, at the request of Arranger (i) facilitate the
review of the Loan and the Project by any prospective Lender; (ii) assist
Arranger and otherwise cooperate with Arranger in the preparation of
information offering materials (which assistance may include reviewing and
commenting on drafts of such information materials and drafting portions
thereof); (iii) deliver updated information on Borrower and the Project; (iv)
make representatives of Borrower available to meet with prospective Lenders at
tours of the Project and bank meetings; (v) facilitate direct contact between the
senior management and advisors of Borrower and any prospective Lender; and (vi)
provide Arranger with all information reasonably deemed necessary by it to
complete the Syndication successfully. Borrower agrees to take such further
action, in connection with documents and amendments to the Loan Documents, as
may reasonably be required to effect such Syndication; provided, however, that
notwithstanding any other provision of this Section 12.28 or Section
12.29 to the contrary, Borrower shall not be required to enter into any
such documents and amendments which would alter any of the material economic
terms of the Loan Documents or which would create new or greater obligations or
liabilities on Borrower Parties under the Loan Documents. 


          Section 12.29 Severance of Loan. Loan
Components. The Administrative Agent shall have the right, at any
time, with respect to all or any portion of the Loan, to (a) cause the Notes,
the Mortgage and the other Security Documents to be severed and/or split into
two or more separate notes, mortgages and other security agreements, so as to
evidence and secure one or more senior and subordinate mortgage loans, (b)
create one or more senior and subordinate notes (i.e., an A/B or A/B/C
structure) secured by the Mortgage and the other Security Documents, (c) create
multiple components of the Notes (and allocate or re-allocate the outstanding
principal amount of the Loan among such components) or (d) otherwise sever the
Loan into two or more loans secured by the Mortgage and the other Security
Documents (each of clauses (a) through (d), a “Bifurcation”); in each such case, in whatever proportions
and priorities as Administrative Agent may so direct in its discretion to
Administrative Agent; provided, however, that in each such instance (i) the
outstanding principal amount of all the Notes evidencing the Loan (or 


94





components of
such Notes) immediately following such Bifurcation shall be equal to the
outstanding principal amount of the Loan immediately prior to such Bifurcation,
and (ii) the weighted average Applicable Margin and/or Base Rate, as
applicable, with respect to the new notes immediately after such Bifurcation
and at all times prior to the occurrence of any Event of Default shall not
exceed the weighted average Applicable Margin and/or Base Rate, as applicable,
with respect to the initial Notes delivered hereunder (as such interest rates
are subject to being adjusted from time to time in accordance herewith,
including as a result of the accrual of interest at the Default Rate). If
requested by Administrative Agent in writing, Borrower shall execute within ten
(10) days after such request, a severance agreement, amendments to or
amendments and restatements of any one or more Loan Documents, and such
documentation as Administrative Agent may reasonably request to evidence and/or
effectuate any such Bifurcation, all in form and substance reasonably
satisfactory to Administrative Agent. 


          Section 12.30 Confidentiality. Each
of Administrative Agent and the Lenders and Borrower Parties and Sponsor agrees
to maintain the confidentiality of the Confidential Information, except that
Confidential Information may be disclosed (a) to it and its Affiliates’
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such
disclosure is made shall be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any Governmental Authority, (c) to the extent required by
Applicable Law 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 under any other Loan Document or any suit, action or proceeding
relating to this Agreement or any other Loan Document or the enforcement of
rights hereunder or thereunder, (f) to any assignee or pledgee of or
Participant in, or any prospective assignee or pledgee of or Participant in,
any of its rights or obligations under this Agreement or any actual or
prospective counterparty (or its advisors) to any swap or derivative
transaction relating to Borrower and its obligations, (g) with the consent of
Borrower or Administrative Agent, as applicable, or (h) to the extent such
Confidential Information (i) becomes publicly available other than as a result
of a breach of this Section 12.29 or of arrangements entered into
pursuant hereto or (ii) becomes available to such party from a source other
than Borrower or its Affiliates or the Administrative Agent or the Lender or
their Affiliates, as applicable; provided, however, the obligation to maintain
the confidentiality of the Confidential Information provided hereunder shall
expire twelve (12) months after the date upon which the Loans hereunder are
indefeasibly paid in full. Administrative Agent and each Lender, to the extent
required to maintain the confidentiality of Information as provided in this Section
12.29, 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 Confidential Information as a commercial banker
exercising reasonable and customary business practices would accord to its own
confidential information. Notwithstanding anything herein to the contrary, the
information subject to this Section 12.29 shall not include, and
Administrative Agent and each Lender may disclose without limitation of any
kind, any information with respect to the “tax treatment” and “tax structure”
(in each case, within the meaning of Treasury Regulation Section 1.6011 4) of
the transactions contemplated hereby and all materials of any kind (including
opinions or other tax analyses) that are provided to Administrative Agent or
such Lender relating to such tax treatment and tax structure. For purposes of
this Section 12.29, the information that shall be treated as
Confidential Information shall mean, in the case of Administrative Agent and
the Lenders, written non-public information concerning the Project 


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and, in the
case of Borrower, information concerning the terms and conditions set forth in
the Loan Documents. 


          Section 12.31 Designation of Lead Borrower as Agent
for Borrower.


                    (1)
Each Borrower hereby irrevocably designates and appoints the Lead Borrower as
that Borrower’s agent to obtain loans and advances under the Loan. As the
disclosed principal for its agent, each Borrower shall be obligated to the
Agent and the Lenders on account of loans and advances so made under the Loan
as if made directly by the Lenders to that Borrower, notwithstanding the manner
by which such loans and advances are recorded on the books and records of the
Lead Borrower and/or of any Borrower (including, without limitation, on account
of any such treatment of said loan or advance as an equity investment in a
Borrower by Lead Borrower). Lead Borrower shall ensure that each Borrower
receives from the Loan proceeds an amount or benefit that is a reasonably equivalent
value for the grants of security made by each Borrower to Administrative Agent.



                    (2)
Each Borrower recognizes that credit available to it under the Loan is in
excess of and on better terms than it otherwise could obtain on and for its own
account and that one of the reasons therefor is its joining in the credit
facility contemplated herein with all other Borrowers. Consequently, each
Borrower, jointly and severally, hereby assumes and agrees fully, faithfully,
and punctually to discharge all obligations of all of the Borrowers under the
Loan Documents. 


                    (3)
The proceeds of the Loan shall be deposited into an account in the name of the
Lead Borrower or as otherwise indicated by the Lead Borrower. Neither the Agent
nor any Lender shall have any obligation to see to the application of such
proceeds. 


                    (4)
Each Borrower hereby irrevocably designates and appoints the Lead Borrower as
that Borrower’s attorney-in-fact to act in the Borrower’s name and stead and to
do and perform all matters, to grant to the Agent for the benefit of the
Lenders a security interest in the Collateral, transact all business, and make,
execute and acknowledge all Loan Documents and other instruments relating to
this Agreement including but not limited to, this Agreement, the Note, and the
Security Documents. The Borrowers hereby acknowledge and agree that the power
of attorney created hereby is coupled with an interest. 


ARTICLE 13


RECOURSE LIABILITY


          Section 13.1 Recourse Liability. No
past, present or future member, or any past, present or future shareholder,
partner, member, officer, employee, servant, executive, director, agent,
authorized representative or Affiliate of Borrower or any member of Borrower,
(each such Person, an “Exculpated Party”)
shall be personally liable for payments due hereunder or under any other Loan
Document or for the performance of any obligation, or breach of any
representation or warranty made by Borrower hereunder or thereunder. The sole
recourse of the Lenders and Administrative Agent for satisfaction of the
obligations of Borrower hereunder and under any other Loan Document shall be
against Borrower and its assets and not against any 


96





assets or
property of any such Exculpated Party other than the direct or indirect
ownership interest of such Exculpated Party in Borrower. In the event that a
Potential Default or Event of Default occurs in connection with such
obligations, no action shall be brought against any such Exculpated Party by
virtue of its direct or indirect ownership interest in Borrower. In the event
of foreclosure or other sale or disposition of the Project, no judgment for any
deficiency upon the obligations hereunder or under any other Loan Document
shall be obtainable by the Lenders or Administrative Agent against any such
Exculpated Party. Notwithstanding the foregoing, nothing in this Section
13.1 shall affect or diminish the obligations of Borrower or Guarantor
under or in respect of each Loan Document to which it is a party, including
Guarantor Documents (including the right to name any Guarantor in any
foreclosure action in connection with its obligations under the Guarantor
Documents) and the Co-Borrower Documents. Notwithstanding the foregoing
provisions of this Section 13.1, each Exculpated Party shall be
personally (and on a full recourse basis) liable for and shall indemnify and
defend Administrative Agent and the Lenders from and against, and shall hold
Administrative Agent and the Lenders harmless of, from and against any
deficiency, liability, loss, damage, costs, and expenses (including legal fees
and disbursements) suffered by Administrative Agent and/or the Lenders and
caused by, or arising out of or as a result of any of the following: (i) such
Person’s commission of a criminal act, (ii) such Person’s failure to comply
with the provisions of the Loan Documents prohibiting a transfer or Change of
Control; (iii) such Person’s misappropriation of any cash flow or other revenue
derived from or in respect of the Project, including security deposits,
insurance proceeds, condemnation awards, or any rental, sales or other income
derived directly or indirectly from the Project, or the misapplication of any
of the foregoing sums, in either event, in contravention of any provision of
this Agreement or the other Loan Documents; (iv) such Person’s fraud or
misrepresentation or inaccurate certification made at any time in connection
with the Loan Documents or the Loans; (v) such Person’s intentional
interference with Administrative Agent’s (or the Lenders’) exercise of its
rights under any of the Loan Documents; (vi) such Person’s intentional
destruction or removal of fixtures or personal property securing the Loans
unless replaced by items of equal value and utility; (vii) such Person’s
misapplication or misappropriation of funds disbursed from the Security
Accounts or the Controlled Accounts; (viii) such Person’s commissions of
intentional waste to or of the Project or any portion thereof or failure to
maintain the Project in the manner required by the Loan Documents; (ix) failure
to maintain the insurance coverage required by the Loan Documents; (x) failure
to pay taxes, assessments and any other charges, including, without limitation,
charges for labor or materials, which could result in prior liens against any
portion of the Project; (xi) willful misconduct; (xii) Borrower files a
voluntary petition under the Federal Bankruptcy Code or any other Federal or
state bankruptcy or insolvency law; (xiii) such Person files or joins in the
filing of, or solicits or acts in concert with, or colludes or conspires with
petitioning creditors with respect to, an involuntary petition against Borrower
under the Federal Bankruptcy Code or any other Federal or state bankruptcy or
insolvency law; (xiv) Borrower files an answer consenting to or otherwise
acquiescing in or joining in any involuntary petition filed against it, by any
other Person under the Federal Bankruptcy Code or any other Federal or state
bankruptcy or insolvency law; (xv) such Person consents to or acquiesces in or
joins in an application for the appointment of a custodian, receiver, trustee,
or examiner for Borrower or any portion of the Project; (xvi) Borrower makes an
assignment for the benefit of creditors, or admits, in writing or in any legal
proceeding, its insolvency or inability to pay its debts as they become due; or
(xvii) Borrower violates any of provisions set forth in the definition of
Single 


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Purpose Entity
and such violation results in a substantive consolidation of the Borrower or
its assets in the bankruptcy of an Affiliate. 


          Section 13.2 No Waiver of Certain Rights.
Notwithstanding anything to the contrary contained in this Agreement or the
other Loan Documents, (A) neither of Administrative Agent nor the Lenders shall
be deemed to have waived any right which Administrative Agent or any Lender may
have under Sections 506(a), 506(b), 1111(b) or any other provision of the
Federal Bankruptcy Code, as such sections may be amended, to file a claim for
the full amount due to Administrative Agent or such Lender under the Loan
Documents or to require that all collateral shall continue to secure the
amounts due under the Loan Documents and (B) Administrative Agent may pursue
any power of sale, bring any foreclosure action, any action for specific
performance, or any other appropriate action or proceedings against Borrower or
any other Person for the purpose of enabling the Administrative Agent and the
Lenders to realize upon the collateral for the Loans (including, without
limitation, any Net Operating Income to the extent provided for in the Loan
Documents) or to obtain the appointment of a receiver. 


ARTICLE 14


ADMINISTRATIVE AGENT


          Section 14.1 Appointment, Powers and Immunities.
Each Lender hereby appoints and authorizes Administrative Agent to act as its
agent hereunder and under the other Loan Documents with such powers as are
specifically delegated to Administrative Agent by the terms of this Agreement
and of the other Loan Documents, together with such other powers as are
reasonably incidental thereto. Administrative Agent (which term as used in this
sentence and in Section 14.5 and the first sentence of Section 14.6
shall include reference to its Affiliates and its own and its Affiliates’
officers, directors, employees and agents): 


                    (a)
shall have no duties or responsibilities except those expressly set forth in
this Agreement and in the other Loan Documents, and shall not by reason of this
Agreement or any other Loan Document be a trustee for any Lender except to the
extent that Administrative Agent acts as an agent with respect to the receipt
or payment of funds, nor shall Administrative Agent have any fiduciary duty to
Borrower nor shall any Lender have any fiduciary duty to Borrower or any other
Lender; 


                    (b)
shall not be responsible to the Lenders for any recitals, statements,
representations or warranties contained in this Agreement or in any other Loan
Document, or in any certificate or other document referred to or provided for
in, or received by any of them under, this Agreement or any other Loan Document
(except of representations, warranties and certifications expressly made by
Administrative Agent to a Lender in writing as set forth in any Assignment and
Acceptance executed by Administrative Agent in favor of a Lender), or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement, any Note or any other Loan Document or any other document
referred to or provided for herein or therein or for any failure by Borrower or
any other Person to perform any of its obligations hereunder or thereunder; and



98






                    (c)
shall not be responsible for any action taken or omitted to be taken by it
hereunder or under any other Loan Document or under any other document or
instrument referred to or provided for herein or therein or in connection
herewith or therewith, except to the extent any such action taken or omitted
violates Administrative Agent’s standard of care set forth in the first
sentence of Section 14.5. 


                    (d)
shall not, except to the extent expressly instructed by the Majority Lenders
with respect to collateral security under the Security Documents, be required
to initiate or conduct any litigation or collection proceedings hereunder or
under any other Loan Document; and 


                    (e)
shall not be required to take any action which is contrary to this Agreement or
any other Loan Document or Applicable law. 


The
relationship between Administrative Agent and each Lender is a contractual
relationship only, and nothing herein shall be deemed to impose on
Administrative Agent any obligations other than those for which express
provision is made herein or in the other Loan Documents. Administrative Agent
may employ agents and attorneys-in-fact, and may delegate all or any part of
its obligations hereunder, to third parties and shall not be responsible for
the negligence or misconduct of any such agents, attorneys-in-fact or third
parties selected by it in good faith. Administrative Agent may deem and treat
the payee of a Note as the holder thereof for all purposes hereof unless and
until a notice of the assignment or transfer thereof shall have been filed with
Administrative Agent, any such assignment or transfer to be subject to the
provisions of Section 12.24. Except to the extent expressly provided in Sections
14.8, the provisions of this Article 14 are solely for the benefit of
Administrative Agent and the Lenders, and Borrower shall not have any rights as
a third-party beneficiary of any of the provisions hereof and the Lenders may
Modify or waive such provisions of this Article 14 in their sole and
absolute discretion. 


          Section
14.2 Reliance by Administrative Agent.
Administrative Agent shall be entitled to rely upon any certification, notice
or other communication (including, without limitation, any thereof by
telephone, telecopy, telegram or cable) reasonably believed by it to be genuine
and correct and to have been signed or sent by or on behalf of the proper
Person or Persons, and upon advice and statements of legal counsel, independent
accountants and other experts selected by Administrative Agent. As to any
matters not expressly provided for by this Agreement or any other Loan
Document, Administrative Agent shall in all cases be fully protected in acting,
or in refraining from acting, hereunder or thereunder in accordance with
instructions given by the Majority Lenders, and such instructions of the
Majority Lenders and any action taken or failure to act pursuant thereto shall
be binding on all of the Lenders. 


          Section
14.3 Defaults.


                    (1)
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of a Potential Default or Event of Default, other than a payment
Event of Default arising out of Section 10.1, unless Administrative
Agent has received notice from a Lender, Lead Borrower or Borrower specifying
such Potential Default or Event of Default and stating that such notice is a
“Notice of Default”. In the event that Administrative Agent receives such a
notice of the occurrence of a Potential Default or Event of Default,
Administrative Agent shall give 


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prompt notice
thereof to the Lenders. Within ten (10) days of delivery of such notice of
Potential Default or Event of Default from Administrative Agent to the Lenders
(or such shorter period of time as Administrative Agent determines is
necessary), Administrative Agent and the Lenders shall consult with each other
to determine a proposed course of action. Administrative Agent shall (subject
to Section 14.7) take such action with respect to such Potential Default
or Event of Default as shall be directed by the Majority Lenders, provided
that, (A) unless and until Administrative Agent shall have received such
directions, Administrative Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, including decisions (1) to make
protective advances that Administrative Agent determines are necessary to
protect or maintain the Project and (2) to foreclose on any of the Project or
exercise any other remedy, with respect to such Potential Default or Event of
Default as it shall deem advisable in the interest of the Lenders except to the
extent that this Agreement expressly requires that such action be taken, or not
be taken, only with the consent or upon the authorization of all of the Lenders
and (B) no actions approved by the Majority Lenders shall violate the Loan
Documents or applicable law; provided further that if no consensus is reached
by Majority lenders within one hundred twenty (120) days, Administrative Agent
shall commence a foreclosure action with respect to the Project. Each of the
Lenders acknowledges and agrees that no individual Lender may separately
enforce or exercise any of the provisions of any of the Loan Documents
(including the Notes) other than through Administrative Agent. Administrative
Agent shall advise the Lenders of all material actions which Administrative
Agent takes in accordance with the provisions of this Section 14.3(1)
and shall continue to consult with the Lenders with respect to all of such actions.
Notwithstanding the foregoing, if the Majority Lenders shall at any time direct
that a different or additional remedial action be taken from that already
undertaken by Administrative Agent, including the commencement of foreclosure
proceedings, such different or additional remedial action shall be taken in
lieu of or in addition to, the prosecution of such action taken by
Administrative Agent; provided that all actions already taken by
Administrative Agent pursuant to this Section 14.3(1) shall be valid and
binding on each Lender. All money (other than money subject to the provisions
of Section 14.7) received from any enforcement actions, including the
proceeds of a foreclosure sale of the Project, shall be applied, first,
to the payment or reimbursement of Administrative Agent for expenses incurred
in accordance with the provisions of Sections 14.3(2), (3) and (4)
and 14.5 and to the payment of the Administrative Fee to the extent not
paid by Borrower pursuant to Section 14.11, second, to the payment
or reimbursement of the Lenders for expenses incurred in accordance with the
provisions of Sections 14.3(2), (3) and (4) and 14.5; third,
to the payment or reimbursement of the Lenders for any advances made pursuant
to Section 14.3(2); and fourth, to the Lenders in accordance with
their respective Proportionate Shares (and, if applicable, to Eurohypo
Counterparty under any Hedge Agreement for its Additional Interest in
accordance with Section 9.15), unless an Unpaid Amount is owed pursuant
to Section 14.12, in which event such Unpaid Amount shall be deducted
from the portion of such proceeds of the Defaulting Lender and be applied to
payment of such Unpaid Amount to the Special Advance Lender. 


                    (2)
All losses with respect to interest (including interest at the Default Rate)
and other sums payable pursuant to the Notes or incurred in connection with the
Loans shall be borne by the Lenders in accordance with their respective
proportionate shares of the Loans. All losses incurred in connection with the
Loans, the enforcement thereof or the realization of the security therefor,
shall be borne by the Lenders in accordance with their respective proportionate
shares of the Loan, and the Lenders shall promptly, upon request, remit to
Administrative Agent 


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their
respective proportionate shares of (i) any actual out of pocket expenses
incurred by Administrative Agent in connection with any Default to the extent
any expenses have not been paid by Borrower, (ii) any advances made to pay
taxes or insurance or otherwise to preserve the Lien of the Security Documents
or to preserve and protect the Project, whether or not the amount necessary to
be advanced for such purposes exceeds the amount of the Mortgage, and (iii) any
other actual out of pocket expenses incurred in connection with the enforcement
of the Mortgage or other Loan Documents. To the extent any such advances are
recovered in connection with the enforcement of the Mortgage or the other Loan
Documents, each Lender shall be paid its proportionate share of such recovery
after deduction of the expenses of Administrative Agent and the Lenders. 


                    (3)
If, at the direction of the Majority Lenders or otherwise as provided in Section
14.3(1), any action(s) is brought to collect on the Notes or enforce the
Security Documents or any other Loan Document, such action shall (to the extent
permitted under applicable law and the decisions of the court in which such
action is brought) be an action brought by Administrative Agent and the Lenders,
collectively, to collect on all or a portion of the Notes or enforce the
Security Documents or any other Loan Document and counsel selected by
Administrative Agent shall prosecute any such action on behalf of
Administrative Agent and the Lenders, and Administrative Agent and the Lenders
shall consult and cooperate with each other in the prosecution thereof. All
decisions concerning the appointment of a receiver while such action is
pending, the conduct of such receivership, the conduct of such action, the
collection of any judgment entered in such action and the settlement of such
action shall be made by Administrative Agent. The costs and expenses of any
such action shall be borne by the Lenders in accordance with each of their
respective proportionate shares. 


                    (4)
If, at the direction of the Majority Lenders or otherwise as provided in
Section 14.3(1), any action(s) is brought to foreclose the Mortgage, such
action shall (to the extent permitted under applicable law and the decisions of
the court in which such action is brought) be an action brought by
Administrative Agent and the Lenders, collectively, to foreclose all or a
portion of the Mortgage and collect on the Notes. Counsel selected by
Administrative Agent shall prosecute any such foreclosure on behalf of
Administrative Agent and the Lenders and Administrative Agent and the Lenders
shall consult and cooperate with each other in the prosecution thereof. All
decisions concerning the appointment of a receiver, the conduct of such
foreclosure, the acceptance of a deed in lieu of foreclosure, the bid on behalf
of Administrative Agent and the Lenders at the foreclosure sale of the Project,
the manner of taking and holding title to the Project (other than as set forth
in subsection (6) below), and the commencement and conduct of any
deficiency judgment proceeding shall be made by Administrative Agent. All
decisions concerning the sale of the Project after foreclosure shall be made by
the Majority Lenders, provided, however, the Lenders agree that
if Administrative Agent receives a bona fide “all cash” (as determined by
Administrative Agent in its reasonable discretion) offer for the purchase of
the entire Project which has been approved in writing by Administrative Agent
and (i) such offer (A) equals or exceeds ninety percent (90%) of the most
recent appraised value of the Project as established by an Appraisal that has
been completed within six (6) months of such offer and (B) is equal to or
greater than ninety percent (90%) of the outstanding principal balance of the
Loan, and (ii) the consent of the Majority Lenders is not achieved within
ninety (90) days from the date that Administrative Agent received such offer,
then, notwithstanding anything to the contrary contained in this subsection
(4), Administrative 


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Agent is
irrevocably authorized to accept such offer on behalf of all Lenders. The costs
and expenses of foreclosure will be borne by the Lenders in accordance with
their respective proportionate shares.


                    (5)
If title is acquired to the Project after a foreclosure sale or by a deed in
lieu of foreclosure, title shall be held by Administrative Agent in its own
name in trust for the Lenders or, at Administrative Agent’s election, in the
name of a wholly owned subsidiary of Administrative Agent on behalf of the
Lenders, or a subsidiary wholly owned by the Lenders and managed by the
Administrative Agent. 


                    (6)
If Administrative Agent (or its subsidiary) acquires title to the Project or is
entitled to possession of the Project during or after the foreclosure, all
material decisions with respect to the possession, ownership, development,
construction, control, operation, leasing, and management of the Project shall
be made by Administrative Agent. All income or other money received after so
acquiring title to or taking possession of the Project with respect to the
Project, including income from the operation and management of the Project and
the proceeds of a sale of the Project, shall be applied (subject to the terms
of any separate agreement among Administrative Agent and the Lenders), first,
to the payment or reimbursement of Administrative Agent and the expenses
incurred in accordance with the provisions of this Article 14 and to the
payment of the Administrative Fee to the extent not paid by Borrower pursuant
to Section 14.11, second, to the payment of operating expenses,
taxes and insurance with respect to the Project; third, to the
establishment of reasonable reserves for the operation of the Project; fourth,
to the payment or reimbursement of the Lenders for any advances made pursuant
to Section 14.3(2); fifth to fund any capital improvement,
leasing and other reserves; and sixth, to the Lenders in accordance with
their respective Proportionate Shares (and, if applicable, to Eurohypo
Counterparty under any Hedge Agreement for its Additional Interest in
accordance with Section 9.15), unless an Unpaid Amount is owed pursuant
to Section 14.12, in which event such Unpaid Amount shall be deducted
from the portion of such proceeds of the Defaulting Lender and be applied to
payment of such Unpaid Amount to the Special Advance Lender. 


