Exhibit 10.22


AMENDED AND RESTATED

REVOLVING SECURED CREDIT AND GUARANTY AGREEMENT


 


among


 


SL GREEN OPERATING PARTNERSHIP, L. P.,


 


As Borrower,


 


SL GREEN REALTY CORP.


 


AND ITS SUBSIDIARIES PARTY HERETO,


 


As Guarantors,


 


THE LENDERS PARTY HERETO,


 


As Lenders,


 


FLEET NATIONAL BANK,


 


As Administrative Agent for the Lenders


 


and As Collateral Agent for the Secured Parties,


 


WACHOVIA BANK NATIONAL ASSOCIATION,


 


As Syndication Agent for the Lenders,


 


SOVEREIGN BANK,


 


As Documentation Agent for the Lenders


 


FLEET SECURITIES, INC. and


WACHOVIA CAPITAL MARKETS LLC,


 


As Co-Arrangers


 


 


Effective Date: December 16, 2003


 

















 


TABLE OF CONTENTS


 


	
  §1.

  	
  DEFINITIONS AND RULES
  OF INTERPRETATION

  	
   

  
	
  §1.1.

  	
  Definitions.

  	
   

  
	
  §1.2.

  	
  Rules
  of Interpretation.

  	
   

  
	
   

  	
   

  	
   

  
	
  §2.

  	
  REVOLVING SECURED
  CREDIT FACILITY

  	
   

  
	
  §2.1.

  	
  Commitment
  to Lend; Limitation on Total Commitment.

  	
   

  
	
  §2.2.

  	
  Changes in Total
  Commitment.

  	
   

  
	
  §2.3.

  	
  The Notes.

  	
   

  
	
  §2.4.

  	
  Interest on
  Loans.

  	
   

  
	
  §2.5.

  	
  Requests
  for Loans.

  	
   

  
	
  §2.6.

  	
  Conversion
  Options.

  	
   

  
	
  §2.7.

  	
  Funds for Loans.

  	
   

  
	
   

  	
   

  	
   

  
	
  §3.

  	
  REPAYMENT OF THE LOANS

  	
   

  
	
  §3.1.

  	
  Maturity.

  	
   

  
	
  §3.2.

  	
  Mandatory Repayments of
  Loan.

  	
   

  
	
  §3.3.

  	
  Optional Repayments of
  Loans.

  	
   

  
	
   

  	
   

  	
   

  
	
  §4.

  	
  CERTAIN GENERAL PROVISIONS

  	
   

  
	
  §4.2.

  	
  Commitment Fee.

  	
   

  
	
  §4.3.

  	
  Funds for
  Payments.

  	
   

  
	
  §4.4.

  	
  Computations.

  	
   

  
	
  §4.5.

  	
  Additional
  Costs, Etc.

  	
   

  
	
  §4.6.

  	
  Capital Adequacy.

  	
   

  
	
  §4.7.

  	
  Certificate.

  	
   

  
	
  §4.8.

  	
  Indemnity.

  	
   

  
	
  §4.9.

  	
  Interest on Overdue Amounts.

  	
   

  
	
  §4.10.

  	
  Inability to
  Determine LIBOR Rate.

  	
   

  
	
  §4.11.

  	
  Illegality.

  	
   

  
	
  §4.12.

  	
  Replacement
  of Lenders.

  	
   

  
	
   

  	
   

  	
   

  
	
  §5.

  	
  STRUCTURED FINANCE
  COLLATERAL ASSETS; NO LIMITATION ON RECOURSE

  	
   

  
	
   

  	
   

  	
   

  
	
  §5.1.

  	
  Structured
  Finance Collateral Assets.

  	
   

  
	
  §5.2.

  	
  Waivers by Requisite
  Lenders.

  	
   

  
	
  §5.3.

  	
  Rejection
  of Structured Finance Collateral Assets.

  	
   

  
	
  §5.4.

  	
  Change
  in Circumstances.

  	
   

  
	
  §5.5.

  	
  No
  Limitation on Recourse.

  	
   

  
	
  §5.6.

  	
  Additional
  Guarantors.

  	
   

  
	
   

  	
   

  	
   

  
	
  §6.

  	
  REPRESENTATIONS AND
  WARRANTIES.

  	
   

  
	
  §6.1.

  	
  Authority; Etc.

  	
   

  
	
  §6.2.

  	
  Governmental
  Approvals.

  	
   

  



 


i

















 


	
  §6.3.

  	
  Title to
  Properties.

  	
   

  
	
  §6.4.

  	
  Financial
  Statements.

  	
   

  
	
  §6.5.

  	
  No
  Material Changes, Etc.

  	
   

  
	
  §6.6.

  	
  Franchises, Patents,
  Copyrights, Etc.

  	
   

  
	
  §6.7.

  	
  Litigation.

  	
   

  
	
  §6.8.

  	
  No Materially Adverse
  Contracts, Etc.

  	
   

  
	
  §6.9.

  	
  Compliance With Other
  Instruments, Laws, Etc.

  	
   

  
	
  §6.10.

  	
  Tax Status.

  	
   

  
	
  §6.11.

  	
  Event
  of Default. No Default or Event of Default has occurred and is continuing
  hereunder.

  	
   

  
	
  §6.12.

  	
  Investment
  Company Act.

  	
   

  
	
  §6.13.

  	
  Absence of Financing
  Statements, Etc.