          Section
14.4 Rights as a Lender. With respect to its
Commitment and the Loans made by it Eurohypo (and any successor acting as
Administrative Agent) in its capacity as a Lender hereunder shall have the same
rights and powers hereunder as any other Lender and may exercise the same as
though it were not acting as Administrative Agent, and the term “Lender” or “Lenders”
shall, unless the context otherwise indicates, include Administrative Agent in
its individual capacity. Eurohypo (and any successor acting as Administrative
Agent) and its Affiliates may (without having to account therefor to any
Lender) lend money to, make investments in and generally engage in any kind of
lending, trust or other business with Borrower (and any of its Affiliates)(to
the extent otherwise permitted by the terms of this Agreement) as if it were
not acting as Administrative Agent, and Eurohypo and its Affiliates may accept
fees and other consideration from Borrower for services in connection with this
Agreement or otherwise without having to account for the same to the Lenders. 


          Section
14.5 Standard of Care; Indemnification. In
performing its duties under the Loan Documents, Administrative Agent will
exercise the same degree of care as it normally exercises in connection with
real estate loans that it syndicates and administers and holds for its own
account, but Administrative Agent shall have no further responsibility to any
Lender except 


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as expressly
provided herein and except for its own gross negligence or willful misconduct
which resulted in actual loss to such Lender, and, except to such extent,
Administrative Agent shall have no responsibility to any Lender for the failure
by Administrative Agent to comply with any of Administrative Agent’s
obligations to Borrower under the Loan Documents or otherwise. Subject to the
terms of any separate agreement among Administrative Agent and the Lenders, the
Lenders agree to indemnify Administrative Agent (to the extent not reimbursed
under Section 12.5, but without limiting the obligations of Borrower
under Section 12.5) ratably in accordance with the aggregate principal
amount of the Loans held by the Lenders (or, if no Loans are at the time
outstanding, ratably in accordance with their respective Commitments), for any
and all liabilities, obligations, losses (other than losses due to Borrower’s
failure to pay any interest, principal and fees payable by Borrower under the
Loan Documents), damages, penalties, actions, judgments, suits, costs, expenses
or disbursements of any kind and nature whatsoever that may be imposed on,
incurred by or asserted against Administrative Agent (including by any Lender)
arising out of or by reason of any investigation in or in any way relating to
or arising out of this Agreement or any other Loan Document or any other
documents contemplated by or referred to herein or therein or the transactions contemplated
hereby or thereby (including, without limitation, the costs and expenses that
Borrower is obligated to pay under Section 12.5, but excluding, unless
an Event of Default has occurred and is continuing, normal administrative costs
and expenses incident to the performance of its agency duties hereunder) or the
enforcement of any of the terms hereof or thereof or of any such other
documents, provided that no Lender shall be liable for any of the foregoing to
the extent they arise from Administrative Agent’s breach of its standard of
care set forth in the first sentence of this Section. 


          Section
14.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender agrees that it has, independently and without reliance on
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of
Borrower and its Affiliates and decision to enter into this Agreement and that
it will, independently and without reliance upon Administrative Agent or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under this Agreement or under any other Loan Document.
Subject to the provisions of the first sentence of Section 14.5,
Administrative Agent shall not be required to keep itself informed as to the
performance or observance by Borrower of this Agreement or any of the other
Loan Documents or any other document referred to or provided for herein or
therein or to inspect the Project or the books of Borrower or any of its
Affiliates. Except for notices, reports and other documents and information
expressly required to be furnished to the Lenders by Administrative Agent
hereunder or as otherwise agreed by Administrative Agent and the Lenders,
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the affairs, financial
condition or business of Borrower or any of its Affiliates that may come into
the possession of Administrative Agent or any of its Affiliates. 


          Section
14.7 Failure to Act. Except for action
expressly required of Administrative Agent hereunder, and under the other Loan
Documents, Administrative Agent shall in all cases be fully justified in
failing or refusing to act hereunder and thereunder unless it shall receive
further assurances to its satisfaction from the Lenders of their
indemnification obligations under Section 14.5 against any and all
liability and expense that may be incurred by it by reason of taking or
continuing to take any such action. 


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          Section
14.8 Successor Administrative Agent.
Administrative Agent may resign at any time by giving notice thereof to the
Lenders and Lead Borrower. The Majority Lenders (including all Lenders
exclusive of Administrative Agent, for the purposed of determining the Majority
Lenders), on the basis of gross negligence or willful misconduct (as to which a
final determination is made in a judicial proceeding in which Administrative
Agent has had an opportunity to be heard, which determination includes a
specific finding that Administrative Agent had acted in a grossly negligent
manner or had engaged in willful misconduct), may remove Administrative Agent
at any time by giving thirty (30) days’ prior written notice to Administrative
Agent, Borrower and the other Lenders. Upon any such resignation or removal,
the Majority Lenders shall have the right to appoint a successor Administrative
Agent that shall be a Person that meets the qualifications of an Eligible
Assignee. If no successor Administrative Agent shall have been so appointed by
the Majority Lenders and shall have accepted such appointment within thirty
(30) days after the retiring Administrative Agent’s giving of notice of
resignation or the Majority Lenders’ giving notice of removal, as the case may
be, then the retiring Administrative Agent may, on behalf of the Lenders,
appoint a successor Administrative Agent, that shall be an institutional lender
that meets the requirements of the immediately preceding sentence. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring (or retired) Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and prospective
obligations hereunder (if not already discharged therefrom as provided above in
this Section 14.8). The fees payable by Borrower to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise
agreed between Borrower and such successor. After any retiring Administrative
Agent’s resignation hereunder as Administrative Agent, the provision of this
Article 14 and Section 12.5 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting
as Administrative Agent. 


          Section
14.9 Consents under Loan Documents.
Administrative Agent may (without any Lender’s consent) give or withhold its
agreement to any amendments of the Loan Documents or any waivers or consents in
respect thereof or exercise or refrain from exercising any other rights or
remedies which Administrative Agent may have under the Loan Documents or
otherwise provided that such actions do not, in Administrative Agent’s
reasonable judgment, materially adversely affect the value of any collateral,
taken as a whole, or represent a departure from Administrative Agent’s standard
of care described in Section 14.5, except that, except as otherwise
provided in any separate agreement entered into among Administrative Agent and
the Lenders, Administrative Agent shall not agree to the following (provided
that no Lender’s consent shall be required for any of the following which are
otherwise required or contemplated under the Loan Documents): 


                    (a)
increase the Commitment of any Lender without the consent of such Lender; 


                    (b)
reduce the principal amount of the Loans or reduce the interest rate thereon
without the consent of each Lender affected thereby; 


104





                    (c)
increase the interest rate on the Loans (exclusive of imposing the Default
Rate) without the consent of all Lenders; 


                    (d)
extend any stated payment date for principal of or interest on the Loans
payable to any Lender without the consent of each Lender affected thereby; 


                    (e)
release Borrower, any Guarantor or any other party from liability under the
Loan Documents (except for any assigning Lender pursuant to Section 12.24
and any resigning Administrative Agent pursuant to Section 14.8 without
the consent of each Lender (except that no such consent shall be required, and
Administrative Agent is hereby authorized, to release Borrower and Guarantor
upon payment of the Obligations in full in accordance with the terms of the
Loan Documents); 


                    (f)
release or subordinate in whole or in part any material portion of the
collateral given as security for the Loans without the consent of each Lender
(except that no such consent shall be required, and Administrative Agent is
hereby authorized, to release any Lien covering the collateral under the
Security Documents upon payment of the Obligations in full in accordance with
the terms of the Loan Documents); 


                    (g)
modify any of the provisions of Section 12.2 or this Section 14.9
or the definition of “Majority Lenders” or any other provision in the Loan
Documents specifying the number or percentage of Lenders required to waive,
amend or modify any rights thereunder or make any determination or grant any
consent thereunder without the consent of each Lender; 


                    (h)
modify the terms of, or definition of, any Event of Default without the consent
of each Lender; 


                    (i)
consent to (i) the sale, transfer or encumbrance of any portion of the Project
(or any interest therein) or any direct or indirect ownership interest therein
and (ii) the incurrence by Borrower of any additional indebtedness secured by
the Project, in each case to the extent such consent is required under the Loan
Documents (and subject to any standard of reasonability set forth therein)
without the consent of each Lender; 


                    (j)
A modification or waiver of conditions to extension of the Maturity Date
without the consent of each Lender; 


                    (k)
A modification or waiver of any financial covenants of Borrower in the Loan
Documents without the consent of the Majority Lenders; 


                    (l)
A material modification of the terms of any cash management arrangement or lockbox
without the consent of the Majority Lenders; or 


                    (m)
a waiver of any Event of Default without consent of the Majority Lenders. 


          Notwithstanding
anything to the contrary contained in this Agreement, (a) any modification or
supplement of ARTICLE 14, or of any of the rights or duties of
Administrative Agent hereunder, shall require the consent of Administrative
Agent and (b) Administrative Agent is hereby authorized to enter into
modifications or amendments to the Loan Documents 


105





which are
ministerial in nature, including the preparation and execution of Uniform
Commercial Code forms, Assignments and Assumptions and subordination and
non-disturbance agreements with tenants at the Project. If Administrative Agent
solicits any consents or approvals from the Lenders under any of the Loan
Documents, each Lender shall within ten (10) Business Days of receiving such
request, give Administrative Agent written notice of its consent or approval or
denial thereof; provided that, if Administrative Agent’s request states that
failure to respond within ten (10) Business Days shall be deemed consent and
any Lender does not respond within such ten (10) Business Days, such Lender
shall be deemed to have authorized Administrative Agent to vote such Lender’s
interest with respect to the matter which was the subject of Administrative
Agent’s solicitation as Administrative Agent elects. Any such solicitation by
Administrative Agent for a consent or approval shall be in writing and shall
include a description of the matter or thing as to which such consent or
approval is requested and shall include Administrative Agent’s recommended
course of action or determination in respect thereof.


          Section
14.10 Authorization. Administrative Agent is
hereby authorized by the Lenders to execute, deliver and perform in accordance
with the terms of each of the Loan Documents to which Administrative Agent is
or is intended to be a party and each Lender agrees to be bound by all of the
agreements of Administrative Agent contained in such Loan Documents. Borrower
shall be entitled to rely on all written agreements, approvals and consents
received from Administrative Agent as being that also of the Lenders, without
obtaining separate acknowledgment or proof of authorization of same. 


          Section
14.11 Administrative Fee. So long as the
Commitments are in effect and until payment in full of all obligations under
this Agreement, the Notes and the other Loan Documents, Borrower shall pay to
Administrative Agent, for its sole account, the Administrative Fee. The
Administrative Fee shall be payable annually in advance commencing on the
Closing Date pursuant to the Fee Letter. 


          Section
14.12 Defaulting Lenders.


                    (1)
If any Lender (a “Defaulting Lender”) shall for any reason fail to (i)
make any respective Loan required pursuant to the terms of this Agreement or
(ii) pay its proportionate share of an advance or disbursement to protect the
Project or the Lien of the Security Documents in accordance with this
Agreement, any of the other Lenders may, but shall not be obligated to, make
all or a portion of the Defaulting Lender’s Loan or proportionate share of such
advance, provided that such Lender gives the Defaulting Lender and Administrative
Agent prior notice of its intention to do so. The right to make such advances
in respect of the Defaulting Lender shall be exercisable first by the Lender
holding the greatest proportionate share and thereafter to each of the Lenders
in descending order of their respective proportionate shares of the Loans or in
such other manner as the Majority Lenders (excluding the Defaulting Lender) may
agree on. Any Lender making all or any portion of the Defaulting Lender’s
proportionate share of the applicable Loan or advance in accordance with the
foregoing terms and conditions shall be referred to as a “Special Advance
Lender”. 


                    (2)
In any case where a Lender becomes a Special Advance Lender (i) the Special
Advance Lender shall be deemed to have purchased, and the Defaulting Lender
shall be deemed to have sold, a senior participation in the Defaulting Lender’s
respective Loan to the 


106





extent of the
amount so advanced or disbursed (the “Advanced Amount”) bearing interest
at the Loan rates provided herein (including interest at the Default Rate, if
applicable) and (ii) the Defaulting Lender shall have no voting rights under
this Agreement or any other Loan Documents so long as it is a Defaulting
Lender. It is expressly understood and agreed that each of the respective
obligations under this Agreement and the other Loan Documents, including
advancing Loans, losses incurred in connection with the Loan, costs and
expenses of enforcement, advancing to preserve the Lien of the Mortgage or to
preserve and protect the Project, shall be without regard to any adjustment in
the proportionate shares occasioned by the acts of a Defaulting Lender. The
Special Advance Lender shall be entitled to an amount (the “Unpaid Amount”)
equal to the applicable Advanced Amount, plus any unpaid interest due
and owing with respect thereto, less any repayments thereof made by the
Defaulting Lender immediately upon demand. The Defaulting Lender shall have the
right to repurchase the senior participation in its Loan from the Special
Advance Lender at any time by the payment of the Unpaid Amount. 


                    (3)
A Special Advance Lender shall (i) give notice to the Defaulting Lender,
Administrative Agent and each of the other Lenders (provided that failure to deliver
said notice to any party other than the Defaulting Lender shall not constitute
a default under this Agreement) of the Advance Amount and the percentage of the
Special Advance Lender’s senior participation in the Defaulting Lender’s Loan
and (ii) in the event of the repayment of any of the Unpaid Amount by the
Defaulting Lender, give notice to the Defaulting Lender and Administrative
Agent of the fact that the Unpaid Amount has been repaid (in whole or in part),
the amount of such repayment and, if applicable, the revised percentage of the
Special Advance Lender’s senior participation. Provided that Administrative
Agent has received notice of such participation, Administrative Agent shall
have the same obligations to distribute interest, principal and other sums
received by Administrative Agent with respect to a Special Advance Lender’s
senior participation as Administrative Agent has with respect to the
distribution of interest, principal and other sums under this Agreement; and at
the time of making any distributions to the Lenders, shall make payments to the
Special Advance Lender with respect to a Special Advance Lender’s senior
participation in the Defaulting Lender’s Loan out of the Defaulting Lender’s
share of any such distributions before paying any amounts to the Defaulting
Lender. 


                    (4)
A Defaulting Lender shall immediately pay to a Special Advance Lender all sums
of any kind paid to or received by the Defaulting Lender from Borrower, whether
pursuant to the terms of this Agreement or the other Loan Documents or in
connection with the realization of the security therefor until the Unpaid
Amount is fully repaid. Notwithstanding the fact that the Defaulting Lender may
temporarily hold such sums, the Defaulting Lender shall be deemed to hold same
as a trustee for the benefit of the Special Advance Lender, it being the
express intention of the Lenders that the Special Advance Lender shall have an
ownership interest in such sums to the extent of the Unpaid Amount. 


                    (5)
Each Defaulting Lender shall indemnify, defend and hold Administrative Agent
and each of the other Lenders harmless from and against any and all losses,
damages, liabilities or expenses (including reasonable attorneys’ fees and expenses
and interest at the Default Rate) which they may sustain or incur by reason of
the Defaulting Lender’s failure or refusal to abide by its obligations under
this Agreement or the other Loan Documents, except to the extent a Defaulting
Lender became a Defaulting Lender due to the gross negligence or willful 


107





misconduct of
Administrative Agent and/or any Lender. Administrative Agent shall, after
payment of any amounts due to any Special Advance Lender pursuant to the terms
of subsection (3) above, set-off against any payments due to such
Defaulting Lender for the claims of Administrative Agent and the other Lenders
pursuant to this indemnity. 


                    (6)
In the event any Lender becomes a Defaulting Lender and none of the other
Lenders elects to be a Special Advance Lender pursuant to subsection (1) above,
Borrower shall have the right, at any time prior to the Completion Date,
provided that no Potential Default or Event of Default exists, to cause another
financial institution, reasonably acceptable to (x) the Majority Lenders if
such institution is not an Eligible Assignee or (y) Administrative Agent if
such institution is an Eligible Assignee, to assume Defaulting Lender’s
obligations with respect to the Advance Amount on the then-existing terms and
conditions of the Loan Documents (such replacement institution, a “Replacement Lender”). Such assumption
shall be pursuant to a written instrument reasonably satisfactory to
administrative Agent. Upon such assumption, the Replacement Lender shall become
a “Lender” for all purposes hereunder, with a Commitment in an amount equal to
the Advance Amount, and the Defaulting Lender’s Commitment shall automatically
be reduced by the Advance Amount. In connection with the foregoing, Borrower
shall execute and deliver to the Replacement Lender and the Defaulting Lender
substitute notes substantially in the form of Exhibit C and stating:
“This Note is a substitute note as contemplated by Section 14.12 of the
Agreement; it replaces and is in lieu of that certain note made by Maker dated
[date of Note] to the order of [Defaulting Lender] in the principal sum of
[Defaulting Lender’s original Commitment].” Such substitute notes shall be in
amounts equal to, in the case of the Replacement Lender’s note, the Advance
Amount and, in the case of the Defaulting Lender’s note, its Commitment as
reduced aforesaid. Such substitute notes shall constitute “Notes” and the
obligations evidenced by such substitute notes shall be secured by the
Mortgage. In connection with Borrower’s execution of substitute notes as
aforesaid, Borrower shall deliver to Administrative Agent evidence,
satisfactory to Administrative Agent, of all requisite partnership/limited
liability company/corporate action to authorize Borrower’s execution and
delivery of the substitute notes and any related documents. Upon delivery of
the foregoing substitute notes, each Defaulting Lender shall return to Borrower
its note which was replaced, provided that the delivery of a substitute note to
the Defaulting Lender pursuant to this Section 14.12 shall operate to
void and replace the note previously held by the Defaulting Lender regardless
of whether Defaulting Lender returns the same as required hereby. Borrower,
Administrative Agent and Lenders shall execute such modifications to the Loan
Documents as shall, in the reasonable judgment of Administrative Agent, be
necessary or desirable in connection with the substitution of Lenders in
accordance with the foregoing provisions of this Section. Lenders shall
reasonably cooperate with Borrower’s attempts to obtain a Replacement Lender,
but they shall not be obligated to modify the Loan Documents in connection
therewith, other than modifications pursuant to the immediately preceding
sentence. 


          Section
14.13 Liability of Administrative Agent.
Administrative Agent shall not have any liabilities or responsibilities to
Borrower on account of the failure of any Lender (other than Administrative
Agent in its capacity as a Lender) to perform its obligations hereunder or to
any Lender on account of the failure of Borrower to perform its obligations
hereunder or under any other Loan Document. 


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


          Section
14.15 Information for Lenders. Administrative
Agent shall promptly provide each Lender with copies of all financial
statements delivered by Borrower or Guarantor to Administrative Agent pursuant
to the Loan Documents. Administrative Agent shall promptly deliver to each
Lender all material information regarding the Property, Borrower and any other
holder of any of the ownership interests of Borrower furnished to or obtained
by Administrative Agent with respect to the Loan. Administrative Agent shall
promptly provide each Lender with copies of all requests and notices received
from Borrower by Administrative Agent and all appraisals ordered by
Administrative Agent on behalf of the Lenders. 


          Section
14.16 Pfandbriefe. Notwithstanding anything to
the contrary in this Agreement, each Lender shall be permitted to assign or
otherwise transfer its interest in the Loan and the Loan Documents to a trustee, administrator or receiver (or
their respective nominees, collateral agents or security trustees) of a pool securing
covered mortgage bonds (Pfandbriefe) issued by a German Pfandbriefebank under
German Pfandbriefe legislation in connection with a Pfandbriefe Offering. 


          Section
14.17 Restrictions on Transfers by Borrower.
Notwithstanding any provision of this Agreement that may permit Transfers of
any nature without consent of Administrative Agent and the Lenders, any
Transfer of a direct or indirect ownership interest in Borrower, Borrower’s
direct or indirect members, Borrower’s manager or any Guarantor shall be
subject to the requirement that, after giving effect to such Transfer, such
person and each Lender shall be in compliance with all Transfer Restriction
Regulations. A “Transfer Restriction Regulation” shall mean any law or
regulation of any Governmental Authority, including the USA Patriot Act and
regulations issued pursuant thereto and “know your customer” laws, rules,
regulations and orders, or any interpretation, directive or request under any
such law or regulation by any court or Governmental Authority or monetary
authority charged with the interpretation or administration thereof, or any
internal Lender policy resulting therefrom, or any internal Lender policy
limiting the amount of loans which may be extended to any one customer of the
Lender. If any Lender determines that a proposed transfer that does not require
the Lender’s consent under this Agreement would cause the Lender to be in
violation of a Transfer Restriction Regulation (any such Lender being herein
called a “Restricted Lender”), such Lender shall notify Borrower. Borrower may
not cause or permit the Transfer unless Borrower shall first either (i) prepay
such Restricted Lender’s outstanding Loans or (ii) arrange for the transfer by
such Restricted Lender of all of its right, title and interest under this
Agreement and such Restricted Lender’s Note to an Eligible Assignee selected by
Borrower that is reasonably satisfactory to Agent, such Eligible Assignee
assumes all of the obligations of such Restricted Lender hereunder, and purchases
all of such Restricted Lender’s interests hereunder for consideration equal to
the aggregate outstanding principal amount of such Restricted Lender’s Loans,
together with interest thereon to the date of such purchase (to the extent not
paid by Borrower) and all other amounts accrued and payable hereunder to such
Restricted Lender as of the date of such transfer 


109





[Signature Pages Follow]


110









	
  

 	
  

 	
  

 
	
           EXECUTED
 as of the date first written above.

 	
  

 	
  

 
	
  

 	
  

 	
  

 
	
 LENDER:

 	
 EUROHYPO AG,
 NEW YORK BRANCH

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
 Name:

 
	
  

 	
  

 	
 Title:

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
 Name:

 
	
  

 	
  

 	
 Title:

 
	
  

 	
  

 	
  

 
	
  

 	
 Address for
 Notices to Eurohypo AG,

 New York Branch:

 
	
  

 	
  

 	
  

 
	
  

 	
 Eurohypo AG,
 New York Branch 

 1114 Avenue of the Americas 

 New York, New York 10036

 Attention: Legal Director 

 Telecopier No.: 866-267-7680

 
	
  

 	
  

 	
  

 
	
  

 	
 With copies
 to:

 
	
  

 	
  

 	
  

 
	
  

 	
 Eurohypo AG,
 New York Branch 

 1114 Avenue of the Americas 

 New York, New York 10036

 Attention: Head of Portfolio Operations 

 Telecopier No.: 866-267-7680

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 - and -

 
	
  

 	
  

 	
  

 
	
  

 	
 Riemer &
 Braunstein LLP 

 Times Square Tower, Suite 2506

 Seven Times Square 

 New York, New York 10036

 Attention: Steven J. Weinstein, Esq.

 Telecopier No.: (617) 692-3503

 


Signature Page to Consolidated, Amended and
Restated Term Loan Agreement









	
  

 	
  

 	
  

 
	
 LENDER:

 	
 DEUTSCHE
 GENOSSENSCHAFTS -

 HYPOTHEKENBANK AG

 
	
  

 	
  

 
	
  

 	
 By: 

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
 Name:

 
	
  

 	
  

 	
 Title:

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
 Name:

 
	
  

 	
  

 	
 Title:

 
	
  

 	
  

 
	
  

 	
 Applicable
 Lending Office

 
	
  

 	
  

 
	
  

 	
 Address for Notices:

 
	
  

 	
 Deutsche
 Genossenschafts-Hypothekenbank AG 

 Rosenstraße 2

 20095 Hamburg 

 Germany

 
	
  

 	
 Attention: Polina
 Melnikova

 
	
  

 	
 Telecopier: +49 (0) 40 33
 34 2916

 
	
  

 	
  

 
	
  

 	
 With copies
 to:

 
	
  

 	
  

 
	
  

 	
 Deutsche
 Genossenschafts-Hypothekenbank AG

 Rosenstraße 2

 20095 Hamburg 

 Germany

 
	
  

 	
 Attention: Johanna Jürgens

 
	
  

 	
 Telecopier: +49 (0) 40 33
 34 2916

 
	
  

 	
  

 
	
  

 	
 Trimont

 
	
  

 	
 Monarch Tower

 3424 Peachtree Road, N.E., Suite 2200

 Atlanta, GA 30326

 
	
  

 	
 Attention: Trica Burell

 
	
  

 	
 Telecopier: (404) 581-7841

 
	
  

 	
  

 
	
  

 	
 Trimont

 
	
  

 	
 Monarch Tower 

 3424 Peachtree Road, N.E., Suite 2200

 Atlanta, GA 30326

 
	
  

 	
 Attention: Laura Holton

 
	
  

 	
 Telecopier: (404) 582-8901

 
	
  

 	
  

 
	
  

 	
 DGHYP

 
	
  

 	
 609 Fifth Ave., 6th
 Floor 

 New York, New York 10017-1021

 
	
  

 	
 Attention: Jean Barden

 
	
  

 	
 Telecopier: (212) 796-4313

 


Signature Page to Consolidated, Amended and
Restated Term Loan Agreement









	
  

 	
  

 	
  

 
	
 LENDER:

 	
 AMALGAMATED
 BANK

 
	
  

 	
  

 
	
  

 	
 By: 

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
 Name:

 
	
  

 	
  

 	
 Title:

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
 Name:

 
	
  

 	
  

 	
 Title:

 
	
  

 	
  

 
	
  

 	
 Applicable
 Lending Office

 
	
  

 	
  

 
	
  

 	
 Address for
 Notices:

 
	
  

 	
 275 Seventh
 Avenue 

 New York, New York 10001

 
	
  

 	
 Attention:
 Cynthia Lash

 
	
  

 	
 Telephone
 No.: (212) 895-4415

 
	
  

 	
 Telecopier
 No.: (212) 895-4728

 


Signature Page to Consolidated, Amended and
Restated Term Loan Agreement









	
  

 	
  

 	
  

 
	
 LENDER:

 	
 TD BANK, as
 successor-in-interest to 

 Commerce Bank, N.A.

 
	
  

 	
  

 
	
  

 	
 By: 

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
 Name:

 
	
  

 	
  

 	
 Title:

 
	
  

 	
  

 
	
  

 	
 Applicable
 Lending Office

 
	
  

 	
  

 
	
  

 	
 Address for
 Notices:

 
	
  

 	
 317 Madison
 Avenue 

 New York, New York 10017

 
	
  

 	
 Attention:
 Matthew Schatz

 
	
  

 	
 Telephone
 No.: (212) 651-2717

 
	
  

 	
 Telecopier
 No.: (212) 299-5757

 
	
  

 	
  

 
	
  

 	
 With copies
 to:

 
	
  

 	
  

 
	
  

 	
 1701 Route
 70 East

 
	
  

 	
 Cherry Hill,
 New Jersey 08034

 
	
  

 	
  

 
	
  

 	
 -and-

 
	
  

 	
  

 
	
  

 	
 Anderson
 Kill & Olick, P.C.

 1251 Avenue of the Americas 

 New York, New York 10020

 
	
  

 	
 Attention:
 Arnold L. Bartfeld, Esq.

 
	
  

 	
 Telephone
 No.: (212) 278-1511

 
	
  

 	
 Telecopier
 No.: (212) 278-1733

 


Signature Page to Consolidated, Amended and
Restated Term Loan Agreement










	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 BORROWER: 

 	
 ACADIA-PA
 EAST FORDHAM ACQUISITIONS, LLC, 

 a Delaware limited liability company

 
	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
 Acadia-P/A
 Holding Company, LLC, a Delaware

 
	
  

 	
  

 	
 limited
 liability company, its sole member

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 By: 

 	
 Acadia
 Strategic Opportunity Fund II, LLC, a

 
	
  

 	
  

 	
  

 	
 Delaware
 limited liability company, its managing

 member

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 By: 

 	
 Acadia
 Realty Acquisition II, LLC, a

 
	
  

 	
  

 	
  

 	
  

 	
 Delaware
 limited liability company, its 

 managing member

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
 By: 

 	
 Acadia Realty
 Limited Partnership, a

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 Delaware
 limited partnership, its sole 

 member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 By: 

 	
 Acadia
 Realty Trust, a Maryland

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 real estate
 investment trust, its

 general partner

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 By: 

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	

 


 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 Name: 

 	
 Robert
 Masters

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 Title:

 	
 Senior Vice
 President-

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 General
 Counsel

 






	
  

 	
  

 
	
  

 	
 Address for
 Notices:

 
	
  

 	
  

 
	
  

 	
 c/o Acadia
 Realty Trust 

 1311 Mamaroneck Avenue, Suite 260

 White Plains, NY 10605

 Attention: Robert Masters 

 Telecopier No.: 914-428-3646

 



Signature Page to Consolidated, Amended and
Restated Term Loan Agreement













	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 BORROWER: 

 	
 FORDHAM
 PLACE OFFICE LLC, a Delaware limited
liability company

 
	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
 Acadia-P/A
 Holding Company, LLC, a Delaware

 
	
  

 	
  

 	
 limited
 liability company, its sole member

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 By: 

 	
 Acadia
 Strategic Opportunity Fund II, LLC, a

 
	
  

 	
  

 	
  

 	
 Delaware
 limited liability company, its managing member

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 By: 

 	
 Acadia
 Realty Acquisition II, LLC, a 

 Delaware limited liability company, its 

 managing member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
 By: 

 	
 Acadia
 Realty Limited Partnership, a 

 Delaware limited partnership, its sole
member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 By: 

 	
 Acadia
 Realty Trust, a Maryland 

 real estate investment trust, its 

 general partner

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 By: 

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	

 


 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 Name: 

 	
 Robert
 Masters, Esq.

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 Title:

 	
 Senior Vice
 President-

 General Counsel

 






	
  

 	
  

 
	
  

 	
 Address for
 Notices:

 
	
  

 	
  

 
	
  

 	
 c/o Acadia
 Realty Trust 

 1311 Mamaroneck Avenue, Suite 260

 White Plains, NY 10605

 Attention: Robert Masters 

 Telecopier No.: 914-428-3646

 



Signature Page to Consolidated, Amended and
Restated Term Loan Agreement









	
  

 	
  

 	
  

 	
  

 
	
 ADMINISTRATIVE
 AGENT:

 	
  

 	
  

 	
  

 
	
  

 	
 EUROHYPO AG, NEW YORK
 BRANCH, as

 	
  

 
	
  

 	
 Administrative Agent

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
  

 	
 Name:

 	
  

 
	
  

 	
  

 	
 Title:

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
  

 	
 Name:

 	
  

 
	
  

 	
  

 	
 Title:

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 Address for Notices to
 Eurohypo AG,

 	
  

 
	
  

 	
 New York Branch:

 	
  

 
	
  

 	
  

 	
  

 
	
  

 	
 Eurohypo AG, New York
 Branch

 	
  

 
	
  

 	
 1114 Avenue of the
 Americas

 	
  

 
	
  

 	
 New York, New York 10036

 	
  

 
	
  

 	
 Attention: Legal Director

 	
  

 
	
  

 	
 Telecopier No.:
 866-267-7680

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 With copies to:

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 Eurohypo AG, New York
 Branch

 	
  

 
	
  

 	
 1114 Avenue of the
 Americas

 	
  

 
	
  

 	
 New York, New York 10036

 	
  

 
	
  

 	
 Attention: Head of
 Portfolio Operations

 	
  

 
	
  

 	
 Telecopier No.:
 866-267-7680

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 - and -                
            

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 Riemer & Braunstein
 LLP

 	
  

 
	
  

 	
 Times Square Tower, Suite
 2506

 	
  

 
	
  

 	
 Seven Times Square

 	
  

 
	
  

 	
 New York, New York 10036

 	
  

 
	
  

 	
 Attention: Steven J.
 Weinstein, Esq.

 	
  

 
	
  

 	
 Telecopier No.: (617)
 692-3503

 	
  

 


Signature Page to Consolidated, Amended and
Restated Term Loan Agreement






EXHIBIT A 


LEGAL DESCRIPTION OF PROJECT


The condominium units (the
“Units” - each a “Unit”) in the building known as The 400 E. Fordham Road
Condominium and by the street number 2502 Webster Avenue, 2504 Webster Avenue
and 400 East Fordham Road and 250 Webster Avenue, Bronx, New York (the
“Building”), designated and described as the Retail Unit and the
Office/Community Unit in that certain declaration made pursuant to Article 9-B
of the Real Property Law of the State of New York (the “Condominium Act”) establishing
a plan for condominium ownership of the Building and the land (the “Land”) on
which the Building is situated (which Land is more particularly described
below), dated October 23, 2008, and recorded in the Office of the New York City
Register, Bronx County, on December 18, 2008, under CRFN 2008000481411, as
amended (the “Declaration”). The Units are also designated as the Tax Lots 1001
(as to the Retail Unit) and 1002 (as to the Office/Community Unit) in Block
3033 on the Tax Map of the City of New York of the County of the Bronx on the
Tax Map and on the Floor Plans of the Building, and filed with Real Property
Assessment Department on December 15, 2008 as Condominium Plan No. 116 and also
filed in the Office of the New York City Register, Bronx County, as Condominium
Map No. under CRFN 2008000481412; 


TOGETHER WITH an undivided
70.0% interest (as to the Retail Unit) and an undivided 30.0% interest (as to
the Office/Community Unit) in the Common Elements (as such term is defined in
the Declaration). 


The Land upon which the Building containing
the Units is located is described as follows: 


ALL that certain plot, piece
or parcel of land, situate, lying and being in the Borough of Bronx, City,
County and State of New York, bounded and described as follows: 


BEGINNING at a point formed
by the intersection of the easterly side of Webster Avenue (100 feet wide) with
the southerly side of East Fordham Road (a.k.a. Pelham Avenue, variable width)
and from said point of beginning running thence; the following three (3)
courses along said southerly side of East Fordham Road; 


	
  

 	
  

 	
  

 
	
  

 	
 1.

 	
 South 84 degrees 34
 minutes 46 seconds East, a distance of 43.27 feet to a point, thence;

 
	
  

 	
  

 	
  

 
	
  

 	
 2.

 	
 South 54 degrees 01
 minutes 22 seconds East, a distance of 29.77 feet to a point, thence;

 
	
  

 	
  

 	
  

 
	
  

 	
 3.

 	
 South 40 degrees 09
 minutes 32 seconds East, a distance of 85.32 feet to a point on the westerly
 side of Park Avenue (variable width). Thence;

 
	
  

 	
  

 	
  

 
	
  

 	
 4.

 	
 Along said westerly side
 of Park Avenue, South 00 degrees 10 minutes 48 seconds East, a distance of
 201.71 feet to a point, thence;

 
	
  

 	
  

 	
  

 
	
  

 	
 5.

 	
 Along the common dividing
 line between lot 12, lot 8 and lot 4 (lands now or formerly of Automotive
 Realty Corporation), block 3033, North 85 degrees 39 minutes 56 seconds West,
 a distance of 164.24 feet to a point on the aforementioned easterly side of
 Webster Avenue; thence

 
	
  

 	
  

 	
  

 
	
  

 	
 6.

 	
 Along said easterly side
 of Webster Avenue, North 08 degrees 26 minutes 11 seconds East, a distance of
 279.09 feet to the point or place of BEGINNING.

 


Ex. A





 EXHIBIT B 


INTENTIONALLY OMITTED


Ex. B





EXHIBIT C


[Form of Note]

PROMISSORY NOTE


	
  

 	
  

 
	
 $_______________

 	
 _________ __, 200_ 

 
	
  

 	
 [__________][__________] 

 



                    FOR
VALUE RECEIVED, ACADIA-PA EAST FORDHAM ACQUISITIONS, LLC, a Delaware limited
liability company and FORDHAM PLACE OFFICE LLC (individually and collectively,
jointly and severally, the “Borrower”),
hereby promises to pay to __________________ (the “Lender”), for account of its
respective Applicable Lending Offices provided for by the Agreement referred to
below, at the principal office of EUROHYPO AG, NEW YORK BRANCH, at 1114 Avenue
of the Americas, 2nd Floor, New York, New York 10036, the principal sum of
_______________ Dollars ($___________) (or such lesser amount as shall equal
the aggregate unpaid principal amount of the Loans made by the Lender to
Borrower under the Agreement), in lawful money of the United States of America
and in immediately available funds, on the dates and in the principal amounts
provided in the Agreement, and to pay interest on the unpaid principal amount
of each such Loan, at such office, in like money and funds, for the period
commencing on the date of such Loan until such Loan shall be paid in full, at
the rates per annum and on the dates provided in the Agreement. 


                    With
respect to the definition of “Borrower”, except where the context otherwise
provides, (i) any representations contained herein of Borrower shall be
applicable to each Borrower, (ii) any affirmative covenants contained herein
shall be deemed to be covenants of each Borrower and shall require performance
by all Borrowers, (iii) any negative covenants contained herein shall be deemed
to be covenants of each Borrower, and shall be breached if any Borrower fails
to comply therewith, (iv) the occurrence of any Event of Default with respect
to any Borrower shall be deemed to be an Event of Default hereunder, and (v)
any Indebtedness and/or obligations of Borrower shall be deemed to include any
Indebtedness and/or obligations of the Borrowers, or any Indebtedness and/or
obligations of any one of them. 


                    The
date, amount, Type, interest rate and duration of Interest Period (if
applicable) of each Loan made by the Lender to Borrower, and each payment made
on account of the principal thereof, shall be recorded by the Lender on its
books and, prior to any transfer of this Note, endorsed by the Lender on the
schedule attached hereto or any continuation thereof, provided that the failure
of the Lender to make any such recordation or endorsement shall not affect the
obligations of Borrower to make a payment when due of any amount owing under
the Agreement or hereunder in respect of the Loans made by the Lender. 


                    This
Note is one of the Notes referred to in the Loan Agreement dated as of
_________ __, 200_ (as modified, supplemented, extended and in effect from time
to time, the “Agreement”)
among Borrower, the lenders party thereto (including the Lender) and Eurohypo
AG New York Branch, as Administrative Agent, and evidences Loans made by the
Lender thereunder. Terms used but not defined in this Note have the respective
meanings assigned to them in the Agreement. 


Ex. C





                    The
Agreement provides for the acceleration of the maturity of this Note upon the occurrence
of certain events and for prepayments of Loans upon the terms and conditions
specified therein. 


                    Except
as permitted by Sections 12.9 and 12.24 of the Agreement, this Note may not be
assigned by the Lender to any other Person. 


                    This
Note shall be governed by, and construed in accordance with, the law of the
State of New York without regard to conflicts of laws principles other than
Section 5-1401 of the General Obligations Law of the State of New York. 


                    As
long as a Hedge Agreement with the Eurohypo Counterparty is in effect, the
interest payable under this Note shall be increased or decreased from time to
time in accordance with such Hedge Agreement. Therefore, this Note also
evidences such amounts as may become due and payable by Borrower under the
Hedge Agreement with the Eurohypo Counterparty, including, without limitation,
any amount payable upon or in connection with termination of such Hedge
Agreement, all of which sums shall be deemed to constitute “Additional
Interest” evidenced hereby and payable pursuant to this Note and in accordance
with the terms and provisions of the Hedge Agreement with a Eurohypo
Counterparty. 


[Remainder of Page Intentionally Left Blank]


Ex. C







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


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 ACADIA-PA
 EAST FORDHAM ACQUISITIONS, LLC, 

 a Delaware limited liability company

 
	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
 Acadia-P/A
 Holding Company, LLC, a Delaware

 
	
  

 	
  

 	
 limited
 liability company, its sole member

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 By: 

 	
 Acadia
 Strategic Opportunity Fund II, LLC, a

 
	
  

 	
  

 	
  

 	
 Delaware
 limited liability company, its managing

 member

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 By: 

 	
 Acadia
 Realty Acquisition II, LLC, a

 
	
  

 	
  

 	
  

 	
  

 	
 Delaware
 limited liability company, its 

 managing member

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
 By: 

 	
 Acadia Realty
 Limited Partnership, a

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 Delaware
 limited partnership, its sole 

 member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 By: 

 	
 Acadia
 Realty Trust, a Maryland

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 real estate
 investment trust, its

 general partner

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 By: 

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	

 


 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 Name: 

 	
 Robert
 Masters

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 Title:

 	
 Senior Vice
 President-

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 General
 Counsel

 



Ex. C









	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 FORDHAM
 PLACE OFFICE LLC, a Delaware limited liability company

 
	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
 Acadia-P/A
 Holding Company, LLC, a Delaware

 
	
  

 	
  

 	
 limited
 liability company, its sole member

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 By: 

 	
 Acadia
 Strategic Opportunity Fund II, LLC, a

 
	
  

 	
  

 	
  

 	
 Delaware
 limited liability company, its managing
member

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 By: 

 	
 Acadia
 Realty Acquisition II, LLC, a 

 Delaware limited liability company, its 

 managing member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
 By: 

 	
 Acadia
 Realty Limited Partnership, a 

 Delaware limited partnership, its sole
member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 By: 

 	
 Acadia
 Realty Trust, a Maryland 

 real estate investment trust, its 

 general partner

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 By: 

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	

 


 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 Name: 

 	
 Robert
 Masters

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 Title:

 	
 Senior Vice
 President-

 General Counsel

 



Ex. C







SCHEDULE OF LOANS


This Note
evidences Loans made, Continued or Converted under the within-described
Agreement to Borrower, on the dates, in the principal amounts, of the Types,
bearing interest at the rates and having Interest Periods (if applicable) of the
durations set forth below, subject to the payments, Continuations, Conversions
and prepayments of principal set forth below: 


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Date

 Made,

 Continued

 or

 Converted

 	
  

 	
 Principal

 Amount

 of

 Loan

 	
  

 	
 Type

 of

 Loan

 	
  

 	
 Interest

 Rate

 	
  

 	
 Duration

 of

 Interest

 Period

 	
  

 	
 Amount

 Paid,

 Prepaid,

 Continued

 or

 Converted

 	
  

 	
 Unpaid

 Principal

 Amount

 	
  

 	
 Notation

 Made by

 


Ex. C





EXHIBIT D 


[Form of Assignment and Acceptance] 

ASSIGNMENT AND ACCEPTANCE


                    Reference
is made to (a) the Loan Agreement dated as of _________ __, 200_ (as amended
and in effect on the date hereof, the “Agreement”),
among ACADIA-PA EAST FORDHAM ACQUISITIONS, LLC, a Delaware limited liability
company and FORDHAM PLACE OFFICE LLC (individually and collectively, jointly
and severally, the “Borrower”),
the Lenders named therein and [___________],
as Administrative Agent for the Lenders among Administrative Agent and each
Lender. Terms defined in the Agreement are used herein with the same meanings.  


                    The
Assignor named below hereby sells and assigns, without recourse, to the
Assignee named below, and the Assignee hereby purchases and assumes, without
recourse, from the Assignor, effective as of the Assignment Date set forth
below, the interests set forth below (the “Assigned
Interest”) in the Assignor’s rights and obligations under the
Agreement, including, without limitation, the interests set forth below in the
Commitment of the Assignor on the Assignment Date and Loans owing to the
Assignor which are outstanding on the Assignment Date, together with (a)
interest on the assigned Loans from and after the Assignment Date and (b) the amount, if any, set forth below of
the fees accrued to the Assignment Date for account of the Assignor. The
Assignee hereby acknowledges receipt of a copy of the Agreement. From and after
the Assignment Date (i) the Assignee shall be a party to and be bound by the
provisions of the Agreement and, to the extent of the interests assigned by
this Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and (ii) the Assignor shall, to the extent of the interests assigned
by this Assignment and Acceptance, relinquish its rights and be released from
its obligations under the Agreement.  


                    This
Assignment and Acceptance is being delivered to Administrative Agent together
with, if the Assignee is not already a Lender under the Agreement, an
administrative questionnaire in the form supplied by Administrative Agent, duly
completed by the Assignee. The [Assignee/Assignor] shall pay the fee payable to
Administrative Agent pursuant to Section 12.24(2)(e) of the Agreement. 


                    This
Assignment and Acceptance shall be governed by and construed in accordance with
the laws of the State of _______. 


                    The
Assignor represents and warrants to the Assignee that the Assignor is the legal
and beneficial owner of the Assigned Interest and has not created any adverse
interest therein. The Assignor and the Assignee represent and warrant to each
other that they are, respectively, authorized to execute and deliver this
Assignment and Acceptance. 


D-1









	
  

 
	
 Date of
 Assignment: 

 
	
  

 
	
 Legal Name
 of Assignor: 

 
	
  

 
	
 Legal Name
 of Assignee: 

 
	
  

 
	
 Assignee’s
 Address for Notices: 

 
	
  

 
	
 Effective
 Date of Assignment 

 
	
  

 
	
 (“Assignment
 Date”)1: 

 






	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Percentage
 Assigned of 

 
	
  

 	
  

 	
 Facility/Commitment
 

 
	
  

 	
  

 	
 (set forth,
 to at 

 
	
  

 	
  

 	
 least 4
 decimals, as a 

 
	
  

 	
  

 	
 percentage
 of the 

 
	
  

 	
  

 	
 Facility and
 the 

 
	
  

 	
  

 	
 aggregate
 Commitments 

 
	
  

 	
 Principal
 Amount

 	
 of all
 Lenders

 
	
  

 	
 Assigned

 	
 thereunder

 
	
  

 	
  

 	
  

 
	
 Current
 Outstanding
Loans Assigned:

 	
 $

 	
                 %] 2 

 
	
 Future
 Funding
Commitment:

 	
 $ 

 	
                 %

 
	
  [Fees Assigned (if any):] 

 	
  

 	
  

 



The terms set
forth above and below are hereby agreed to: 


	
  

 	
  

 	
  

 
	
  

 	
 [NAME OF
 ASSIGNOR]      , as Assignor 

 
	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
        Name:
 

 
	
  

 	
        Title:
 

 
	
  

 	
 [NAME OF
 ASSIGNEE]      , as Assignee 

 
	
  

 	
 By: 

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
        Name:
 

 
	
  

 	
        Title:
 

 






	
  

 	
  

 
	

 


 
	
  

 	
  

 
	
 1

 	
 Must be at least five
 Business Days after execution hereof by all required parties. 

 
	
  

 	
  

 
	
 2

 	
 Delete if no future
 advances are involved. 

 


D-2







The
undersigned hereby consent to the within assignment:3


	
  

 	
  

 	
  

 	
  

 
	
 [

 	
  

 	
 ],

 	
  

 
	
  

 	
 as
 Administrative Agent

 	
  

 
	
  

 	
  

 	
  

 
	
 By:

 	
  

 	
  

 
	
  

 	

 


 	
  

 
	
  

 	
 Name:

 	
  

 
	
  

 	
 Title:

 	
  

 






	
  

 	
  

 
	

 


 
	
 3

 	
 Consent to be included to
 the extent required by Section 11.24(2) of the Agreement. 

 


D-3





EXHIBIT E 


FORM OF HEDGE AGREEMENT PLEDGE


(See attached)


Ex. E-1





EXHIBIT F 


FORM OF NOTICE OF CONVERSION/CONTINUATION


_______________, 200_


Eurohypo AG,
New York Branch, as Administrative Agent

1114 Avenue of the Americas

New York, New York 10036

Attn: ________________________________ 


Re: Loan
Agreement dated as of _______________, 200_ (as the same may be amended,
modified or supplemented from time to time, the “Agreement”) by and among [BORROWER] (the “Borrower”), the lenders from time to
time party to the Agreement (the “Lenders”),
and EUROHYPO AG, NEW YORK BRANCH, as Administrative Agent on behalf of the
Lenders (the “Administrative Agent”)


Ladies and Gentlemen: 


          Reference
is made to the Agreement. Capitalized terms used in this Notice of
Conversion/Continuation without definition have the meanings specified in the
Agreement. 


Pursuant to
Section 2.8(5) of the Agreement, Borrower hereby elects to convert or continue
the loans described in attached Schedule 1 (the “Loans”). In connection therewith,
Borrower and the undersigned authorized officer of Borrower hereby certify
that: 


          (1)
Representations and Warranties. All representations and warranties of
Borrower contained in the Loan Documents, including those contained in ARTICLE
7 of the Agreement, are true and correct as of the date hereof and shall be
true and correct on the date of the continuation/conversion of the Loans, both
before and after giving effect to such continuation/conversion; and 


          (2)
No Event of Default. No Event of Default exists as of the date hereof or
will result from the continuation/conversion of the Loans. 


	
  

 	
  

 	
  

 	
  

 
	
  

 	
 [BORROWER],

 
	
  

 	
 a

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 






	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
  

 	
 Name:

 
	
  

 	
  

 	
 Title:

 











Schedule 1 

to Notice of Conversion/Continuation 


LOAN TO BE CONVERTED OR CONTINUED


A. All
conversions and continuations must be of a Loan, or portion thereof, in a
principal amount in excess of $1,000,000. 


B.
Conversions/continuations to a LIBOR-based Loan under paragraphs (2) and (3)
below are not permitted if, after giving effect to thereto, (a) there would be
more than one (1) LIBOR-based Loans in effect, or (b) the aggregate outstanding
principal amount of all LIBOR-based Loans would be reduced to be less than
$1,000,000. 


	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (1)

 	
 Conversion
 of a LIBOR-based Loan into a Base Rate Loan. 

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 The
 following LIBOR-based Loan to a Base Rate Loan: 

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Amount:

 	
 $

 
	
  

 	
  

 	
 Requested
 Conversion Date: 

 	
  

 
	
  

 	
  

 	
 (must be a
 Business Day at least three (3) 

 	
  

 
	
  

 	
  

 	
 Business
 Days after date of notice) 

 	
  

 
	
  

 	
  

 	
 Last day of
 current Interest Period:

 	
  

 
	
  

 	
  

 	
  

 
	
  

 	
 (2)

 	
 Conversion
 of a Base Rate Loan into a LIBOR-based Loan. 

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 The
 following Base Rate Loan to a LIBOR-based Loan: 

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Amount:

 	
 $

 
	
  

 	
  

 	
 Requested
 Conversion Date: 

 	
  

 
	
  

 	
  

 	
 (must be a
 Business Day at least three (3)

 	
  

 
	
  

 	
  

 	
 Business
 Days after date of notice)

 	
  

 
	
  

 	
  

 	
  

 
	
  

 	
 (3)

 	
 Continuation
 of a LIBOR-based Loan into a Subsequent Interest Period.
 

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 The
 following LIBOR-based Loan into a subsequent Interest Period: 

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Amount:

 	
 $

 
	
  

 	
  

 	
 Last day of
 current Interest Period:

 	
  

 
	
  

 	
  

 	
 (must be a
 Business Day at least three (3) 

 	
  

 
	
  

 	
  

 	
 Business
 Days after date of notice) 

 	
  

 









SCHEDULE 1 


COMMITMENTS


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 LENDER

 	
  

 	
 COMMITMENT

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 1.

 	
  

 	
 Eurohypo AG
 New York Branch

 	
  

 	
 $

 	
 34,099,000.00

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 2.

 	
  

 	
 Deutsche
 Genossenschafts-Hypothekenbank AG

 	
  

 	
 $

 	
 20,313,200.00

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 3.

 	
  

 	
 Amalgamated
 Bank

 	
  

 	
 $

 	
 18,051,400.00

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 4.

 	
  

 	
 TD Bank,
 N.A.

 	
  

 	
 $

 	
 13,536,400.00

 	
  

 
	
  

 	
  

 	
  

 	
  

 	

 


 	

 


 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Total
 Commitment:

 	
  

 	
 $

 	
 86,000,000.00

 	
  

 









SCHEDULE 1.1(97) 


LEASING GUIDELINES


(See attached)





SCHEDULE 1.1(146) 


PROPORTIONATE SHARES


	
  

 	
  

 	
  

 
	
 Lender

 	
  

 	
 Percentage

 
	

 


 	
  

 	

 


 
	
 Eurohypo AG,
 New York Branch

 	
  

 	
 39.65%

 
	
  

 	
  

 	
  

 
	
 Deutsche
 Genossenschafts-Hypothekenbank AG

 	
  

 	
 23.62%

 
	
  

 	
  

 	
  

 
	
 Amalgamated
 Bank

 	
  

 	
 20.99%

 
	
  

 	
  

 	
  

 
	
 TD Bank,
 N.A.

 	
  

 	
 15.74%

 
	

 


 	
  

 	

 


 
	
 Total

 	
  

 	
    100%

 











SCHEDULE 2.1


PRECONDITIONS TO EFFECTIVENESS OF AGREEMENT


          PART
A. CONDITIONS TO EFFECTIVENESS OF AGREEMENT. 


          The
preconditions to effectiveness of Agreement shall be Administrative Agent’s and
each Lender’s receipt, review, approval and/or confirmation of the following,
at Borrower’s cost and expense, each in form and content satisfactory to
Administrative Agent and each Lender in their sole and absolute discretion: 


          1.
The Loan Documents, executed by Borrower and, as applicable, each Borrower
Party. 


          2.
Payment to Administrative Agent (on behalf of the Lenders) of the commitment
fee as set forth in the Fee Letter. 


          3.
An ALTA (or equivalent) mortgagee policy of title insurance in the maximum
amount of the Loans, with reinsurance and endorsements as Administrative Agent
may require, containing no exceptions to title (printed or otherwise) which are
unacceptable to Administrative Agent, and insuring that the Mortgage is a
first-priority Lien on the Project and related collateral. Without limitation,
such policy shall (a) be on the 2006 ALTA (revised 6-17-06) form or, if not
available, ALTA 1992 form (deleting arbitration and creditors’ rights, if
permissible) or, if not available, the form commonly used in the state where
the property is located, insuring Administrative Agent (on behalf of the
Lenders) or any and its successors and assigns; and (b) include the following
endorsements and/or affirmative coverages to the extent available or
applicable: (1) Comprehensive endorsement, (2) Survey, (3) Zoning (with
additional coverage for number and type of parking spaces), (4) Usury, (5)
Doing Business, (6) Access, (7) Separate Tax Lot, (8) Environmental Protection
Lien, (9) Subdivision, (10) Contiguity, (11) Tax Deed, and (12) Mortgage
Recording Tax, and such endorsements and/or affirmative coverages as
Administrative Agent may require in its sole and absolute discretion. 


          4.
All documents evidencing the formation, organization, valid existence, good
standing, and due authorization of and for Borrower and each Borrower Party for
the execution, delivery, and performance of the Loan Documents by Borrower and
each Borrower Party, including an organizational chart for Borrower and
Borrower Parties. 


          5.
Legal opinions issued by counsel for Borrower and each Borrower Party, opining
as to the due organization, valid existence and good standing of Borrower and
each Borrower Party, and the due authorization, execution, delivery,
enforceability and validity of the Loan Documents with respect to, Borrower and
each Borrower Party; that the Loans, as reflected in the Loan Documents, are
not usurious; to the extent that Administrative Agent is not otherwise
satisfied, that the Project and its use is in full compliance with all legal
requirements; and as to such other matters as Administrative Agent and
Administrative Agent’s counsel reasonably may specify. 


Schedule 2.1 - 1





          6.
Current Uniform Commercial Code searches, and litigation, bankruptcy, judgment
and federal tax lien reports as requested by Administrative Agent, with respect
to Borrower, Borrower’s members, and Guarantor. 


          7.
Evidence of insurance as required by this Agreement, and conforming in all
respects to the requirements of Administrative Agent. 


          8.
A current “as-built” survey of the Project, dated to the reasonable
satisfaction of the Administrative Agent, certified to Administrative Agent (on
behalf of the Lenders) and the issuer of the title insurance, prepared by a
licensed surveyor acceptable to Administrative Agent and the issuer of the
title insurance, and conforming to Administrative Agent’s current standard
survey requirements, which may include certification to additional
participants, co-lenders and/or investors. Without limitation, the minimum
requirements for the survey shall be as set forth in the 2005 Minimum Standard
Detail Requirements for ALTA/ACSM Land Title Surveys, “Urban Survey”
classification, with the following additional items from Table A, “Optional Survey
Responsibilities and Specifications”: “2” (vicinity map showing nearby highway
or major intersection), “3” (flood zone designation), “4” (land area), “6”
(setbacks, height and bulk restrictions), “8” (other visible improvements), “9”
(parking areas), “10” (access to public way, driveway and curb cuts), “11(a)”
(utilities). 


          9.
A current engineering report or architect’s certificate with respect to the
Project, covering, among other matters, inspection of heating and cooling
systems, roof and structural details, showing no failure of compliance with
building plans and specifications, applicable legal requirements (including
requirements of the Americans with Disabilities Act) and fire, safety and
health standards and reviewing and approving, among other matters, soil tests,
plans and specifications (including heating, ventilation and cooling systems,
roof and structural details, mechanical and electrical systems), and compliance
with local, state or federal laws, regulations, codes, etc., and containing a
declaration satisfactory to Administrative Agent that there will be no asbestos
in the Project. The engineer/architect preparing such report or certificate
must be satisfied that the Project is in compliance with fire, safety and
health standards which such engineer/architect deems reasonable, in addition to
standards imposed by law, regulation or codes. As requested by Administrative
Agent, such report shall also include an assessment of the Project’s tolerance
for earthquake and seismic activity. 


          10.
A current Site Assessment. 


          11.
All appraisals, environmental reports, building condition reports and Site
Assessments delivered to Administrative Agent prior to the execution of this
Agreement shall be certified to Administrative Agent (on behalf of the Lenders
and their successors and assigns) without modification or change thereto in the
form reasonably requested by Administrative Agent which may include
certification to additional participants, co-lenders and/or investors. 


          12.
A current rent roll of the Project, certified by Borrower or the current owner
of the Project. Such rent roll shall include the following information: (a)
tenant names; (b) unit/suite numbers; (c) area of each demised Project and
total area of the Project (stated in net rentable square feet); (d) rental rate
(including escalations) (stated in gross amount and in amount per net rentable
square foot per year); (e) lease term (commencement, expiration and renewal
options); 


Schedule 2.1 - 2





and (f)
expense pass-throughs. In addition, Borrower shall provide Administrative Agent
with a copy of the standard lease form to be used by Borrower in leasing space
in the Project, and, at Administrative Agent’s request, true and correct copies
of all leases of the Project. 


          13.
A copy of the Property Management Agreement for the Project, certified by
Borrower as being true, correct and complete. 


          14.
Borrower’s deposit into the applicable Reserve Account of the amount required
by Administrative Agent to impound for taxes and assessments under Article 4
and to fund any other required escrows or reserves. 


          15.
Evidence that (a) the Project and the operation thereof comply with all legal
requirements, including that all requisite certificates of occupancy, building
permits, and other licenses, certificates, approvals or consents required by
any Governmental Authority have been issued without variance or condition, (b)
following any casualty, the improvements which form a part of the Project may
be reconstructed and the current use thereof restored, and (c) that there is no
litigation, action, citation, injunctive proceedings, or like matter pending or
threatened with respect to the validity of such matters. At Administrative
Agent’s request, Borrower shall furnish Administrative Agent with a zoning
endorsement to Administrative Agent’s title insurance policy, zoning letters
from applicable municipal agencies, and utility letters from applicable service
providers. 


          16.
No change shall have occurred in the financial condition of Borrower or any
Borrower Party or in the Net Operating Income of the Project, or in the
financial condition of any major or anchor tenant, which would have, in
Administrative Agent’s or any Lender’s judgment, a Material Adverse Effect on
the Project or on Borrower’s or any Borrower Party’s ability to repay the Loans
or otherwise perform its obligations under the Loan Documents. Further, there
shall not exist any material default by Borrower or any principal in Borrower
(or any entity owned or controlled by any of them) under any loan, financing or
similar arrangement with any lender. 


          17.
No condemnation or adverse zoning or usage change proceeding shall have
occurred or shall have been threatened against the Project; the Project shall
not have suffered any significant damage by fire or other casualty which has
not been repaired; no structural change to the Project shall have occurred or
to any of the Improvements thereon; no law, regulation, ordinance, moratorium,
injunctive proceeding, restriction, litigation, action, citation or similar
proceeding or matter shall have been enacted, adopted, or threatened by any
third party or Governmental Authority, which would have, in Administrative
Agent’s or any Lender’s judgment, a Material Adverse Effect on Borrower, any
Borrower Party or the Project. 


          18.
All fees and commissions payable to real estate brokers, mortgage brokers, or
any other brokers or agents in connection with the Loans or the acquisition of
the Project have been paid, such evidence to be accompanied by any waivers or
indemnifications deemed necessary by Administrative Agent. 


          19.
Intentionally Omitted. 


Schedule 2.1 - 3





          20.
Payment of Administrative Agent’s costs and expenses in underwriting,
documenting, and closing the transaction, including fees and expenses of
Administrative Agent’s inspecting engineers, consultants, and outside counsel. 


          21.
The Collateral Letter of Credit, if any, and the TI/LC Letter of Credit
required under Article 4. 


          22.
Estoppel certificates and subordination, non-disturbance and attornment
agreements from tenants, as requested by Administrative Agent. 


          23.
Service contracts, warranties, licenses and permits, applicable to the
operation or use of the Project. 


          24.
An Appraisal of the Project, which, among other things, verifies that the value
of the Project is not less than $123,900,000.00. 


          25.
Prepayment of the Loans under the Original Loan Agreement such that the
outstanding principal balance of the Loan as of of the Closing Date will be
$86,000,000.00. 


          26.
Such other documents or items as Administrative Agent or its counsel reasonably
may require. 


          27.
The representations and warranties contained in this Loan Agreement and in all
other Loan Documents are true and correct. 


          28.
The title policy, survey, insurance policies, appraisal, environmental report,
engineering report and other third party reports shall run in favor of Eurohypo
AG, New York Branch or its designee, as Administrative Agent on behalf of the
lenders in its lending syndicate from time to time, and the successors and
assigns of each of the foregoing, all of whom may rely thereon. 


          29.
No Potential Default or Event of Default shall have occurred or exist. 


Schedule 2.1 - 4





SCHEDULE 2.4(1) 


WIRE INSTRUCTIONS


Commerzbank AG, New York


Fed ABA No.: 026-008-044


For Account of: Eurohypo AG, New York


A/C No.: 150-9409269-00USD


Ref: 400 E. Fordham Road


Schedule 2.4(1) - 1





SCHEDULE
2.4(2) 


AMORTIZATION SCHEDULE


Schedule 2.4(2) - 1





SCHEDULE 7.28 


ORGANIZATIONAL CHART


Schedule 7.28 - 1







EXHIBIT B


MORTGAGE,ASSIGNMENT OF LEASES AND RENTS,

SECURITY AGREEMENT AND FIXTURE FILING


made by


ACADIA-PA EAST FORDHAM ACQUISITIONS, LLC,

a Delaware limited liability company

and


FORDHAM PLACE OFFICE, LLC

a Delaware limited liability company,

(jointly and severally, individually and collectively, the “Mortgagor”)


in favor of


EUROHYPO AG, NEW YORK BRANCH, AS ADMINISTRATIVE AGENT
(together with its successors in such capacity, “Mortgagee”)


	
  

 	
  

 	
  

 
	
  

 	
 Dated: As of November ___, 2009

 	
  

 
	
  

 	
  

 	
  

 
	
  

 	

 


 	
  

 






	
  

 	
  

 	
  

 
	
  

 	
 Section:

 	
 11

 
	
  

 	
 Block:

 	
 3033

 
	
  

 	
 Lots:

 	
 9 and 12 now
 known as Lots 1001 and 1002 

 


2502 Webster Avenue, 2504 Webster Avenue, and
400-414 East Fordham Road, a/k/a 4747-

4763 Park Avenue, a/k/a 2506-2526 Webster Avenue, Bronx, New York

City of New York, Bronx County, State of New York


	
  

 	
  

 	
  

 
	
  

 	

 


 	
  

 
	
  

 	
  

 	
  

 
	
  

 	
 Mortgage Amount: $86,000,000.00

 	
  

 
	
  

 	
  

 	
  

 
	
  

 	

 


 	
  

 
	
  

 	
  

 	
  

 
	
  

 	
 RECORD
 AND RETURN TO:

 	
  

 
	
  

 	
 RIEMER & BRAUNSTEIN LLP

 	
  

 
	
  

 	
 7 Times Square, Suite 2506

 	
  

 
	
  

 	
 New York, New York 10036

 	
  

 
	
  

 	
 ATTENTION:
 Steven J. Weinstein, Esq.

 	
  

 
	
  

 	
  

 	
  

 
	
  

 	

 


 	
  

 



THIS MORTGAGE
DOES NOT COVER REAL PROPERTY PRINCIPALLY IMPROVED OR TO BE IMPROVED BY ONE OR
MORE STRUCTURES CONTAINING IN THE AGGREGATE NOT MORE THAN SIX RESIDENTIAL
DWELLING UNITS, EACH DWELLING UNIT HAVING ITS OWN SEPARATE COOKING FACILITIES.





TABLE OF CONTENTS


	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
 Page No.

 
	
  

 	
  

 	
  

 	
  

 	

 


 
	
 ARTICLE 1
 OBLIGATIONS

 	
  

 	
 5

 
	
  

 	
  

 	
  

 
	
 Section 1.01

 	
  

 	
 Obligations

 	
  

 	
 5

 
	
 Section 1.02

 	
  

 	
 Maximum
 Secured Indebtedness

 	
  

 	
 5

 
	
  

 	
  

 	
  

 
	
 ARTICLE 2
 PARTICULAR COVENANTS AND AGREEMENTS OF MORTGAGOR

 	
  

 	
 6

 
	
  

 	
  

 	
  

 
	
 Section 2.01

 	
  

 	
 Payment of
 Secured Obligations

 	
  

 	
 6

 
	
 Section 2.02

 	
  

 	
 Title, etc

 	
  

 	
 6

 
	
 Section 2.03

 	
  

 	
 Further
 Assurances; Filing; Re-Filing; etc

 	
  

 	
 7

 
	
 Section 2.04

 	
  

 	
 Liens;
 Transfers

 	
  

 	
 7

 
	
 Section 2.05

 	
  

 	
 Insurance

 	
  

 	
 7

 
	
 Section 2.06

 	
  

 	
 Impositions

 	
  

 	
 7

 
	
 Section 2.07

 	
  

 	
 Maintenance
 of the Improvements and Equipment

 	
  

 	
 8

 
	
 Section 2.08

 	
  

 	
 Compliance
 With Laws

 	
  

 	
 8

 
	
 Section 2.09

 	
  

 	
 Limitations
 of Use

 	
  

 	
 8

 
	
 Section 2.10

 	
  

 	
 Actions to
 Protect Mortgaged Property

 	
  

 	
 8

 
	
 Section 2.11

 	
  

 	
 Insurance
 and Condemnation Proceeds

 	
  

 	
 9

 
	
 Section 2.12

 	
  

 	
 Inspections

 	
  

 	
 9

 
	
  

 	
  

 	
  

 
	
 ARTICLE 3
 ASSIGNMENT OF LEASES AND RENTS

 	
  

 	
 9

 
	
  

 	
  

 	
  

 
	
 Section 3.01

 	
  

 	
 Assignment
 of Rents, Issues and Profits

 	
  

 	
 9

 
	
 Section 3.02

 	
  

 	
 Grant of
 License; Revocation

 	
  

 	
 11

 
	
 Section 3.03

 	
  

 	
 Direction to
 Tenants

 	
  

 	
 12

 
	
 Section 3.04

 	
  

 	
 Section
 291-f Agreement

 	
  

 	
 12

 
	
  

 	
  

 	
  

 
	
 ARTICLE 4
 SECURITY AGREEMENT; FIXTURE FILING

 	
  

 	
 12

 
	
  

 	
  

 	
  

 
	
 Section 4.01

 	
  

 	
 Creation of
 Security Interest

 	
  

 	
 12

 
	
 Section 4.02

 	
  

 	
 Continuation
 Statements; Amendments

 	
  

 	
 13

 
	
 Section 4.03

 	
  

 	
 Fixture
 Filing

 	
  

 	
 13

 
	
  

 	
  

 	
  

 
	
 ARTICLE 5
 DEFAULTS; REMEDIES

 	
  

 	
 14

 
	
  

 	
  

 	
  

 
	
 Section 5.01

 	
  

 	
 Events of
 Default

 	
  

 	
 14

 
	
 Section 5.02

 	
  

 	
 Remedies

 	
  

 	
 14

 
	
 Section 5.03

 	
  

 	
 Application
 of Proceeds

 	
  

 	
 16

 
	
 Section 5.04

 	
  

 	
 Right to Sue

 	
  

 	
 16

 
	
 Section 5.05

 	
  

 	
 Powers of
 Mortgagee

 	
  

 	
 16

 
	
 Section 5.06

 	
  

 	
 Remedies
 Cumulative

 	
  

 	
 17

 
	
 Section 5.07

 	
  

 	
 General
 Provisions

 	
  

 	
 17

 
	
 Section 5.08

 	
  

 	
 No
 Mortgagee-in-Possession

 	
  

 	
 19

 
	
  

 	
  

 	
  

 
	
 ARTICLE 6
 MISCELLANEOUS

 	
  

 	
 20

 
	
  

 	
  

 	
  

 
	
 Section 6.01

 	
  

 	
 Release by
 Mortgagee

 	
  

 	
 20

 
	
 Section 6.02

 	
  

 	
 Notices

 	
  

 	
 20

 
	
 Section 6.03

 	
  

 	
 No Waiver

 	
  

 	
 20

 
	
 Section 6.04

 	
  

 	
 Amendments;
 etc

 	
  

 	
 20

 













	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Section 6.05

 	
  

 	
 Successors
 and Assigns

 	
  

 	
 20

 
	
 Section 6.06

 	
  

 	
 Captions

 	
  

 	
 21

 
	
 Section 6.07

 	
  

 	
 Severability

 	
  

 	
 21

 
	
 Section 6.08

 	
  

 	
 Usury
 Savings Clause

 	
  

 	
 21

 
	
 Section 6.09

 	
  

 	
 CERTAIN WAIVERS

 	
  

 	
 22

 
	
 Section 6.10

 	
  

 	
 GOVERNING LAW

 	
  

 	
 22

 
	
 Section 6.11

 	
  

 	
 SUBMISSION TO JURISDICTION

 	
  

 	
 22

 
	
 Section 6.12

 	
  

 	
 WAIVER OF JURY TRIAL

 	
  

 	
 22

 
	
 Section 6.13

 	
  

 	
 Attorney-In-Fact

 	
  

 	
 22

 
	
 Section 6.14

 	
  

 	
 New York
 Lien Law

 	
  

 	
 23

 






	
  

 	
  

 
	
 Exhibit A

 	
 -  Description
 of Land

 
	
 Exhibit B 

 	
 -  Personal
 Property Collateral

 


(ii)







MORTGAGE, ASSIGNMENT OF LEASES AND

RENTS, SECURITY AGREEMENT AND FIXTURE FILING


                    THIS
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING
(this “Mortgage”) is made as of the ___ day of November, 2009 by ACADIA-PA EAST FORDHAM ACQUISITIONS, LLC (“Acquisitions”) and FORDHAM PLACE OFFICE LLC (“Office”; together with
Acquisitions, individually and collectively, jointly and severally, “Mortgagor”),
each a limited liability company duly organized and validly existing under the
laws of the State of Delaware and having an office at c/o Acadia Realty Trust,
1311 Mamaroneck Avenue, Suite 260, White Plains, NY 10605, in favor of EUROHYPO
AG, NEW YORK BRANCH, having an office at 1114 Avenue of the Americas, New York,
New York 10036, as Administrative Agent for the lenders referred to below (in
such capacity, together with its successors in such capacity, “Mortgagee”).


W I T N E S S E T H:


                    WHEREAS,
Acquisitions and the Office are the fee owners of that certain
tract of land located in the County of Bronx, State of New York and being more
fully described in Exhibit A attached hereto (the “Land”); and


                    WHEREAS,
Mortgagor, certain lenders (collectively, the “Lenders”) and Mortgagee
are parties to a Loan Agreement dated as of the date hereof (said Loan
Agreement, as modified and supplemented and in effect from time to time, being
herein called the “Loan Agreement”; and except as otherwise herein
expressly provided, all terms defined in the Loan Agreement are being used
herein as defined therein), which Loan Agreement provides, among other things,
for Loans to be made by the Lenders to Mortgagor in an aggregate principal
amount not exceeding $86,000,000.00 to be evidenced by, and repayable with interest
thereon in accordance with, various Notes to be executed and delivered to the
respective order of the Lenders (collectively, as such notes may be
consolidated, severed, modified, amended, restated or extended, the “Notes”);
and


                    WHEREAS,
pursuant to that certain Declaration of Condominium for The 400
E. Fordham Road Condominium (hereinafter, the “Declaration”) dated as of
October 23, 2008 and recorded on December 18, 2008 in the New York County
Office of the New York City Register as CRFN 2008000481411, together with all
amendments thereto, if any, Acquisitions has established a condominium
consisting of two (2) separate and distinct units, more specifically identified
in the Declaration as the “Retail Unit” and the “Office/Community Unit”; and


                    WHEREAS,
Acquisitions has transferred the Office/Community Unit to Fordham
Office; and


                    WHEREAS,
it is a condition to the obligation of the Lenders to extend credit to
Mortgagor pursuant to the Loan Agreement that Mortgagor execute and deliver
this Mortgage as the Mortgage under the Loan Agreement.


                    NOW,
THEREFORE, in
consideration of the foregoing recitals, which are incorporated into the
operative provisions of this Mortgage by this reference, and for other good and
valuable consideration, the receipt
and adequacy of which are hereby conclusively acknowledged,





                    To
secure the payment of an
indebtedness in the principal sum of EIGHTY-SIX MILLION DOLLARS ($86,000,000.00),
lawful money of the United States of America to be paid with interest
(including, without limitation, any Additional Interest under any Hedge
Agreement to the extent provided in the Loan Agreement) according to the Notes,
and the payment and performance of all other Obligations (defined below) of
Mortgagor hereunder, Mortgagor has mortgaged, given, granted, bargained, sold,
alienated, conveyed, confirmed, pledged, assigned and hypothecated and by these
presents do mortgage, give, grant, bargain, sell, alienate, convey, confirm,
pledge, assign and hypothecate unto Mortgagee all right, title, interest and
estate of Mortgagor, now owned, or hereafter acquired, in and to the following
property, rights and interests (such property, rights and interests being
collectively referred to herein as the “Mortgaged Property”), subject
only to the Permitted Encumbrances (as defined below):


                    (a)
the Land;


                    (b)
any and all buildings, constructions and improvements now or hereafter erected
or located in or on the Land or any portion thereof, including all Equipment
(defined below) and other articles now or hereafter attached or affixed thereto
or located thereon and owned or ground leased by Mortgagor, together with all
appurtenances and additions thereto and betterments, renewals, substitutions
and replacements thereof (collectively, the “Improvements”), all of
which shall be deemed and construed to be part of the realty;


                    (c)
all of the estate, rights, title,
interest, claims or demands of any nature whatsoever of Mortgagor, whether in
law or in equity, in possession or expectancy, in and to the Mortgaged Property
or any part thereof;


                    (d)
all easements, streets, rights-of-way, strips and gores of land, ways, alleys,
passages, sewer rights, waters, water courses, water rights and powers, and all
estates, rights, titles, interests, privileges, liberties, tenements,
hereditaments, and appurtenances of any nature whatsoever, in any way
belonging, relating or pertaining to the Mortgaged Property (including any
and all development rights, air rights, signage rights, rights under trackage
agreements, mineral, mining, oil and gas rights and rights to produce or share
in the production of anything related thereto and similar or comparable rights
of any nature whatsoever now or hereafter appurtenant to the Project or now or
hereafter transferred to the Project) and all land lying in the bed of any
street, road or avenue, opened or proposed, in front of or adjoining the
Project to the center line thereof and all the estates, rights, titles,
interests, dower and rights of dower, curtesy and rights of curtesy property,
possessions, claims and demands whatsoever, both at law and in equity, of
Mortgagor of, in and to the Project, and every part and parcel thereof, with
the appurtenances thereto (collectively, the “Appurtenances”; the Land,
the Improvements and the Appurtenances being referred to herein, collectively,
as the “Premises”);


                    (e)
all machinery, apparatus, equipment, fittings, fixtures (including all heating,
air conditioning, plumbing, lighting, communications and elevator fixtures) and
other property of every kind and nature whatsoever owned or leased by Mortgagor, or in which Mortgagor
has or shall have an interest, now or hereafter located upon the Mortgaged
Property, or appurtenant thereto, or useable in connection with the present or
future operation and occupancy of the Mortgaged Property 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


-2-





upon the Mortgaged Property, including all such items that do not
constitute personal property under the laws of the State of New York (herein
collectively referred to as the “Equipment”), and the right, title and
interest of Mortgagor in and to any of the Equipment that may be subject to any
security agreements (as defined in the Uniform Commercial Code of the State of
New York (the “Uniform Commercial Code”)), superior or inferior or pari
passu in lien to the lien of this Mortgage;


                    (f)
all awards or payments, including interest thereon, and the right to receive
the same, which may heretofore or hereafter be made with respect to the whole or part of the
Mortgaged Property, whether from the exercise of the right of eminent domain
(including any proceeding or transfer in lieu of or in anticipation of the
exercise of such right), or for any other injury to or decrease in the value of
the Mortgaged Property, including any award resulting from a change of any
streets (whether as to grade, access or otherwise) and any award for severance
damages;


                    (g)
all tax refunds, including interest thereon, and tax abatements, and the right
to receive the same, which may be payable or available with respect to the Mortgaged Property;


                    (h)
all leasehold estates, leases, ground leases, subleases, licenses,
concessionaire agreements, bailments or other agreements affecting the use,
enjoyment or occupancy of the Mortgaged Property or any portion thereof now or hereafter existing or entered
into (including any use or occupancy arrangements created pursuant to Section
365(d) of Title 11 of the United States Code (the “Bankruptcy Code”) or
otherwise in connection with the commencement or continuance of any bankruptcy,
reorganization, arrangement, insolvency, dissolution, receivership or similar
proceedings, or any assignment for the benefit of creditors, in respect of any
tenant or occupant of any portion of the Mortgaged Property (a “Tenant”)
and all extensions, amendments and modifications thereto heretofore or
hereafter entered into (collectively, the “Leases”), and all right,
title and interest of Mortgagor thereunder, including all guaranties thereof;


                    (i)
all rents, issues, profits, royalties, use and occupancy charges (including all
oil and gas or other mineral royalties and bonuses), income and other benefits
now or hereafter derived from any portion of the Mortgaged Property or the use
or occupancy thereof (including any payments received pursuant to Section
502(b) of the Bankruptcy Code or otherwise in connection with the commencement
or continuance of any bankruptcy, reorganization, arrangement, insolvency,
dissolution, receivership or similar proceedings, or any assignment for the
benefit of creditors, in respect of any Tenant of any portion of the Mortgaged
Property and all claims as a creditor in connection with any of the foregoing)
and all cash or security deposits, advance rentals, and all deposits or
payments of a similar nature relating thereto (collectively, the “Rents”);


                    (j)
all proceeds of and any unearned premiums on any insurance policies that may
now or hereafter cover the Mortgaged Property, including the right to receive
and apply the proceeds of any insurance, judgments or settlements made in lieu
thereof, for damage to the Mortgaged Property;


                    (k)
all right, title and interest of Mortgagor in, to and under all plans,
specifications, maps, surveys, studies, reports, permits, licenses,
architectural, engineering and construction contracts, books of account, insurance policies and other documents, of whatever kind


-3-





or character, relating to the use, development, construction upon,
occupancy, leasing, sale or operation of the Mortgaged Property;


                    (l)
all the fixtures and, to the extent the same constitutes an interest in real
property, all of the property described in Exhibit B attached hereto,
now owned or hereafter acquired by Mortgagor, and all appurtenances and
additions thereto and betterments, renewals, substitutions and replacements
thereof (collectively, the “Fixtures”); and, if the lien and security
interest of this Mortgage is subject to any security interest in such property,
all right, title and interest of Mortgagor now owned or hereafter arising in
and to any and all such
property is hereby assigned to Mortgagee, together with the benefits of all
deposits and payments now or hereafter made thereon by or on behalf of
Mortgagor;


                    (m)
all right, title and interest
now owned or hereafter acquired by Mortgagor in and to all options to purchase
or ground lease the Mortgaged Property or any portion thereof or interest
therein, and in and to any greater estate in the Premises or any other
Mortgaged Property;


                    (n)
the right, in the name and on
behalf of Mortgagor, to appear in and defend any action or proceeding brought
with respect to the Mortgaged Property, and to commence any action or
proceeding to protect the interest of Mortgagee and the Lenders in the
Mortgaged Property; 


                    (o)
all proceeds, products, substitutions, and accessions of the foregoing of every
type; and


                    (p)
all right, title and interest of Mortgagor in, to and under (including the
benefits thereunder) the Declaration (as defined above).


As used herein, “Permitted Encumbrances” means the outstanding liens,
easements, restrictions, security interests and other exceptions to title set
forth in the policy of title insurance insuring the lien of this Mortgage,
together with the liens and security interests in favor of Mortgagee created by
the Loan Documents.


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


                    PROVIDED ALWAYS, that if the principal of and
interest (including, without limitation, any Additional Interest) on the Notes
and all of the other Obligations shall be paid in full according to the terms
of the Notes, the Loan Agreement, any Hedge Agreement (but only if entered into
with a Eurohypo Counterparty thereof pursuant to the terms of the Loan
Agreement) and the other Loan Documents and Mortgagor shall abide by and comply
with each and every covenant contained herein or therein, then this Mortgage
and the estate hereby granted shall cease, terminate and become void.



                    TO
PROTECT THE SECURITY OF THIS MORTGAGE, MORTGAGOR HEREBY COVENANTS AND AGREES
WITH MORTGAGEE AND THE LENDERS AS FOLLOWS:


-4-





ARTICLE 1


OBLIGATIONS


          Section
1.01 Obligations.


                    This
Mortgage is executed, acknowledged and delivered by Mortgagor to secure and
enforce the following obligations (collectively, the “Obligations”),
subject to the limitations set forth in Section 1.02 hereof:


                    (a)
Payment of the entire unpaid principal amount of the Notes, together with all
interest (including, without limitation, any Additional Interest) accrued and
unpaid thereon, any fees due under the Fee Letter and all other amounts that
may or shall become due and owing under this Mortgage, the Notes, the Loan
Agreement, the Hedge Agreement (but only if
entered into with a Eurohypo Counterparty thereof pursuant to the terms of the
Loan Agreement) and the other Loan Documents, including all sums
advanced pursuant to the terms of this Mortgage to protect and preserve the
Mortgaged Property and the lien and security interest hereby created therein at
the time and in the manner provided therein for such payment;


                    (b)
Full and prompt performance of every obligation, covenant and agreement of Mortgagor
arising under or in connection with this Mortgage, the Notes, the Loan
Agreement and all other Loan Documents at the time and in the manner provided
therein for such performance;


                    (c)
Payment of all other indebtedness and liabilities and performance of all other
obligations of Mortgagor to Mortgagee and the Lenders arising pursuant to or in
connection with this Mortgage or any other Loan Document (including, without
limitation, as Additional Interest, any Hedge Agreement, but only if entered into with a Eurohypo Counterparty thereof pursuant
to the terms of the Loan Agreement); and


                    (d)
All renewals, extensions, amendments, modifications, consolidations and changes
of, or substitutions or replacements for, all or any part of the items
described under clauses (a) through (c) above.


          Section
1.02 Maximum Secured Indebtedness.


                    NOTWITHSTANDING
ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE MAXIMUM AMOUNT OF PRINCIPAL
INDEBTEDNESS SECURED BY THIS MORTGAGE AT THE TIME OF EXECUTION OR WHICH UNDER
ANY CONTINGENCY MAY HEREAFTER BECOME SECURED BY THIS MORTGAGE AT ANY TIME IS
EIGHTY-SIX MILLION DOLLARS ($86,000,000.00); TOGETHER WITH (A) INTEREST
(INCLUDING, WITHOUT LIMITATION, ANY ADDITIONAL INTEREST) ON THE AFORESAID
PRINCIPAL INDEBTEDNESS AT THE RATES SET FORTH IN THE NOTES AND (B) AMOUNTS
EXPENDED BY MORTGAGEE AFTER DEFAULT OF SUMS ADVANCED OR PAID FOR HEREUNDER TO
MAINTAIN THE LIEN OF THIS MORTGAGE OR TO PROTECT THE PREMISES SECURED BY THIS
MORTGAGE, INCLUDING, WITHOUT LIMITATION, AMOUNTS IN RESPECT OF INSURANCE
PREMIUMS, IMPOSITIONS (OR PAYMENTS IN LIEU OF IMPOSITIONS), LITIGATION


-5-





EXPENSES TO
PROSECUTE OR DEFEND THE RIGHTS, REMEDIES AND LIEN OF THIS MORTGAGE OR TITLE TO
THE PREMISES SECURED HEREBY, AND ANY COSTS, CHARGES OR AMOUNTS TO WHICH
MORTGAGEE OR THE LENDERS BECOME SUBROGATED UPON PAYMENT, WHETHER UNDER
RECOGNIZED PRINCIPLES OF LAW OR EQUITY OR UNDER EXPRESS STATUTORY AUTHORITY.


ARTICLE 2


PARTICULAR COVENANTS AND AGREEMENTS OF MORTGAGOR


          Section
2.01 Payment of Secured Obligations.


                    Mortgagor
shall pay and perform the Obligations in full in accordance with the terms of
the Notes, the Loan Agreement and the other Loan Documents.


          Section
2.02 Title, etc.


                    (a)
Mortgagor represents and warrants that (i)
Mortgagor is lawfully seized and possessed of good, marketable and insurable
fee simple title to the Premises and good sufficient and legal title to all
other portions of the Mortgaged Property, in each case subject to no Liens
other than Permitted Encumbrances and (iii) it has the full power and lawful
authority to grant, bargain, sell, release, convey, warrant, assign, transfer,
mortgage, pledge, set over and confirm unto Mortgagee the Mortgaged Property as
hereinabove provided.


                    (b)
Mortgagor shall, at Mortgagor’s sole cost and expense, preserve Mortgagor’s
title to the Mortgaged Property and the validity, enforceability and first
priority of the lien of this Mortgage (subject to the Permitted Encumbrances)
and shall forever warrant and defend the same to Mortgagee against the claims
of each and every Person claiming or threatening to claim the same or any part
thereof.


                    (c)
If the lien or security interest created by this Mortgage, or the validity,
enforceability or priority thereof or of this Mortgage, or if title or any of
the rights of Mortgagor or Mortgagee in or to the Mortgaged Property, shall be
endangered or questioned, or shall be attacked directly or indirectly, or if
any action or proceeding is instituted against Mortgagor, Mortgagee or any
Lender with respect thereto, Mortgagor will promptly notify Mortgagee thereof
and will diligently take such action as may be required to cure any defect that
may be developed or claimed, and will take all necessary and proper steps for
the defense of such action or proceeding, including the employment of counsel,
the prosecution or defense of litigation and (subject to Mortgagee’s approval,
not to be unreasonably withheld or delayed) the release or discharge of any and
all adverse claims. Mortgagee shall have the right to appear in and defend any
such actions or proceedings (whether or not originally named as a party to such
actions or proceedings) and is hereby authorized and empowered (but shall not
be obligated) to take such additional steps as it may deem necessary or proper,
in the name and on behalf of Mortgagor, for the defense of any such action or
proceeding or the protection of the lien, security interest, validity,
enforceability or priority of this Mortgage or of such title or rights,
including the employment of counsel, the institution, prosecution or defense of
litigation, the compromise,


-6-





release or
discharge of such adverse claims, the purchase of any tax title and the removal
of such prior liens and security interests.


          Section
2.03 Further Assurances; Filing; Re-Filing; etc.


                    (a)
Mortgagor shall execute, acknowledge and
deliver, from time to time, such further instruments as may be necessary, or
that Mortgagee may reasonably require to accomplish the purposes of this
Mortgage.


                    (b)
Mortgagor, immediately upon the execution and delivery of this Mortgage, and
thereafter from time to time, shall cause this Mortgage, any security agreement
or mortgage supplemental hereto and each instrument of further assurance to be
executed, acknowledged, filed, registered or recorded and refiled,
re-registered or re-recorded in such manner and in such places as may be
required by Mortgagee or by any present or future law in order to publish
notice of and perfect the lien and estate of this Mortgage upon, and security
interest in, the Mortgaged Property.


                    (c)
Mortgagor shall pay all filing, registration and recording fees, all refiling,
re-registration and re-recording fees, and all expenses incident to the
execution, filing, recording and acknowledgment of this Mortgage, any security
agreement or mortgage supplemental hereto and any instrument of further
assurance, and all Federal, state, county and municipal stamp taxes, mortgage
taxes and other taxes, duties, imposts, assessments and charges arising out of
or in connection with the execution, delivery, filing and recording of the Notes,
this Mortgage, the Loan Agreement or any of the other Loan Documents, any
security agreement or mortgage supplemental hereto or any instruments of
further assurance.


          Section
2.04 Liens; Transfers.


                    Mortgagor
shall not create or suffer to be created any Lien upon the Mortgaged Property
prior to, on a parity with, or subordinate to the lien of this Mortgage or
permit any transfers in violation of Section 9.1 of the Loan Agreement, other
than Permitted Encumbrances.


          Section
2.05 Insurance.


                    Mortgagor
shall cause the Mortgaged Property to be insured in the manner and to the
extent required by Section 3.1 of the Loan Agreement.


          Section
2.06 Impositions.


                    Mortgagor
shall pay or cause to be paid, before any fine, penalty, interest or cost
attaches thereto, all Impositions (as defined below) in accordance with Section
9.2 of the Loan Agreement, including, without limitation, all taxes,
assessments, water and sewer rates, utility charges and all other governmental
or nongovernmental charges or levies now or hereafter assessed or levied
against any part of the Mortgaged Property (including, without limitation,
nongovernmental levies or assessments such as maintenance charges, owner association
dues or charges or fees, levies or charges resulting from covenants, conditions
and restrictions affecting the Mortgaged Property) or upon the lien or estate
of Mortgagee therein, as well as all claims for labor, materials or supplies
that, if unpaid, might by law become a prior lien thereon


-7-





(collectively,
the “Impositions”), and within ten (10) days after request by Mortgagee
will exhibit receipts showing payment of any of the foregoing; provided,
however, that if by law any such Imposition may be paid in installments
(whether or not interest shall accrue on the unpaid balance thereof), Mortgagor
may pay the same in installments (together with accrued interest on the unpaid
balance thereof) as the same respectively become due, before any fine, penalty
or cost attaches thereto.


          Section
2.07 Maintenance of the Improvements and Equipment.


                    Mortgagor
shall (i) not permit the Improvements or Fixtures to be removed or demolished;
(ii) maintain the Mortgaged Property in good repair, working order and
condition; and (iii) restore and repair the Improvements and Equipment or any
part thereof now or hereafter affected by any Casualty Event or Taking in
accordance with the Loan Agreement.


          Section
2.08 Compliance With Laws.


                    Mortgagor
covenants and agrees to (i) comply with all applicable laws, including, without
limitation, Environmental Laws, in accordance with Article 5 of the Loan Agreement and the Environmental
Indemnity and (ii) indemnify and hold Mortgagee and the Lenders harmless from
and against any and all losses, liabilities, claims, damages or expenses
arising from Mortgagor’s failure to so comply with applicable law, including,
without limitation, Environmental Laws, in accordance with the Loan Agreement and the Environmental
Indemnity.


          Section
2.09 Limitations of Use.


                    Mortgagor
shall not initiate, join in or consent to any change in any private restrictive
covenant, zoning ordinance or other public or private restrictions limiting or
defining the uses that may be made of the Premises or any part thereof without
the prior written consent of Mortgagee. Mortgagor shall comply with the
provisions of all Governmental Approvals and all licenses, agreements and private
covenants, conditions and restrictions that at any time are applicable to the
Mortgaged Property.


          Section
2.10 Actions to Protect Mortgaged Property.


                    If
Mortgagor shall fail beyond any applicable notice and/or grace period to (i)
effect the insurance required by Section 2.05 hereof, (ii) make the
payments required by Section 2.06 hereof or (iii) perform or
observe any of its other covenants or agreements hereunder, Mortgagee may,
without obligation to do so, and upon notice to Mortgagor (except in an
emergency) effect or pay the same; provided however, any such payment by the
Mortgagee shall not affect whether such failure by the Mortgagor constitutes an
Event of Default. To the maximum extent permitted by law, all sums, including
reasonable attorneys’ fees and disbursements, so expended or expended to
sustain the lien or estate of this Mortgage or its priority, or to protect or
enforce any of the rights hereunder, or to recover any of the Obligations,
shall be a lien on the Mortgaged Property, and shall, subject to the provisions
of Section 1.02 hereof, be deemed to be added to the Obligations secured
hereby, and shall be paid by Mortgagor within 10 days after demand therefor,
together with interest thereon at the Post-Default Rate. For such purpose,
Mortgagor expressly grants to Mortgagee, in addition to, and without prejudice
to, any other rights and remedies hereunder, (1) the right to enter upon (and,
in Mortgagee’s discretion, to take possession of) the Mortgaged Property to
such extent


-8-





and as often as it may deem necessary or desirable to prevent or remedy
any such default or to take any such action, and (2) the right to appear in,
defend or bring any action or proceeding to protect Mortgagee’s interest in the
Mortgaged Property or, during the continuance of an Event of Default, to
foreclose this Mortgage or collect the Obligations, and Mortgagor hereby
irrevocably appoints and constitutes Mortgagee as Mortgagor’s lawful
attorney-in-fact, coupled with an interest and with full power of substitution,
for such purposes and the taking of all acts incidental thereto. No such
advance, performance or action or proceeding shall be deemed to have cured such
Default or any Event of Default (as hereinafter defined) with respect thereto.
In any action or proceeding to foreclose this Mortgage or recover or collect
the Obligations, Mortgagee and the Lenders shall be entitled to recover the
reasonable costs, expenses and attorneys’ fees and disbursements incurred in
foreclosing or attempting to collect upon the Obligations, which costs,
expenses and attorneys’ fees, to the extent permitted by applicable law, shall
also be secured by this Mortgage.


          Section
2.11 Insurance and Condemnation Proceeds.


                    Mortgagor
assigns to Mortgagee on behalf of the Lenders, all of Mortgagor’s right, title
and interest in (i) all awards or payments,
including interest thereon, and the right to receive the same, which may
heretofore or hereafter be made with
respect to the whole or part of the Mortgaged Property, whether from the
exercise of the right of eminent domain (including any proceeding or transfer
in lieu of or in anticipation of the exercise of such right), or for any other
injury to or decrease in the value of the Mortgaged Property, including any
award resulting from a change of any streets (whether as to grade, access or
otherwise) and any award for severance damages and (ii) all proceeds of and any
unearned premiums on any insurance policies that may now or hereafter cover the
Mortgaged Property, including the right to receive and apply the proceeds of
any insurance, judgments or settlements made in lieu thereof, for damage to the
Mortgaged Property. Any Insurance Proceeds or Condemnation Awards shall be held
and applied by Mortgagee in accordance with Article X of the Loan Agreement.


          Section
2.12 Inspections.


                    Mortgagor
shall permit Mortgagee and each Lender, and their agents, representatives and
employees, upon reasonable prior notice to Mortgagor, to inspect the Mortgaged
Property and conduct such environmental and engineering studies as Mortgagee
may require pursuant to the Environmental Indemnity, provided that such
inspections and studies shall not materially interfere with the use and
operation of the Mortgaged Property.


ARTICLE 3


ASSIGNMENT OF LEASES AND RENTS


          Section
3.01 Assignment of Rents, Issues and Profits.


                    (a)
Mortgagor hereby absolutely and
unconditionally assigns to Mortgagee, as part of the consideration for the
transactions contemplated by this Mortgage and the other Loan Documents, the
Rents and Leases and other documents or instruments evidencing the Rents now or
hereafter in effect and any and all deposits or letters of credit held as security
under the Leases, it being intended by Mortgagor and Mortgagee that such
assignment constitutes an absolute and


-9-





present assignment and not an assignment for additional security only.
Nothing contained in the foregoing sentence shall be construed to bind
Mortgagee to the performance of any of the covenants, conditions or provisions
contained in any such Lease or other document or otherwise to impose any
obligation on Mortgagee (including any liability under the covenant of quiet
enjoyment contained in any Lease), except that Mortgagee shall be accountable
for any money or security actually received pursuant to such assignment. Such
assignment and grant shall continue in effect until the Obligations have been
indefeasibly paid in full, the execution of this Mortgage constituting and
evidencing the irrevocable consent of Mortgagor to the entry upon and taking
possession of the Mortgaged Property by Mortgagee and the exercise by Mortgagee
of the rights and powers granted pursuant hereto, including, without
limitation, those set forth in clauses (i) through (vii) below, regardless of
whether foreclosure has been instituted and without applying for a receiver.
Such assignment shall include, without limitation:


	
  

 	
  

 
	
  

 	
                     (i)
 the immediate and continuing right to
 receive and collect all amounts payable by all Tenants, including without
 limitation (A) all Rents,(B) all damages or other amounts payable in the
 event of any expiration or termination of any Lease pursuant to the terms
 thereof, by operation of law or otherwise, (C) any indemnification against,
 or reimbursement for, sums paid and costs and expenses incurred by Mortgagor
 under any Lease or otherwise, (D) any award in the event of the bankruptcy of
 any Tenant or guarantor of a Lease, and (E) all security deposits, other
 security instruments, other deposits or prepayments with respect to any such
 Leases;

 
	
  

 	
  

 
	
  

 	
                     (ii)
 all claims, rights, powers, privileges and remedies of Mortgagor, whether
 provided for in any Lease or arising by statute or at law or in equity or
 otherwise, consequent on any failure on the part of any Tenant to perform or
 comply with any term of any Lease; 

 
	
  

 	
  

 
	
  

 	
                     (iii)
 all right to take all action upon the happening of a default under any Lease
 as shall be permitted by any Lease or by law, including, without limitation,
 the commencement, conduct and consummation of proceedings at law or in
 equity;

 
	
  

 	
  

 
	
  

 	
                     (iv)
 the full power and authority, in the name of Mortgagor, or otherwise, to
 enforce, collect, receive and make receipt for any and all of the foregoing
 and to do any and all other acts and things whatsoever which Mortgagor, or
 any landlord is or may be entitled to do under any Lease;

 
	
  

 	
  

 
	
  

 	
                     (v)
 the full power and authority, in the name of Mortgagor, or otherwise, to
 enforce any Lease;

 
	
  

 	
  

 
	
  

 	
                     (vi)
 the full power and authority, in the name of Mortgagor, or otherwise, to
 lease the Mortgaged Property; and

 
	
  

 	
  

 
	
  

 	
                     (vii)
 the right to apply the Rents to the payment of the Obligations in accordance
 with the Loan Agreement.

 



                    (b)
During the term hereof, all rights, powers
and privileges of Mortgagee herein set forth are coupled with an interest and
are irrevocable, subject to the terms and conditions hereof, and Mortgagor will
not take any action under any Lease or otherwise which is inconsistent with
this


-10-





Mortgage or any of the terms hereof or thereof and any such action
inconsistent herewith or therewith shall, to the fullest extent permitted by
applicable law, be void. Any further assignment of any rents, issues, or
profits from the Mortgaged Property shall to the fullest extent permitted by
law be void. To the fullest extent permitted by applicable law, Mortgagor
hereby waives any requirement that Mortgagee commence any foreclosure
proceeding with respect to any or all of the Mortgaged Property prior to
enforcement of any remedies pursuant to this Article 3, including the
right to commence and prosecute an action to appoint a receiver for rents and
all other amounts due under any Leases. Mortgagor will, from time to time, upon
request of Mortgagee, execute all instruments and further assurances and all
supplemental instruments and take all such action as Mortgagee from time to
time may reasonably request in order to perfect, preserve and protect the
interests intended to be assigned to Mortgagee hereby.


                    (c)
Mortgagor hereby agrees that it will not, unilaterally or by agreement, (i)
subordinate, amend, modify, extend, discharge, terminate, surrender, waive or
otherwise change any term of any Lease in any manner which would violate this
Mortgage, the Loan Agreement or the other Loan Documents or (ii) except for
security deposits, accept a prepayment of Rent in excess of Rent for one month.
If any Lease shall be amended as permitted hereby, such Lease shall continue to
be subject to the provisions hereof without the necessity of any further act by
any of the parties hereto, subject to the provisions of any non-disturbance
agreement which Mortgagee may have granted in accordance with the provisions of
this Mortgage.


          Section
3.02 Grant of License; Revocation.


                    Until
the occurrence of an Event of Default, Mortgagee waives its rights under Section
3.01 above, and grants Mortgagor a license to collect the Rents and enforce
any rights, remedies, entitlements, benefits and/or powers assigned hereunder
or granted to Mortgagee, including, without limitation, those enumerated in clauses
(i) through (vii) of Section 3.01(a). Such license to
collect, receive and retain the Rents and enforce such rights, remedies,
entitlements, benefits and/or powers shall be automatically revoked and the
rights of Mortgagor thereunder shall automatically cease and terminate upon the
occurrence of an Event of Default under this Mortgage. In such event, (i)
Mortgagor hereby authorizes Mortgagee to receive and collect the Rents due
under the terms of each Lease and to direct any Tenant, by written notice from
Mortgagee or otherwise, to forward such Rents by mail or in person to Mortgagee
and (ii) Mortgagor shall immediately pay to Mortgagee any Rents held by or
under the control of Mortgagor. Mortgagor hereby irrevocably appoints and
constitutes Mortgagee as Mortgagor’s lawful attorney-in-fact, coupled with an
interest and with full power of substitution, for the purpose of taking any of
the actions described in the immediately preceding sentence and all acts
incidental thereto. Following the revocation of the license herein granted,
Mortgagee may retain and apply the Rents toward payment of the Obligations in
such order, priority and proportions as Mortgagee, in its discretion, shall
deem proper, or to the operation, maintenance and repair of the Mortgaged
Property, and irrespective of whether Mortgagee shall have commenced a
foreclosure of this Mortgage or shall have applied or arranged for the
appointment of a receiver with respect thereto.


-11-





          Section
3.03 Direction to Tenants.


                    Mortgagor
hereby irrevocably authorizes and directs each Tenant of the Mortgaged
Property, upon receipt of notice from Mortgagee of an Event of Default, to pay
all Rents due or to become due under its Lease directly to Mortgagee or to any appointed receiver of the
Mortgaged Property. Each such Tenant shall have the right to rely upon any such
notice of Mortgagee directing the payment of all Rents to Mortgagee, without
any obligation to inquire as to the actual existence of the Event of Default, notwithstanding
any claim of Mortgagor to the contrary and Mortgagor shall have no rights or
claims against any Tenant for any Rents so paid to Mortgagee. Mortgagor shall
facilitate, in all reasonable ways, the collection of the Rents by Mortgagee
and will, upon request by Mortgagee, execute a written notice to each Tenant
directing the Tenant to pay the Rents payable under such Tenant’s respective
Lease to Mortgagee. Each Tenant is hereby expressly authorized and directed,
upon demand by Mortgagee and without the necessity of any further consent by,
or notice from, Mortgagor, to attorn to Mortgagee as the owner of the Leases
and to pay any and all Rents due to Mortgagor pursuant to such Tenant’s Lease
directly to Mortgagee or to any appointed receiver, and to observe and perform
such Tenant’s obligations under the Tenant’s Lease to or for Mortgagee and to
accept performance of the landlord’s obligations under the Lease from
Mortgagee. Each Tenant is hereby expressly relieved of any and all duty,
liability or obligation to Mortgagor in respect of all payments so made. The
payment of Rents to Mortgagee pursuant to Mortgagee’s demand and the
performance of obligations under any Lease to or for the benefit of Mortgagee
shall not cause Mortgagee to assume or be bound by any of the provisions of any
such Lease and shall not relieve Mortgagor of its obligations thereunder.


          Section
3.04 Section 291-f Agreement.


                    (a)
This Mortgage is intended to be, and shall
operate as, the agreement described in Section 291-f of the Real Property Law
of the State of New York and shall be entitled to the benefits afforded
thereby. 


                    (b)
Mortgagor shall (unless such notice is contained in such Tenant’s Lease)
deliver notice of this Mortgage, which notice shall be to all present and
future holders of any interest in any Lease, by assignment or otherwise, and
shall take such other action as may now or hereafter be reasonably required to
afford Mortgagee the full protections and benefits of such Section 291-f; and


                    (c)
Mortgagor shall request the recipient of any such notice to acknowledge the
receipt thereof.


ARTICLE 4


SECURITY AGREEMENT; FIXTURE FILING


          Section
4.01 Creation of Security Interest.


                    This
Mortgage constitutes both a real property mortgage and a “security agreement”,
within the meaning of the Uniform Commercial Code. 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 whether now or hereafter existing.


-12-





Mortgagor by
executing and delivering this Mortgage has granted and hereby grants to
Mortgagee, as security for the Obligations, a security interest in (a) the
Mortgaged Property, and (b) the personal property identified on Exhibit
B attached hereto whether now or hereafter existing, in each case to the
fullest extent that the same may be subject to the Uniform Commercial Code (all
of such personal property so subject to the Uniform Commercial Code, the “Personal
Property Collateral”). If an Event of Default shall exist, (i) Mortgagee,
in addition to any other rights and remedies that 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,
including the right to take possession of the Personal Property Collateral, or
any part thereof, and to take such other measures as Mortgagee may deem
necessary for the care, protection and preservation of the Personal Property
Collateral and (ii) upon request or demand of Mortgagee, Mortgagor shall, at
Mortgagor’s sole expense, assemble the Personal Property Collateral and make it
available to Mortgagee at a convenient place acceptable to Mortgagee. Mortgagor
shall pay to Mortgagee on demand any and all expenses, including reasonable
attorneys’ fees, costs and disbursements, incurred or paid by Mortgagee in
protecting its interest in the Personal Property Collateral and in enforcing
its rights hereunder with respect to the Personal Property Collateral. Any
notice of sale, disposition or other intended action by Mortgagee with respect
to the Personal Property Collateral sent to Mortgagor in accordance with the
provisions of this Mortgage at least five (5) Business Days prior to such sale,
disposition or other action, shall constitute reasonable notice to Mortgagor,
and the method of sale or disposition or other intended action set forth or
specified in such notice shall conclusively be deemed to be commercially
reasonable within the meaning of the Uniform Commercial Code unless objected to
by Mortgagor within three (3) Business Days after such notice. The proceeds of
any sale or disposition of the Personal Property Collateral, or any part
thereof, may be applied by Mortgagee to the payment of the Obligations in such
priority and proportions as Mortgagee in its discretion shall deem proper.


          Section
4.02 Continuation Statements; Amendments.


                    Mortgagor
hereby authorizes Mortgagee to file one or more financing or continuation
statements, and amendments thereto, relative to all or any part of the Personal Property Collateral
without the signature of Mortgagor where permitted by applicable law.


          Section
4.03 Fixture Filing.


                    This
Mortgage shall also constitute a “fixture filing” filed as a fixture filing in
the Official Records of the County Recorder of the county in which the
Mortgaged Property is located for the purposes of the Uniform Commercial Code
against all of the Mortgaged Property which is or is to become fixtures.
Information concerning the security interest herein granted may be obtained at
the address of Debtor (Mortgagor).


-13-





ARTICLE 5


DEFAULTS; REMEDIES


          Section
5.01 Events of Default.


                    If
any Event of Default (herein, an “Event of Default”) under the Loan
Agreement shall occur and be continuing then, as more particularly provided in
the Loan Agreement, the unpaid principal of and accrued interest on the Notes
and all other Obligations under the Loan Agreement may be declared, or may
become, due and payable, without presentment, demand, protest or other
formalities of any kind, all of which have been waived pursuant to the Loan
Agreement.


          Section
5.02 Remedies.


                    If
an Event of Default shall have occurred and be continuing, this Mortgage may,
to the maximum extent permitted by law, be enforced, and Mortgagee may exercise
any right, power or remedy permitted to it hereunder, under the Loan Agreement
or under any of the other Loan Documents or by law, and, without limiting the
generality of the foregoing, Mortgagee may, personally or by its agents,
exercise any of the following to the maximum extent permitted by law:


                    (a)
Subject to any applicable provisions of the
Notes, the Loan Agreement, the Hedge Agreement and the other Loan Documents,
Mortgagee may declare all or any portion of the unpaid principal balance under
the Notes, together with all accrued and unpaid interest (including, without
limitation, any Additional Interest) thereon, and all other unpaid Obligations,
to be immediately due and payable; 


                    (b)
Mortgagee may enter into or upon the Premises, personally or by its agents,
nominees or attorneys, and may dispossess Mortgagor and its agents and servants
therefrom, and thereupon Mortgagee at its sole discretion may: (i) use,
operate, manage, control, insure, maintain, repair, restore and otherwise deal
with all and every portion of the Mortgaged Property and conduct business
thereon, in any case either in the name of Mortgagee or in such other name as
Mortgagee shall deem best; (ii) complete any construction with respect to the
Mortgaged Property in such manner and form as Mortgagee deems advisable; (iii)
make alterations, additions, renewals, replacements and improvements to or on
the Mortgaged Property; (iv) exercise all rights and powers of Mortgagor with
respect to the Mortgaged Property, whether in the name of Mortgagor or
otherwise, including the right to make, cancel, enforce or modify Leases,
obtain and evict tenants, and demand, sue for, collect and receive all Rents;
and (v) apply the receipts of all such Rents to the payment of the Obligations
as provided in the Loan Agreement, after deducting therefrom all expenses
(including reasonable attorneys’ fees and disbursements) incurred in connection
with the aforesaid operations and all amounts necessary to pay the operating
costs for the Mortgaged Property and other charges in connection with the
Mortgaged Property, as well as just and reasonable compensation for the
services of Mortgagee, its agents, nominees and attorneys.


                    (c)
With or without entry, personally or by its agents, nominees or attorneys,
Mortgagee may sell all or any portion of the Mortgaged Property and all or any
portion of


-14-





Mortgagor’s
estate, right, title, interest, claim and demand therein and right of
redemption thereof at one or more private or public sales in the manner and to
the extent permitted by law, as an entirety or in parcels or portions, and
Mortgagee shall have the statutory power of sale if and to the extent provided
by applicable law.


                    (d)
Mortgagee may institute proceedings for the complete or partial foreclosure of
this Mortgage against all or any portion of the Mortgaged Property, in which
case the Mortgaged Property may be sold for cash or upon credit, as an entirety
or in parcels or portions.


                    (e)
Mortgagee may institute an action, suit or proceeding at law or in equity for
the specific performance of any covenant, condition or agreement contained
herein or in the Notes, the Loan Agreement or any other Loan Document, or in
aid of the execution of any power granted hereunder or for the enforcement of
any other appropriate legal or equitable remedy.


                    (f)
Mortgagee may recover judgment on the Notes, either before, during or after any
proceedings for the foreclosure (or partial foreclosure) or enforcement of this
Mortgage.


                    (g)
Mortgagee may, as a matter of right, secure the appointment of a receiver,
trustee, liquidator or similar official of the Mortgaged Property or any
portion thereof, and Mortgagor hereby consents and agrees to such appointment,
without notice to Mortgagor and without regard to the adequacy of the security
for the Obligations and without regard to the solvency of Mortgagor or any
other Person liable for the payment of the Obligations, and such receiver or
other official shall have all rights and powers permitted by applicable law and
such other rights and powers as the court making such appointment may confer,
but the appointment of such receiver or other official shall not impair or in
any manner prejudice the rights of Mortgagee to receive the Rents with respect
to the Mortgaged Property pursuant to this Mortgage.


                    (h)
In addition to the rights which Mortgagee may have herein, upon the occurrence
of any Event of Default, Mortgagee, at its option, may require Mortgagor to pay
monthly in advance to Mortgagee, or any receiver appointed to collect the
Rents, the fair and reasonable rental value for the use and occupation of any
portion of the Mortgaged Property occupied by Mortgagor and may require
Mortgagor to vacate and surrender possession to Mortgagee of the Mortgaged
Property or to such receiver and, Mortgagor may be evicted by summary
proceedings or otherwise.


                    (i)
Mortgagee shall have all of the rights and remedies with respect to the
Mortgaged Property and the Personal Property Collateral of a secured party
under the Uniform Commercial Code (whether or not said Uniform Commercial Code
is in effect in the jurisdiction where the rights and remedies are asserted)
and such additional rights and remedies to which a secured party is entitled
under the applicable laws, including, without limitation, the right, to the
maximum extent permitted by law, to exercise all voting, consensual and other
power of ownership pertaining to the Mortgaged Property or the Personal
Property Collateral as if Mortgagee were the sole and absolute owner thereof
(and Mortgagor agrees to take all such action as may be appropriate to give
effect to such right).


-15-





                    (j)
Mortgagee or the Lenders may pursue against Mortgagor, any other rights and
remedies of Mortgagee permitted by law, equity or contract or as set forth
herein or in the Loan Agreement, the Hedge Agreement or the other Loan
Documents.


                    (k)
Reference is made to Section 1401(1) of the New York Real Property Actions and
Proceedings Law. Mortgagor agrees that, during the existence of any Event of
Default hereunder or the Notes secured hereby, Mortgagee shall have the right
to sell the Land and without limitation, that this Mortgage may be foreclosed
in the manner prescribed in Article 14 of the New York Real Property Actions
and Proceedings Law for a non-judicial proceeding for foreclosure by power of
sale in accordance with the requirements of such Article 14 or any provision of
New York law which may hereafter be enacted permitting foreclosure by sale,
power of sale or similar procedure.


          Section
5.03 Application of Proceeds.


                    The
proceeds of any sale made either under the power of sale hereby given or under
a judgment, order or decree made in any action to foreclose or to enforce this
Mortgage, or of any monies held by Mortgagee hereunder shall be applied in the
following order:


                    (a)
First, to payment of the costs and expenses of taking possession of the
Mortgaged Property, and of the costs and expenses of the sale, including but
not limited to Mortgagee’s fees, legal fees and disbursements, title charges
and transfer taxes, and payment of all expenses, liabilities and advances of
Mortgagee;


                    (b)
Second, payment of all sums expended by Mortgagee under the terms of
this Mortgage and not yet repaid, together with interest on such sums at the
Post-Default Rate;


                    (c)
Third, to payment of the secured indebtedness and all other Obligations
secured by this Mortgage, including, without limitation, interest at the
Post-Default Rate provided for under the Loan Documents, and any charge
expressly required to be paid under the Notes in order to prepay principal, in
any order that Mortgagee chooses in its sole discretion; and


                    (d)
Finally, the remainder, if any, of such funds shall be disbursed to
Mortgagor or to any other Person or Persons legally entitled thereto.


          Section
5.04 Right to Sue.


                    Mortgagee
shall have the right from time to time to sue for any sums required to be paid
by Mortgagor under the terms of this Mortgage as the same become due, without
regard to whether or not the Obligations shall be, or have become, due and
without prejudice to the right of Mortgagee thereafter to bring any action or
proceeding of foreclosure or any other action upon the occurrence of any Event
of Default existing at the time such earlier action was commenced.


          Section
5.05 Powers of Mortgagee.


                    Mortgagee
may at any time or from time to time renew or extend this Mortgage or (with the
agreement of Mortgagor) alter or modify the same in any way, or waive any of
the terms, covenants or conditions hereof or thereof, in whole or in part, and
may release any portion of the


-16-





Mortgaged Property or any other security, and grant such extensions and indulgences in
relation to the Obligations, or release any Person liable therefor as Mortgagee
may determine without the consent of any junior lienor or encumbrancer, without
in any manner affecting the priority of the Lien and estate of this Mortgage on
or in any part of the Mortgaged Property, and without affecting the liability
of any other Person liable for any of the Obligations.


          Section
5.06 Remedies Cumulative.


                    (a)
No right or remedy herein conferred upon or
reserved to Mortgagee is intended to be exclusive of any other right or remedy,
and each and every right and remedy shall be cumulative and in addition to any
other right or remedy under this Mortgage and the other Loan Documents, or
under applicable law, whether now or hereafter existing; the failure of
Mortgagee to insist at any time upon the strict observance or performance of
any of the provisions of this Mortgage or to exercise any right or remedy
provided for herein or under applicable law, shall not impair any such right or
remedy nor be construed as a waiver or relinquishment thereof.


                    (b)
Mortgagee shall be entitled to enforce payment and performance of any of the
Obligations and to exercise all rights and powers under this Mortgage or under
any Loan Document or any laws now or hereafter in force, notwithstanding that
some or all of the Obligations may now or hereafter be otherwise secured,
whether by mortgage, deed of trust, pledge, lien, assignment or otherwise;
neither the acceptance of this Mortgage nor its enforcement, whether by court
action or pursuant to the power of sale or other powers herein contained, shall
prejudice or in any manner affect Mortgagee’s right to realize upon or enforce
any other security now or hereafter held by Mortgagee, it being stipulated that
Mortgagee shall be entitled to enforce this Mortgage, any of the Security
Documents and any other security now or hereafter held by Mortgagee in such
order and manner as Mortgagee, in its sole discretion, may determine; every
power or remedy given by the Loan Agreement, this Mortgage or any of the other
Loan Documents to Mortgagee, or to which Mortgagee is otherwise entitled, may
be exercised, concurrently or independently, from time to time and as often as
may be deemed expedient by Mortgagee, and Mortgagee may pursue inconsistent
remedies.


          Section
5.07 General Provisions.


                    (a)
Effect of Judgment. No recovery of any judgment by Mortgagee and no
levy of an execution under any judgment upon any other property of Mortgagor
shall adversely affect in any manner or to any extent the Lien of this Mortgage
upon the Mortgaged Property, or any rights, powers or remedies of Mortgagee
hereunder. Such Lien, rights, powers and remedies of Mortgagee shall continue
unimpaired as before.


                    (b)
Continuing Power of Sale. The power of sale conferred upon Mortgagee in
this Mortgage shall not be exhausted by any one or more sales as to any portion
of the Mortgaged Property or the Personal Property Collateral remaining unsold,
but shall continue unimpaired, to the fullest extent permitted by law, until
all of the Obligations are paid in full.


                    (c)
Right to Purchase. At any sale of the Mortgaged Property or the Personal
Property Collateral or any portion thereof pursuant to the provisions of this
Mortgage, Mortgagee shall have the right to purchase the Mortgaged Property (or
such portion thereof) being sold, and


-17-






in such case
shall have the right to credit against the amount of the bid made therefor (to
the extent necessary) all or any portion of the Obligations.


                    (d)
Adjournment of Sale. Mortgagee may postpone or adjourn from time to time
any sale of all or any part of the Mortgaged Property by it to be made
hereunder or by virtue hereof by announcement at the time and place appointed
for such sale or such adjourned sale or sales; and, except as otherwise
provided by any applicable provision of law, Mortgagee, without further notice
or publication, may make such sale at the time and place to which the same
shall be so postponed or adjourned, as the case may be.


                    (e)
Right to Terminate Proceedings. Mortgagee may terminate or rescind any
proceeding or other action brought in connection with its exercise of the
remedies provided in this Article 5 at any time before the conclusion
thereof, as determined in Mortgagee’s sole discretion and without prejudice to
Mortgagee.


                    (f)
No Waiver or Release. Mortgagee may resort to any remedies and the
security given by the Loan Documents, in whole or in part, and in such portions
and in such order as determined in Mortgagee’s sole discretion. No such action
shall in any way be considered a waiver of any rights, benefits or remedies
evidenced or provided by the Loan Documents. The failure of Mortgagee to
exercise any right, remedy or option provided in the Loan Documents shall not
be deemed a waiver of such right, remedy or option or of any covenant or
obligation secured by the Loan Documents. No acceptance by Mortgagee of any
payment after the occurrence of an Event of Default and no payment by Mortgagee
of any obligation for which Mortgagor is liable hereunder shall be deemed to
waive or cure any Event of Default with respect to Mortgagor, or Mortgagor’s
liability to pay such obligation. No sale of all or any portion of the
Mortgaged Property, no forbearance on the part of Mortgagee, and no extension
of time for the payment of the whole or any portion of the Obligations or any
other indulgence given by Mortgagee to Mortgagor or any other Person, shall
operate to release or in any manner affect the interest of Mortgagee in any
remaining portion of the Mortgaged Property or the liability of Mortgagor to
pay and perform the Obligations, except to the extent that such liability shall
be reduced by net proceeds actually received by Mortgagee with respect to any
portion of the Mortgaged Property. No waiver by Mortgagee shall be effective
unless it is in writing and then only to the extent specifically stated.


                    (g)
No Impairment; No Release. The interests and rights of Mortgagee under
the Loan Documents shall not be impaired by any indulgence, including (i) any
renewal, extension or modification which Mortgagee may grant with respect to
any of the Obligations; (ii) any surrender, compromise, release, renewal, extension,
exchange or substitution which Mortgagee may grant with respect to the
Mortgaged Property or any portion thereof; or (iii) any waiver, release or
indulgence granted to any maker, endorser, guarantor or surety of any of the
Obligations.


                    (h)
Waivers and Agreements Regarding Remedies. To the fullest extent
Mortgagor may legally do so, Mortgagor, for itself and for all persons
hereunder claiming through or under it or who may at any time acquire a lien on
all or any part of the Mortgaged Property or any interest therein:


-18-









	
  

 	
  

 
	
  

 	
                     (i)
 agrees that Mortgagor will not at any
 time insist upon, plead, claim or take the benefit or advantage of any laws
 now or hereafter in force providing for any appraisal or appraisement,
 valuation, stay, extension or redemption, and waives and releases all rights
 of redemption, valuation, appraisal or appraisement, stay of execution,
 extension and notice of election to accelerate or declare due the whole or
 any portion of the Obligations;

 
	
  

 	
  

 
	
  

 	
                     (ii)
 waives all rights to a marshaling of the assets of Mortgagor and others with
 interests in Mortgagor, and of the Mortgaged Property, or to a sale in
 inverse order of alienation in the event of foreclosure of the interests
 hereby created, and agrees not to assert any right under any laws pertaining
 to the marshaling of assets, the sale in inverse order of alienation,
 homestead exemption, the administration of estates of decedents, or any other
 matters whatsoever to defeat, reduce or affect the right of Mortgagee under
 the Loan Documents to a sale of the Mortgaged Property for the collection of
 the Obligations without any prior or different resort for collection, or the
 right of Mortgagee to the payment of the Obligations out of the net proceeds
 from the Mortgaged Property in preference to every other claimant whatsoever;

 
	
  

 	
  

 
	
  

 	
                     (iii)
 waives any right to bring or utilize any defense, counterclaim or setoff; provided,
 however, that if such counterclaim or setoff is based on a claim which
 could be tried in an action for money damages, the foregoing waiver shall not
 bar a separate action for such damage (unless such claim is required by law
 or applicable rules of procedure to be pleaded in or consolidated with the
 action initiated by Mortgagee), but such separate action shall not thereafter
 be consolidated with any foreclosure action of Mortgagee; and provided
 further that the bringing of such separate action for money damages shall not
 be deemed to afford any grounds for staying any such foreclosure action;

 
	
  

 	
  

 
	
  

 	
                     (iv)
 waives and relinquishes any and all rights and remedies which Mortgagor may
 have or be able to assert by reason of the provisions of any laws pertaining
 to the rights and remedies of sureties; and 

 
	
  

 	
  

 
	
  

 	
                     (v)
 waives any right which it may have to require the Mortgaged Property (or any
 part thereof) to be sold as one or more units.

 



                    (i)
Subrogation. If all or any portion of the proceeds of the Notes
or any disbursement shall be used directly or indirectly to pay off, discharge
or satisfy, in whole or in part, any prior Lien upon the Mortgaged Property or
any portion thereof, then Mortgagee shall be subrogated to, and shall have the
benefit of the priority of, such other Lien and any additional security held by
the holder thereof.


          Section
5.08 No Mortgagee-in-Possession.


                    None
of the enforcement of any of the remedies under this Article 5, the
assignment of the Leases and Rents under Article 3, the security
interests under Article 4, nor any other remedies afforded to
Mortgagee and/or the Lenders under the Loan Documents, at law or in equity
shall cause Mortgagee or any Lender to be deemed or construed to be a mortgagee
in


-19-





possession of
the Mortgaged Property, to obligate Mortgagee or any Lender to lease the
Mortgaged Property or attempt to do so, or to take any action, incur any
expense, or perform or discharge any obligation, duty or liability whatsoever
under any of the Leases or otherwise.


ARTICLE 6


MISCELLANEOUS


          Section
6.01 Release by Mortgagee.


                    Upon
the termination of the Commitments under and as defined in the Loan Agreement and the payment in full of
the Obligations, Mortgagee shall release the lien of this Mortgage, or upon the
request of Mortgagor, and, provided that Mortgagor shall pay Mortgagee’s
reasonable expenses, assign, without recourse, representation or warranty of
any kind, this Mortgage to Mortgagor’s designee, or to the person or persons
legally entitled thereto, by an instrument duly acknowledged in form for
recording.


          Section
6.02 Notices.


                    All
notices, demands, consents, requests or other communications that are permitted
or required to be given by any party to the other hereunder shall be in writing
and given in the manner specified in the Loan Agreement.


          Section
6.03 No Waiver.


                    Any
failure by Mortgagee to insist upon strict performance of any of the terms,
provisions or conditions of this Mortgage or the other Loan Documents shall not
be deemed to be a waiver of same, and Mortgagee shall have the right at any
time to insist upon strict performance of all of such terms, provisions and
conditions.


          Section
6.04 Amendments; etc.


                    This
Mortgage cannot be modified,
changed or discharged except by an agreement in writing, duly acknowledged in
form for recording, signed by Mortgagor and Mortgagee and, to the extent
provided in the Loan Agreement, the consent of the Lenders. For purposes
hereof, a statement by the Mortgagee in any modification or supplement to this
Mortgage to the effect that such modification or supplement has been consented
to by the Lenders as provided in the Loan Agreement shall be conclusive
evidence of such consent and it shall not be necessary for a copy of such
consent to be recorded with such modification or supplement as a condition to
such modification or supplement being recorded in the appropriate real estate records.


          Section
6.05 Successors and Assigns.


                    This
Mortgage applies to, inures to the benefit of and binds Mortgagor and Mortgagee
and their respective successors and assigns, as permitted under the Loan Agreement, and shall run with the
Premises.


-20-





          Section
6.06 Captions.


                    The
captions or headings at the
beginning of each Article and Section hereof are for the convenience of
reference and are not a part of this Mortgage.


          Section
6.07 Severability.


                    If
any term or provision of this Mortgage or the application thereof to any person
or circumstance shall to any extent be invalid or unenforceable, the remainder
of this Mortgage, or the application of such term or provision to persons or
circumstances other than those as to which it is invalid or unenforceable,
shall not be affected thereby, and each term and provision of this Mortgage
shall be valid and enforceable
to the maximum extent permitted by law. If any portion of the Obligations shall
for any reason not be secured by a valid and enforceable lien upon any part of
the Mortgaged Property, then any payments made in respect of the Obligations
(whether voluntary or under foreclosure or other enforcement action or procedure
or otherwise) shall, for purposes of this Mortgage (except to the extent
otherwise required by applicable law) be deemed to be made (i) first, in
respect of the portion of the Obligations not secured by the lien of this
Mortgage, (ii) second, in respect of the portion of the Obligations secured by
the lien of this Mortgage, but which lien is on less than all of the Mortgaged
Property, and (iii) last, to the portion of the Obligations secured by the lien
of this Mortgage, and which lien is on all of the Mortgaged Property.


          Section
6.08 Usury Savings Clause.


                    It
is the intention of Mortgagor, Mortgagee and the Lenders to conform strictly to
the usury and similar laws relating to interest payable on loans from time to
time in force, and all agreements between Mortgagor, Mortgagee and the Lenders,
whether now existing or hereafter arising and whether oral or written, are hereby expressly limited so that in no contingency or
event whatsoever, whether by acceleration of maturity hereof otherwise, shall
the amount paid or agreed to be paid in the aggregate to the Lenders as
interest (whether or not designated as interest, and including any amount
otherwise designated by deemed constitute interest by a court of competent
jurisdiction) hereunder or under the other Loan Documents or in any other
agreement given to secure the Obligations, or in any other document evidencing,
securing or pertaining to the Obligations, exceed the maximum amount (the “Maximum
Rate”) permissible under applicable laws. If under any circumstances
whatsoever fulfillment of any provision hereof, of the Loan Agreement or of the
other Loan Documents, at the time performance of such provisions shall be due,
shall involve exceeding the Maximum Rate, then, ipso facto, the obligation to
be fulfilled shall be reduced to the Maximum Rate. For purposes of calculating
the actual amount of interest paid and/or payable hereunder in respect of laws
pertaining to usury or such other laws, all sums paid or agreed to be paid to the
Lenders for the use, forbearance or detention of the Obligations evidenced
hereby, outstanding from time to time shall, to the extent permitted by
applicable law, be amortized, pro-rated, allocated and spread from the date of
disbursement of the proceeds of the Notes until payment in full of all of such
indebtedness, so that the actual rate of interest on account of such
Obligations is uniform through the term hereof. If under any circumstances any
Lender shall ever receive an amount which would exceed the Maximum Rate, such
amount shall be deemed a payment in reduction of the principal amount of the
Loans and shall be treated as a voluntary prepayment under the Loan Agreement
and shall be so applied in accordance with the provisions of the Loan Agreement
or if such excessive interest exceeds the Outstanding amount of the Loans and


-21-





any other Obligations, the excess shall be deemed to have been a
payment made by mistake and shall be refunded to Mortgagor.


          Section
6.09 CERTAIN
WAIVERS.


                    MORTGAGOR
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, IN CONNECTION WITH ANY
FORECLOSURE OR OTHER ACTION BROUGHT BY MORTGAGEE TO ENFORCE ITS RIGHTS AND
REMEDIES UNDER THIS MORTGAGE, ANY AND EVERY RIGHT MORTGAGOR MAY HAVE TO
(A) INTERPOSE ANY COUNTERCLAIM THEREIN, OTHER THAN A COMPULSORY
COUNTERCLAIM, AND (B) HAVE THE SAME CONSOLIDATED WITH ANY OTHER OR
SEPARATE SUIT, ACTION OR PROCEEDING. NOTHING CONTAINED IN THE IMMEDIATELY
PRECEDING SENTENCE SHALL PREVENT OR PROHIBIT THE BORROWER FROM INSTITUTING OR
MAINTAINING A SEPARATE ACTION AGAINST THE ADMINISTRATIVE AGENT OR THE LENDERS
WITH RESPECT TO ANY ASSERTED CLAIM.


          Section
6.10 GOVERNING
LAW.


                    THIS
MORTGAGE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK. 


          Section
6.11 SUBMISSION
TO JURISDICTION.


                    THE
PROVISIONS OF SECTION 12.21 OF THE LOAN AGREEMENT SHALL BE APPLICABLE TO THIS
AGREEMENT.


          Section
6.12 WAIVER
OF JURY TRIAL.


                    EACH
OF MORTGAGOR, MORTGAGEE AND THE LENDERS HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS MORTGAGE, THE NOTES,
THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY.


          Section
6.13 Attorney-In-Fact.


                    Mortgagor
hereby irrevocably appoints Mortgagee (on behalf of the Lenders) and its
successors and assigns, as its attorney-in-fact, which agency is coupled with
an interest, (a) to execute and/or record any notices of completion, cessation
of labor or any other notices that Mortgagee deems appropriate to protect
Mortgagee’s interest, if Mortgagor shall fail to do so within ten (10) days
after written request by Mortgagee, (b) upon the issuance of a deed pursuant to
the foreclosure of this Mortgage or the delivery of a deed in lieu of
foreclosure, to execute all instruments of assignment, conveyance or further
assurance with respect to the Leases, Rents, Personalty and Fixtures in favor
of the grantee of any such deed and as may be necessary or desirable for such
purpose, (c) to prepare, execute and file or record financing statements,
continuation statements, applications for registration and like papers
necessary to create, perfect


-22-





or preserve
Mortgagee’s security interests and rights in or to any of the collateral, and
(d) while any Event of Default exists, to perform any obligation of Mortgagor
hereunder; however: (i) Mortgagee shall not under any circumstances be
obligated to perform any obligation of Mortgagor; (ii) any sums advanced by
Mortgagee in such performance shall be added to and included in the Obligations
and shall bear interest at the Default Rate; (iii) Mortgagee as such attorney-in-fact
shall only be accountable for such funds as are actually received by Mortgagee;
and (iv) neither Mortgagee nor any Lender shall be liable to Mortgagor or any
other person or entity for any failure to take any action which it is empowered
to take under this Section.


          Section
6.14 New York Lien Law.


                    Pursuant
to Section 13 of the Lien Law of the State of New York, Mortgagor shall receive
the advances secured by this Mortgage 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 Premises before using any part of the total
of the same for any other purpose.


          Section
6.15 Limitation on Liability.


                    The
liability of each Mortgagor hereunder is joint and several. Notwithstanding the
foregoing, Mortgagor’s liability hereunder is subject to the limitation on
liability provisions of Section 13.1 of the Loan Agreement.


[signature page follows]


-23-







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


	
  

 	
  

 	
  

 	
  

 
	
  

 	
 ACADIA-PA
 EAST FORDHAM

 ACQUISITIONS, LLC,

 a Delaware limited liability company

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
 Name: 

 	
 Robert Masters

 
	
  

 	
  

 	
 Title:

 	
 Senior Vice
 President

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 FORDHAM
 PLACE OFFICE, LLC,

 a Delaware limited liability company

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
 Name: 

 	
 Robert
 Masters

 
	
  

 	
  

 	
 Title:

 	
 Senior Vice
 President

 













	
  

 	
  

 	
  

 	
  

 	
  

 
	
 STATE OF NEW
 YORK

 	
 )

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 )

 	
 ss.:

 	
  

 
	
 COUNTY OF
 NEW YORK

 	
  

 	
 )

 	
  

 	
  

 



                    On
the ____ day of __________, 2009, before me, the undersigned, personally
appeared __________________, personally known to me or proved to me on the
basis of satisfactory evidence to be the individual whose name is subscribed to
the within instrument, and acknowledged to me that he executed the same in his
capacity and that by his signature on the instrument the individual or the
person upon behalf of which the individual acted executed the instrument. 


	
  

 	
  

 
	

 


 	
  

 
	
 Signature
 and Office of individual

 taking acknowledgement

 	
  

 









EXHIBIT A

LEGAL DESCRIPTION OF LAND


The condominium units (the
“Units” - each a “Unit”) in the building known as The 400 E. Fordham Road
Condominium and by the street number 2502 Webster Avenue, 2504 Webster Avenue
and 400 East Fordham Road and 250 Webster Avenue, Bronx, New York (the
“Building”), designated and described as the Retail Unit and the
Office/Community Unit in that certain declaration made pursuant to Article 9-B
of the Real Property Law of the State of New York (the “Condominium Act”)
establishing a plan for condominium ownership of the Building and the land (the
“Land”) on which the Building is situated (which Land is more particularly
described below), dated October 23, 2008, and recorded in the Office of the New
York City Register, Bronx County, on December 18, 2008, under CRFN
2008000481411, as amended (the “Declaration”). The Units are also designated as
the Tax Lots 1001 (as to the Retail Unit) and 1002 (as to the Office/Community
Unit) in Block 3033 on the Tax Map of the City of New York of the County of the
Bronx on the Tax Map and on the Floor Plans of the Building, and filed with
Real Property Assessment Department on December 15, 2008 as Condominium Plan
No. 116 and also filed in the Office of the New York City Register, Bronx
County, as Condominium Map No. under CRFN 2008000481412; 


TOGETHER WITH an undivided
70.0% interest (as to the Retail Unit) and an undivided 30.0% interest (as to
the Office/Community Unit) in the Common Elements (as such term is defined in
the Declaration). 


The Land upon which the Building containing
the Units is located is described as follows: 


ALL that certain plot, piece
or parcel of land, situate, lying and being in the Borough of Bronx, City,
County and State of New York, bounded and described as follows: 


BEGINNING at a point formed
by the intersection of the easterly side of Webster Avenue (100 feet wide) with
the southerly side of East Fordham Road (a.k.a. Pelham Avenue, variable width)
and from said point of beginning running thence; the following three (3)
courses along said southerly side of East Fordham Road; 


	
  

 	
  

 	
  

 
	
  

 	
 1.

 	
 South 84 degrees 34
 minutes 46 seconds East, a distance of 43.27 feet to a point, thence;

 
	
  

 	
  

 	
  

 
	
  

 	
 2.

 	
 South 54 degrees 01
 minutes 22 seconds East, a distance of 29.77 feet to a point, thence;

 
	
  

 	
  

 	
  

 
	
  

 	
 3.

 	
 South 40 degrees 09
 minutes 32 seconds East, a distance of 85.32 feet to a point on the westerly
 side of Park Avenue (variable width). Thence;

 
	
  

 	
  

 	
  

 
	
  

 	
 4.

 	
 Along said westerly side
 of Park Avenue, South 00 degrees 10 minutes 48 seconds East, a distance of
 201.71 feet to a point, thence;

 
	
  

 	
  

 	
  

 
	
  

 	
 5.

 	
 Along the common dividing
 line between lot 12, lot 8 and lot 4 (lands now or formerly of Automotive
 Realty Corporation), block 3033, North 85 degrees 39 minutes 56 seconds West,
 a distance of 164.24 feet to a point on the aforementioned easterly side of
 Webster Avenue; thence

 
	
  

 	
  

 	
  

 
	
  

 	
 6.

 	
 Along said easterly side
 of Webster Avenue, North 08 degrees 26 minutes 11 seconds East, a distance of
 279.09 feet to the point or place of BEGINNING.

 


Exhibit A-1





EXHIBIT B


PERSONAL PROPERTY COLLATERAL


                    As
used in this Exhibit B, the term “Premises” means that certain
real property, including all improvements thereon, more particularly described
in Schedule 1 attached hereto. All capitalized terms not otherwise
defined herein shall have the meaning ascribed to such terms in that certain
Mortgage, Assignment of Leases and Rents and Security Agreement dated as of
November ___, 2009 by and from ACADIA-PA EAST
FORDHAM ACQUISITIONS, LLC and FORDHAM
PLACE OFFICE, LLC, each a limited liability company duly organized
and validly existing under the laws of the State of Delaware (“Debtor”),
in favor of EUROHYPO AG, NEW YORK BRANCH, as Administrative Agent for the
Lenders referred to therein (collectively, the “Secured Party”) (as
amended, modified, extended, split or consolidated, the “Mortgage”). 


                    (a)
All personal property in all of its forms, including, without limitation, all
goods, supplies, equipment, furniture, furnishings, fixtures, machinery,
inventory (including, without limitation, inventory as such term is defined in
the Uniform Commercial Code), raw materials, work in process and construction
materials which Debtor now or hereafter owns or in which Debtor now or
hereafter acquires an interest or right, including, without limitation, those
in which Debtor has an interest or right of any kind, those which are now or
hereafter located on or affixed to the Premises, and those in transit thereto
or in any other location, or used or useful in the operation, use or occupancy
of the Premises or the construction of any improvements thereon, including,
without limitation, all documents of title with respect to such personal
property, any interest of Debtor in and to personal property that is leased or
subject to any superior security interest, all books, records, ledger cards,
leases, other documents of whatever kind or character, relating to the
Premises; 


                    (b)
All computer programs, tapes, disks, and related data processing software
(owned by Debtor or in which it has an interest) that at any time evidence or
contain information relating to the Premises or to Debtor’s business thereon; 


                    (c)
All fees, income, rents, issues, profits, earnings, receipts, royalties and
revenues which, after the date hereof and while any portion of the indebtedness
secured hereby remains unpaid, may accrue to Debtor from such goods, fixtures,
furnishings, equipment and building materials or any part thereof located on
the Premises, or which may be received or receivable by Debtor from any hiring,
using, letting, leasing, subhiring, subletting, or subleasing of the Premises; 


                    (d)
All of Debtor’s present and future rights and claims to receive payments of
money, utility deposits, services or property relating to the Premises,
including, without limitation, rights to all deposits from tenants of the
Premises, rights to receive payment with respect to media and advertising
agreements and sponsorships, amounts payable on account of the sale of
interests in Debtor, accounts receivable, deposit or other accounts (including,
without limitation, deposit accounts maintained with Secured Party; and
accounts as that term is defined in the Uniform Commercial Code), chattel
paper, notes, drafts, contract rights, rights to performance, instruments
(including, without limitation, instruments as such term is defined in the
Uniform Commercial Code), general intangibles, principal, interest and payments
due on 


Exhibit B-1





account of
goods sold, services rendered, loans made or credit extended, guaranties,
letters of credit, documents, drafts, acceptances, and tax refunds, together
with title or interest in all documents evidencing or securing the same, and
judgments taken on any rights or claims which now or hereafter relate to, are
derived from or used in connection with the Premises or the ownership,
construction, use, operation, maintenance, occupancy or enjoyment thereof or
the conduct of business or activities therefrom; 


                    (e)
All of Debtor’s rights and interests in all other general intangibles including
all payment intangibles (as the foregoing terms are defined in the Uniform
Commercial Code) and Debtor’s rights and interest relating to the Premises or
the construction, development, use or operation thereof, or used in connection
therewith, including but not limited to all governmental permits relating to
construction or other activities on the Premises, all names under or by which
the Premises may at any time be operated or known, all rights to carry on
business under any such names, or any variant thereof, all trade names,
trademarks and franchises relating in any way to the Premises, all patents and
copyrights of Debtor relating in any way to the Premises, all good will in any
way relating to the Premises, all licenses and permits relating in any way to,
or to the operation of, the Premises, all contract rights, all options, all
purchase orders, all manufacturers’ warranties with respect to improvements,
all construction contracts, all maintenance contracts, and all of Debtor’s
claims and rights arising under or pursuant to Section 365 of the Bankruptcy
Code, 11 U.S.C. § 365; 


                    (f)
All of Debtor’s rights under all warranties, guaranties or insurance policies
(whether or not Secured Party is the loss payee thereunder) covering the
Premises or any of the aforesaid collateral, and all proceeds, loss payments
and premium refunds payable regarding the same; 


                    (g)
All of Debtor’s rights and interests in reserves, deferred payments, deposits,
refunds, cost savings and payments of any kind relating to the construction of
any improvements on the Premises; 


                    (h)
All of Debtor’s rights and interests in all causes of action, claims
compensation and recoveries for any damage to or condemnation or taking of the
Premises or the aforesaid collateral, or for any conveyance in lieu thereof,
whether direct or consequential, or for any damage or injury to the Premises or
the aforesaid collateral, or for any loss or diminution in value of the
Premises or the aforesaid collateral; 


                    (i)
All architectural, structural, mechanical and engineering plans and
specifications prepared for construction of improvements or extraction of
minerals or gravel from the Premises and all studies, data and drawings related
thereto; and also all contracts and agreements relating to the aforesaid plans
and specifications or to the aforesaid studies, data and drawings or to the
construction of improvements on or extraction of minerals or gravel from the
Premises; 


                    (j)
All sums on deposit with the Secured Party for any reason whatsoever pursuant
to the terms and provisions of the Mortgage to be recorded in the office of the
County Recorder of New York County, State of New York simultaneously with the
filing of financing statements with respect to the collateral described above;
and 


Exhibit B-2





                    (k)
All proceeds, products, offspring, rents, profits, income, benefits,
accessions, substitutions and replacements from sale, collection, exchange or
other disposition of the aforesaid collateral, whether such disposition is
voluntary or involuntary. 


Exhibit B-3





SCHEDULE 1

LEGAL DESCRIPTION OF LAND


The condominium units (the
“Units” - each a “Unit”) in the building known as The 400 E. Fordham Road
Condominium and by the street number 2502 Webster Avenue, 2504 Webster Avenue
and 400 East Fordham Road and 250 Webster Avenue, Bronx, New York (the
“Building”), designated and described as the Retail Unit and the
Office/Community Unit in that certain declaration made pursuant to Article 9-B
of the Real Property Law of the State of New York (the “Condominium Act”)
establishing a plan for condominium ownership of the Building and the land (the
“Land”) on which the Building is situated (which Land is more particularly
described below), dated October 23, 2008, and recorded in the Office of the New
York City Register, Bronx County, on December 18, 2008, under CRFN
2008000481411, as amended (the “Declaration”). The Units are also designated as
the Tax Lots 1001 (as to the Retail Unit) and 1002 (as to the Office/Community
Unit) in Block 3033 on the Tax Map of the City of New York of the County of the
Bronx on the Tax Map and on the Floor Plans of the Building, and filed with
Real Property Assessment Department on December 15, 2008 as Condominium Plan
No. 116 and also filed in the Office of the New York City Register, Bronx
County, as Condominium Map No. under CRFN 2008000481412; 


TOGETHER WITH an undivided
70.0% interest (as to the Retail Unit) and an undivided 30.0% interest (as to
the Office/Community Unit) in the Common Elements (as such term is defined in
the Declaration). 


The Land upon which the Building containing
the Units is located is described as follows: 


ALL that certain plot, piece
or parcel of land, situate, lying and being in the Borough of Bronx, City,
County and State of New York, bounded and described as follows: 


BEGINNING at a point formed
by the intersection of the easterly side of Webster Avenue (100 feet wide) with
the southerly side of East Fordham Road (a.k.a. Pelham Avenue, variable width)
and from said point of beginning running thence; the following three (3)
courses along said southerly side of East Fordham Road; 


	
  

 	
  

 	
  

 
	
  

 	
 1.

 	
 South 84 degrees 34
 minutes 46 seconds East, a distance of 43.27 feet to a point, thence;

 
	
  

 	
  

 	
  

 
	
  

 	
 2.

 	
 South 54 degrees 01
 minutes 22 seconds East, a distance of 29.77 feet to a point, thence;

 
	
  

 	
  

 	
  

 
	
  

 	
 3.

 	
 South 40 degrees 09
 minutes 32 seconds East, a distance of 85.32 feet to a point on the westerly
 side of Park Avenue (variable width). Thence;

 
	
  

 	
  

 	
  

 
	
  

 	
 4.

 	
 Along said westerly side
 of Park Avenue, South 00 degrees 10 minutes 48 seconds East, a distance of
 201.71 feet to a point, thence;

 
	
  

 	
  

 	
  

 
	
  

 	
 5.

 	
 Along the common dividing
 line between lot 12, lot 8 and lot 4 (lands now or formerly of Automotive
 Realty Corporation), block 3033, North 85 degrees 39 minutes 56 seconds West,
 a distance of 164.24 feet to a point on the aforementioned easterly side of
 Webster Avenue; thence

 
	
  

 	
  

 	
  

 
	
  

 	
 6.

 	
 Along said easterly side
 of Webster Avenue, North 08 degrees 26 minutes 11 seconds East, a distance of
 279.09 feet to the point or place of BEGINNING.

 


Schedule 1-1







R&B Draft 10/29/09


THIS REPLACEMENT NOTE AMENDS, RESTATES AND
REPLACES IN ITS ENTIRETY THAT CERTAIN (I) ACQUISTION LOAN NOTE FROM ACADIA-PA
EAST FORDHAM ACQUISITIONS, LLC AND FORDHAM PLACE OFFICE LLC TO AMALGAMATED BANK
DATED NOVEMBER 16, 2007 IN THE ORIGINAL PRINCIPAL AMOUNT OF $3,778,734.12, (II)
BUILDING LOAN NOTE FROM ACADIA-PA EAST FORDHAM ACQUISITIONS, LLC AND FORDHAM
PLACE OFFICE LLC TO AMALGAMATED BANK DATED NOVEMBER 16, 2007 IN THE ORIGINAL
PRINCIPAL AMOUNT OF $15,815,942.69 AND (III) PROJECT LOAN NOTE FROM ACADIA-PA
EAST FORDHAM ACQUISITIONS, LLC AND FORDHAM PLACE OFFICE LLC TO AMALGAMATED BANK
DATED NOVEMBER 16, 2007 IN THE ORIGINAL PRINCIPAL AMOUNT OF $405,323.19.


REPLACEMENT NOTE


	
  

 	
  

 
	
 $18,051,400.00

 	
 November ___, 2009

 
	
  

 	
 New York, New York

 



          FOR
VALUE RECEIVED, ACADIA-PA EAST FORDHAM ACQUISITIONS, LLC and FORDHAM PLACE
OFFICE LLC, each a Delaware limited liability company (“Borrower”), hereby
promises to pay to AMALGAMATED BANK (the “Lender”), for account of its
respective Applicable Lending Offices provided for by the Agreement referred to
below, at the principal office of Eurohypo AG, New York Branch, at 1114 Avenue
of the Americas, 2nd Floor, New York, New York 10036, the principal
sum of Eighteen Million Fifty-One Thousand Four Hundred and 00/100 Dollars
($18,051,400.00) (or such lesser amount as shall equal the aggregate unpaid
principal amount of the Loans made by the Lender to Borrower under the
Agreement), in lawful money of the United States of America and in immediately
available funds, on the dates and in the principal amounts provided in the
Agreement, and to pay interest on the unpaid principal amount of each such
Loan, at such office, in like money and funds, for the period commencing on the
date of such Loan until such Loan shall be paid in full, at the rates per annum
and on the dates provided in the Agreement.


          The
date, amount, Type, interest rate and duration of Interest Period (if
applicable) of each Loan made by the Lender to Borrower, and each payment made
on account of the principal thereof, shall be recorded by the Lender on its
books and, prior to any transfer of this Note, endorsed by the Lender on the
schedule attached hereto or any continuation thereof, provided that the failure
of the Lender to make any such recordation or endorsement shall not affect the
obligations of Borrower to make a payment when due of any amount owing under
the Agreement or hereunder in respect of the Loans made by the Lender.


          This
Note is one of the Notes referred to in the Consolidated, Amended and Restated
Term Loan Agreement dated as of the date hereof (as modified, supplemented,
extended and in effect from time to time, the “Agreement”) between
Borrower, the lenders party thereto (including the Lender) and Eurohypo AG, New
York Branch, as Administrative Agent, and evidences Loans made by the Lender
thereunder, and is issued pursuant to that certain Note Consolidation,
Severance and Modification Agreement between said parties dated as of the date
hereof as one of the four replacement notes described therein. Terms used but
not defined in this Note have the respective meanings assigned to them in the
Agreement.





          The
Agreement provides for the acceleration of the maturity of this Note upon the
occurrence of certain events and for prepayments of Loans upon the terms and
conditions specified therein.


          Except
as expressly permitted by Section 12.24 of the Agreement, this Note may
not be assigned by the Lender to any other Person.


          This
Note shall be governed by, and construed in accordance with, the law of the
State of New York without regard to conflicts of laws principles other than
Section 5-1401 of the General Obligations Law of the State of New York.


[Remainder of page intentionally left blank]


2





                    Executed
as of the date first written above.


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 ACADIA-PA
 EAST FORDHAM ACQUISITIONS, LLC, 

 a Delaware limited liability company

 
	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
 Acadia-P/A
 Holding Company, LLC, a Delaware

 
	
  

 	
  

 	
 limited
 liability company, its sole member

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 By: 

 	
 Acadia
 Strategic Opportunity Fund II, LLC, a

 
	
  

 	
  

 	
  

 	
 Delaware
 limited liability company, its managing

 member

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 By: 

 	
 Acadia
 Realty Acquisition II, LLC, a

 
	
  

 	
  

 	
  

 	
  

 	
 Delaware
 limited liability company, its 

 managing member

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
 By: 

 	
 Acadia Realty
 Limited Partnership, a

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 Delaware
 limited partnership, its sole 

 member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 By: 

 	
 Acadia
 Realty Trust, a Maryland

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 real estate
 investment trust, its

 general partner

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 By: 

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	

 


 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 Name: 

 	
 Robert
 Masters

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 Title:

 	
 Senior Vice
 President-

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 General
 Counsel

 













	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 FORDHAM
 PLACE OFFICE LLC, a Delaware limited
liability company

 
	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
 Acadia-P/A
 Holding Company, LLC, a Delaware

 
	
  

 	
  

 	
 limited
 liability company, its sole member

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 By: 

 	
 Acadia
 Strategic Opportunity Fund II, LLC, a

 
	
  

 	
  

 	
  

 	
 Delaware
 limited liability company, its managing
member

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 By: 

 	
 Acadia
 Realty Acquisition II, LLC, a 

 Delaware limited liability company, its 

 managing member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
 By: 

 	
 Acadia
 Realty Limited Partnership, a 

 Delaware limited partnership, its sole
member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 By: 

 	
 Acadia
 Realty Trust, a Maryland 

 real estate investment trust, its 

 general partner

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 By: 

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	

 


 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 Name: 

 	
 Robert
 Masters

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 Title:

 	
 Senior Vice
 President-

 General Counsel

 











R&B Draft 10/29/09


THIS REPLACEMENT NOTE AMENDS, RESTATES AND REPLACES IN ITS ENTIRETY THAT CERTAIN (I) ACQUISTION LOAN NOTE FROM ACADIA-PA EAST FORDHAM
ACQUISITIONS, LLC AND FORDHAM PLACE OFFICE LLC TO DEUTSCHE GENOSSENSCHAFTS - HYPOTHEKENBANK AG DATED NOVEMBER 16, 2007 IN THE
ORIGINAL PRINCIPAL AMOUNT OF $4,251,075.89,  (II) BUILDING LOAN NOTE FROM ACADIA-PA EAST FORDHAM ACQUISITIONS, LLC AND FORDHAM PLACE
OFFICE LLC TO DEUTSCHE GENOSSENSCHAFTS - HYPOTHEKENBANK AG DATED NOVEMBER 16, 2007 IN THE ORIGINAL PRINCIPAL AMOUNT OF $17,792,935.52
AND (III) PROJECT LOAN NOTE FROM ACADIA-PA EAST FORDHAM ACQUISITIONS, LLC AND FORDHAM PLACE OFFICE LLC TO DEUTSCHE GENOSSENSCHAFTS -
HYPOTHEKENBANK AG DATED NOVEMBER 16, 2007 IN THE ORIGINAL PRINCIPAL AMOUNT OF $455,988.59.


REPLACEMENT NOTE


	
  

 	
  

 
	
 $20,313,200.00

 	
 November ___, 2009

 
	
  

 	
 New York, New York

 



          FOR VALUE RECEIVED, ACADIA-PA EAST FORDHAM ACQUISITIONS, LLC and FORDHAM PLACE OFFICE LLC, each a Delaware limited liability company
(“Borrower”), hereby promises to pay to DEUTSCHE GENOSSENSCHAFTS - HYPOTHEKENBANK AG (the “Lender”), for account of its respective
Applicable Lending Offices provided for by the Agreement referred to below, at the principal office of Eurohypo AG, New York Branch,
at 1114 Avenue of the Americas, 2nd Floor, New York, New York 10036, the principal sum of Twenty Million Three Hundred Thirteen
Thousand Two Hundred and 00/100 Dollars ($20,313,200.00) (or such lesser amount as shall equal the aggregate unpaid principal amount
of the Loans made by the Lender to Borrower under the Agreement), in lawful money of the United States of America and in immediately
available funds, on the dates and in the principal amounts provided in the Agreement, and to pay interest on the unpaid principal
amount of each such Loan, at such office, in like money and funds, for the period commencing on the date of such Loan until such Loan
shall be paid in full, at the rates per annum and on the dates provided in the Agreement.


          The
date, amount, Type, interest rate and duration of Interest Period (if
applicable) of each Loan made by the Lender to Borrower, and each payment made
on account of the principal thereof, shall be recorded by the Lender on its
books and, prior to any transfer of this Note, endorsed by the Lender on the
schedule attached hereto or any continuation thereof, provided that the failure
of the Lender to make any such recordation or endorsement shall not affect the
obligations of Borrower to make a payment when due of any amount owing under
the Agreement or hereunder in respect of the Loans made by the Lender.


          This
Note is one of the Notes referred to in the Consolidated, Amended and Restated
Term Loan Agreement dated as of the date hereof (as modified, supplemented,
extended and in effect from time to time, the “Agreement”) between
Borrower, the lenders party thereto (including the Lender) and Eurohypo AG, New
York Branch, as Administrative Agent, and evidences Loans made by the Lender
thereunder, and is issued pursuant to that certain Note







Consolidation,
Severance and Modification Agreement between said parties dated as of the date
hereof as one of the four replacement notes described therein. Terms used but
not defined in this Note have the respective meanings assigned to them in the
Agreement.



          The
Agreement provides for the acceleration of the maturity of this Note upon the
occurrence of certain events and for prepayments of Loans upon the terms and
conditions specified therein.


          Except
as expressly permitted by Section 12.24 of the Agreement, this Note may
not be assigned by the Lender to any other Person.


          This
Note shall be governed by, and construed in accordance with, the law of the
State of New York without regard to conflicts of laws principles other than
Section 5-1401 of the General Obligations Law of the State of New York.


[Remainder of page intentionally left blank]


2





                    Executed
as of the date first written above.


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 ACADIA-PA
 EAST FORDHAM ACQUISITIONS, LLC, 

 a Delaware limited liability company

 
	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
 Acadia-P/A
 Holding Company, LLC, a Delaware

 
	
  

 	
  

 	
 limited
 liability company, its sole member

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 By: 

 	
 Acadia
 Strategic Opportunity Fund II, LLC, a

 
	
  

 	
  

 	
  

 	
 Delaware
 limited liability company, its managing

 member

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 By: 

 	
 Acadia
 Realty Acquisition II, LLC, a

 
	
  

 	
  

 	
  

 	
  

 	
 Delaware
 limited liability company, its 

 managing member

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
 By: 

 	
 Acadia Realty
 Limited Partnership, a

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 Delaware
 limited partnership, its sole 

 member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 By: 

 	
 Acadia
 Realty Trust, a Maryland

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 real estate
 investment trust, its

 general partner

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 By: 

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	

 


 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 Name: 

 	
 Robert
 Masters

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 Title:

 	
 Senior Vice
 President-

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 General
 Counsel

 













	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 FORDHAM
 PLACE OFFICE LLC, a Delaware limited
liability company

 
	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
 Acadia-P/A
 Holding Company, LLC, a Delaware

 
	
  

 	
  

 	
 limited
 liability company, its sole member

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 By: 

 	
 Acadia
 Strategic Opportunity Fund II, LLC, a

 
	
  

 	
  

 	
  

 	
 Delaware
 limited liability company, its managing
member

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 By: 

 	
 Acadia
 Realty Acquisition II, LLC, a 

 Delaware limited liability company, its 

 managing member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
 By: 

 	
 Acadia
 Realty Limited Partnership, a 

 Delaware limited partnership, its sole
member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 By: 

 	
 Acadia
 Realty Trust, a Maryland 

 real estate investment trust, its 

 general partner

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 By: 

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	

 


 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 Name: 

 	
 Robert
 Masters

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 Title:

 	
 Senior Vice
 President-

 General Counsel

 












THIS  REPLACEMENT  NOTE AMENDS,  RESTATES AND REPLACES IN ITS ENTIRETY THAT CERTAIN (I) AMENDED AND RESTATED  ACQUISTION LOAN NOTE FROM
ACADIA-PA  EAST FORDHAM  ACQUISITIONS,  LLC AND FORDHAM PLACE OFFICE LLC TO EUROHYPO AG, NEW YORK BRANCH DATED NOVEMBER 16, 2007 IN THE
ORIGINAL  PRINCIPAL AMOUNT OF  $4,302,088.81,  (II) AMENDED AND RESTATED  BUILDING LOAN NOTE FROM ACADIA-PA EAST FORDHAM  ACQUISITIONS,
LLC AND FORDHAM  PLACE  OFFICE LLC TO  EUROHYPO  AG, NEW YORK BRANCH  DATED  NOVEMBER  16,  2007 IN THE  ORIGINAL  PRINCIPAL  AMOUNT OF
$18,006,450.75,  (III) AMENDED AND RESTATED  PROJECT LOAN NOTE FROM ACADIA-PA EAST FORDHAM  ACQUISITIONS,  LLC AND FORDHAM PLACE OFFICE
LLC TO EUROHYPO AG, NEW YORK BRANCH DATED NOVEMBER 16, 2007 IN THE ORIGINAL  PRINCIPAL  AMOUNT OF $461,460.44,  (IV)  ACQUISITION  LOAN
NOTE FROM  ACADIA-PA  EAST FORDHAM  ACQUISITIONS,  LLC AND FORDHAM PLACE OFFICE LLC TO EUROHYPO AG, NEW YORK BRANCH DATED  NOVEMBER 16,
2007 IN THE ORIGINAL  PRINCIPAL  AMOUNT OF  $2,834,050.59,  (V) BUILDING LOAN NOTE FROM  ACADIA-PA EAST FORDHAM  ACQUISITIONS,  LLC AND
FORDHAM PLACE OFFICE LLC TO EUROHYPO AG, NEW YORK BRANCH DATED  NOVEMBER 16, 2007 IN THE ORIGINAL  PRINCIPAL  AMOUNT OF  $11,861,957.02
AND (VI) PROJECT LOAN NOTE FROM ACADIA-PA EAST FORDHAM  ACQUISITIONS,  LLC AND FORDHAM PLACE OFFICE LLC TO EUROHYPO AG, NEW YORK BRANCH
DATED NOVEMBER 16, 2007 IN THE ORIGINAL PRINCIPAL AMOUNT OF $303,992.39.


REPLACEMENT NOTE


	
  

 	
  

 
	
 $34,099,000.00

 	
 November ___, 2009

 
	
  

 	
 New York, New York

 



          FOR VALUE RECEIVED, ACADIA-PA EAST FORDHAM ACQUISITIONS, LLC and FORDHAM PLACE OFFICE LLC, each a Delaware limited liability company
(“Borrower”), hereby promises to pay to EUROHYPO AG, NEW YORK BRANCH (the “Lender”), for account of its respective Applicable Lending
Offices provided for by the Agreement referred to below, at the principal office of Eurohypo AG, New York Branch, at 1114 Avenue of
the Americas, 2nd Floor, New York, New York 10036, the principal sum of Thirty-Four Million Ninety-Nine Thousand and 00/100 Dollars
($34,099,000.00) (or such lesser amount as shall equal the aggregate unpaid principal amount of the Loans made by the Lender to
Borrower under the Agreement), in lawful money of the United States of America and in immediately available funds, on the dates and
in the principal amounts provided in the Agreement, and to pay interest on the unpaid principal amount of each such Loan, at such
office, in like money and funds, for the period commencing on the date of such Loan until such Loan shall be paid in full, at the
rates per annum and on the dates provided in the Agreement.  


          The
date, amount, Type, interest rate and duration of Interest Period (if
applicable) of each Loan made by the Lender to Borrower, and each payment made
on account of the principal thereof, shall be recorded by the Lender on its
books and, prior to any transfer of this Note, endorsed by the Lender on the
schedule attached hereto or any continuation thereof, provided that the failure
of the Lender to make any such recordation or endorsement shall not affect the
obligations of Borrower to make a payment when due of any amount owing under
the Agreement or hereunder in respect of the Loans made by the Lender.






          This
Note is one of the Notes referred to in the Consolidated, Amended and Restated
Term Loan Agreement dated as of the date hereof (as modified, supplemented,
extended and in effect from time to time, the “Agreement”) between
Borrower, the lenders party thereto (including the Lender) and Eurohypo AG, New
York Branch, as Administrative Agent, and evidences Loans made by the Lender
thereunder, and is issued pursuant to that certain Note Consolidation,
Severance and Modification Agreement between said parties dated as of the date
hereof as one of the four replacement notes described therein. Terms used but
not defined in this Note have the respective meanings assigned to them in the
Agreement.



          The
Agreement provides for the acceleration of the maturity of this Note upon the
occurrence of certain events and for prepayments of Loans upon the terms and
conditions specified therein.


          Except
as expressly permitted by Section 12.24 of the Agreement, this Note may
not be assigned by the Lender to any other Person.


          This
Note shall be governed by, and construed in accordance with, the law of the
State of New York without regard to conflicts of laws principles other than
Section 5-1401 of the General Obligations Law of the State of New York.


          As long as a Hedge Agreement with the Eurohypo Counterparty is in effect, the interest payable under this Note shall be increased or
decreased from time to time in accordance with such Hedge Agreement.  Therefore, this Note also evidences such amounts as may become
due and payable by Borrower under the Hedge Agreement with the Eurohypo Counterparty, including, without limitation, any amount
payable upon or in connection with termination of such Hedge Agreement, all of which sums shall be deemed to constitute “Additional
Interest” evidenced hereby and payable pursuant to this Note and in accordance with the terms and provisions of the Hedge Agreement
with a Eurohypo Counterparty.



[Remainder of page intentionally left blank]


2





                    Executed
as of the date first written above.


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 ACADIA-PA
 EAST FORDHAM ACQUISITIONS, LLC, 

 a Delaware limited liability company

 
	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
 Acadia-P/A
 Holding Company, LLC, a Delaware

 
	
  

 	
  

 	
 limited
 liability company, its sole member

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 By: 

 	
 Acadia
 Strategic Opportunity Fund II, LLC, a

 
	
  

 	
  

 	
  

 	
 Delaware
 limited liability company, its managing

 member

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 By: 

 	
 Acadia
 Realty Acquisition II, LLC, a

 
	
  

 	
  

 	
  

 	
  

 	
 Delaware
 limited liability company, its 

 managing member

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
 By: 

 	
 Acadia Realty
 Limited Partnership, a

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 Delaware
 limited partnership, its sole 

 member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 By: 

 	
 Acadia
 Realty Trust, a Maryland

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 real estate
 investment trust, its

 general partner

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 By: 

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	

 


 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 Name: 

 	
 Robert
 Masters

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 Title:

 	
 Senior Vice
 President-

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 General
 Counsel

 













	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 FORDHAM
 PLACE OFFICE LLC, a Delaware limited liability company

 
	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
 Acadia-P/A
 Holding Company, LLC, a Delaware

 
	
  

 	
  

 	
 limited
 liability company, its sole member

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 By: 

 	
 Acadia
 Strategic Opportunity Fund II, LLC, a

 
	
  

 	
  

 	
  

 	
 Delaware
 limited liability company, its managing member

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 By: 

 	
 Acadia
 Realty Acquisition II, LLC, a 

 Delaware limited liability company, its 

 managing member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
 By: 

 	
 Acadia
 Realty Limited Partnership, a 

 Delaware limited partnership, its sole member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 By: 

 	
 Acadia
 Realty Trust, a Maryland 

 real estate investment trust, its 

 general partner

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 By: 

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	

 


 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 Name: 

 	
 Robert
 Masters

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 Title:

 	
 Senior Vice
 President-

 General Counsel

 











R&B Draft 10/29/09


THIS REPLACEMENT NOTE AMENDS, RESTATES AND REPLACES IN ITS ENTIRETY THAT CERTAIN (I) ACQUISTION LOAN NOTE FROM ACADIA-PA EAST FORDHAM
ACQUISITIONS, LLC AND FORDHAM PLACE OFFICE LLC TO EUROHYPO AG, NEW YORK BRANCH DATED NOVEMBER 16, 2007 IN THE ORIGINAL PRINCIPAL
AMOUNT OF $2,834,050.59, WITH AN ALLONGE ENDORSEMENT DATED NOVEMBER 20, 2009 IN THE ORIGINAL PRINCIPAL AMOUNT OF $2,834,050.59 MADE
PAYABLE TO COMMERCE BANK, N.A.  (II) BUILDING LOAN NOTE FROM ACADIA-PA EAST FORDHAM ACQUISITIONS, LLC AND FORDHAM PLACE OFFICE LLC TO
EUROHYPO AG, NEW YORK BRANCH DATED NOVEMBER 16, 2007 IN THE ORIGINAL PRINCIPAL AMOUNT OF $11,861,957.02, WITH AN ALLONGE ENDORSEMENT
DATED NOVEMBER 20, 2009 IN THE ORIGINAL PRINCIPAL AMOUNT OF $11,861,957.02 MADE PAYABLE TO COMMERCE BANK, N.A. AND (III) PROJECT LOAN
NOTE FROM ACADIA-PA EAST FORDHAM ACQUISITIONS, LLC AND FORDHAM PLACE OFFICE LLC TO EUROHYPO AG, NEW YORK BRANCH DATED NOVEMBER 16,
2007 IN THE ORIGINAL PRINCIPAL AMOUNT OF $303,992.39, WITH AN ALLONGE ENDORSEMENT DATED NOVEMBER 20, 2009 IN THE ORIGINAL PRINCIPAL
AMOUNT OF $303,992.39 MADE PAYABLE TO COMMERCE BANK, N.A. .


REPLACEMENT NOTE


	
  

 	
  

 
	
 $13,536,400.00

 	
 November ___, 2009

 
	
  

 	
 New York, New York

 



          FOR VALUE RECEIVED, ACADIA-PA EAST FORDHAM ACQUISITIONS, LLC and FORDHAM PLACE OFFICE LLC, each a Delaware limited liability company
(“Borrower”), hereby promises to pay to TD BANK, as successor-in-interest to Commerce Bank, N.A. (the “Lender”), for account of its
respective Applicable Lending Offices provided for by the Agreement referred to below, at the principal office of Eurohypo AG, New
York Branch, at 1114 Avenue of the Americas, 2nd Floor, New York, New York 10036, the principal sum of Thirteen Million Five Hundred
Thirty-Six Thousand Four Hundred and 00/100 Dollars ($13,536,400.00) (or such lesser amount as shall equal the aggregate unpaid
principal amount of the Loans made by the Lender to Borrower under the Agreement), in lawful money of the United States of America
and in immediately available funds, on the dates and in the principal amounts provided in the Agreement, and to pay interest on the
unpaid principal amount of each such Loan, at such office, in like money and funds, for the period commencing on the date of such
Loan until such Loan shall be paid in full, at the rates per annum and on the dates provided in the Agreement.  


          The
date, amount, Type, interest rate and duration of Interest Period (if
applicable) of each Loan made by the Lender to Borrower, and each payment made
on account of the principal thereof, shall be recorded by the Lender on its
books and, prior to any transfer of this Note, endorsed by the Lender on the
schedule attached hereto or any continuation thereof, provided that the failure
of the Lender to make any such recordation or endorsement shall not affect the
obligations of Borrower to make a payment when due of any amount owing under
the Agreement or hereunder in respect of the Loans made by the Lender.


          This
Note is one of the Notes referred to in the Consolidated, Amended and Restated
Term Loan Agreement dated as of the date hereof (as modified, supplemented,
extended and in 







effect from time to time, the “Agreement”) between
Borrower, the lenders party thereto (including the Lender) and Eurohypo AG, New
York Branch, as Administrative Agent, and evidences Loans made by the Lender
thereunder, and is issued pursuant to that certain Note Consolidation,
Severance and Modification Agreement between said parties dated as of the date
hereof as one of the four replacement notes described therein. Terms used but
not defined in this Note have the respective meanings assigned to them in the
Agreement.



          The
Agreement provides for the acceleration of the maturity of this Note upon the
occurrence of certain events and for prepayments of Loans upon the terms and
conditions specified therein.


          Except
as expressly permitted by Section 12.24 of the Agreement, this Note may
not be assigned by the Lender to any other Person.


          This
Note shall be governed by, and construed in accordance with, the law of the
State of New York without regard to conflicts of laws principles other than
Section 5-1401 of the General Obligations Law of the State of New York.


[Remainder of page intentionally left blank]


2





                    Executed
as of the date first written above.


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 ACADIA-PA
 EAST FORDHAM ACQUISITIONS, LLC, 

 a Delaware limited liability company

 
	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
 Acadia-P/A
 Holding Company, LLC, a Delaware

 
	
  

 	
  

 	
 limited
 liability company, its sole member

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 By: 

 	
 Acadia
 Strategic Opportunity Fund II, LLC, a

 
	
  

 	
  

 	
  

 	
 Delaware
 limited liability company, its managing

 member

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 By: 

 	
 Acadia
 Realty Acquisition II, LLC, a

 
	
  

 	
  

 	
  

 	
  

 	
 Delaware
 limited liability company, its 

 managing member

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
 By: 

 	
 Acadia Realty
 Limited Partnership, a

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 Delaware
 limited partnership, its sole 

 member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 By: 

 	
 Acadia
 Realty Trust, a Maryland

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 real estate
 investment trust, its

 general partner

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 By: 

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	

 


 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 Name: 

 	
 Robert
 Masters

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 Title:

 	
 Senior Vice
 President-

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 General
 Counsel

 













	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 FORDHAM
 PLACE OFFICE LLC, a Delaware limited
liability company

 
	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
 Acadia-P/A
 Holding Company, LLC, a Delaware

 
	
  

 	
  

 	
 limited
 liability company, its sole member

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 By: 

 	
 Acadia
 Strategic Opportunity Fund II, LLC, a

 
	
  

 	
  

 	
  

 	
 Delaware
 limited liability company, its managing member

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
 By: 

 	
 Acadia
 Realty Acquisition II, LLC, a 

 Delaware limited liability company, its 

 managing member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
 By: 

 	
 Acadia
 Realty Limited Partnership, a 

 Delaware limited partnership, its sole member

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 By: 

 	
 Acadia
 Realty Trust, a Maryland 

 real estate investment trust, its 

 general partner

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 By: 

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	

 


 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 Name: 

 	
 Robert
 Masters

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
 Title:

 	
 Senior Vice
 President-

 General Counsel