  	
   

  
	
  §6.14.

  	
  Status
  of the Company.

  	
   

  
	
  §6.15.

  	
  Certain
  Transactions.

  	
   

  
	
  §6.16.

  	
  Benefit Plans;
  Multiemployer Plans; Guaranteed Pension Plans.

  	
   

  
	
  §6.17.

  	
  Regulations
  U and X.

  	
   

  
	
  §6.18.

  	
  Environmental Compliance.

  	
   

  
	
  §6.19.

  	
  Subsidiaries and
  Affiliates.

  	
   

  
	
  §6.20.

  	
  Loan Documents.

  	
   

  
	
  §6.22.

  	
  Indebtedness.

  	
   

  
	
   

  	
   

  	
   

  
	
  §7.

  	
  AFFIRMATIVE
  COVENANTS OF THE BORROWER.

  	
   

  
	
  §7.1.

  	
  Punctual
  Payment.

  	
   

  
	
  §7.2.

  	
  Maintenance
  of Office.

  	
   

  
	
  §7.3.

  	
  Records
  and Accounts.

  	
   

  
	
  §7.4.

  	
  Financial
  Statements, Certificates and Information.

  	
   

  
	
  §7.5.

  	
  Notices.

  	
   

  
	
  §7.6.

  	
  Existence; Maintenance
  of REIT Status; Maintenance of Properties.

  	
   

  
	
  §7.7.

  	
  Insurance.

  	
   

  
	
  §7.8.

  	
  Taxes.

  	
   

  
	
  §7.9.

  	
  Inspection of
  Properties and Books.

  	
   

  
	
  §7.10.

  	
  Compliance
  with Laws, Contracts, Licenses, and Permits.

  	
   

  
	
  §7.11.

  	
  Use of
  Proceeds.

  	
   

  
	
  §7.13.

  	
  Notices of
  Significant Transactions.

  	
   

  
	
  §7.14.

  	
  Further
  Assurance.

  	
   

  
	
  §7.15.

  	
  Environmental
  Indemnification.

  	
   

  
	
  §7.16.

  	
  Response
  Actions.

  	
   

  
	
  §7.17.

  	
  Employee
  Benefit Plans.

  	
   

  
	
  §7.18.

  	
  Required Interest
  Rate Contracts.

  	
   

  
	
  §7.19.

  	
  Forward Equity Contracts.

  	
   

  
	
  §7.21.

  	
  Other
  Facilities

  	
   

  
	
   

  	
   

  	
   

  
	
  §8.

  	
  CERTAIN NEGATIVE
  COVENANTS OF THE BORROWER.

  	
   

  
	
  §8.1

  	
  [Intentionally
  Omitted].

  	
   

  
	
  §8.2.

  	
  Restrictions on
  Investments.

  	
   

  
	
  §8.3.

  	
  Merger, Consolidation and Other Fundamental
  Changes.

  	
   

  



 


ii

















 


	
  §8.4.

  	
  Sale of
  Collateral.

  	
   

  
	
  §8.5.

  	
  Compliance with
  Environmental Laws.

  	
   

  
	
  §8.6.

  	
  Distributions.

  	
   

  
	
  §8.7.

  	
  Preferred
  Distributions.

  	
   

  
	
  §8.8.

  	
  Preferred
  Redemptions.

  	
   

  
	
   

  	
   

  	
   

  
	
  §9.

  	
  FINANCIAL
  COVENANTS OF THE BORROWER.

  	
   

  
	
  §9.2.

  	
  Minimum Debt Service
  Coverage.

  	
   

  
	
  §9.3.

  	
  Total Debt to Total Assets.

  	
   

  
	
  §9.4.

  	
  Minimum Tangible Net Worth.

  	
   

  
	
  §9.5.

  	
  Adjusted EBITDA to
  Fixed Charges.

  	
   

  
	
  §9.6.

  	
  Aggregate
  Occupancy Rate .

  	
   

  
	
  §9.7.

  	
  Value of All
  Unencumbered Assets

  	
   

  
	
  §9.9.

  	
  Amendments and
  Modifications to §9.

  	
   

  
	
   

  	
   

  	
   

  
	
  §10.

  	
  CONDITIONS TO
  EFFECTIVENESS.

  	
   

  
	
  §10.1.

  	
  Loan Documents.

  	
   

  
	
  §10.2.

  	
  Certified
  Copies of Organization Documents; Good Standing Certificates .

  	
   

  
	
  §10.3.

  	
  By-laws;
  Resolutions.

  	
   

  
	
  §10.4.

  	
  Incumbency
  Certificate; Authorized Signers.

  	
   

  
	
  §10.5.

  	
  Title Insurance; Lien
  Searches.

  	
   

  
	
  §10.6.

  	
  Opinions
  of Counsel Concerning Organization, Loan Documents and Collateral.

  	
   

  
	
  §10.7.

  	
  Payment of
  Fees.

  	
   

  
	
  §10.8.

  	
  Existing
  Agreement.

  	
   

  
	
   

  	
   

  	
   

  
	
  §11.

  	
  CONDITIONS TO ALL
  CREDIT ADVANCES.

  	
   

  
	
  §11.1.

  	
  Representations
  True; No Event of Default; Compliance Certificate.

  	
   

  
	
  §11.2.

  	
  No Legal
  Impediment.

  	
   

  
	
  §11.3.

  	
  Proceedings and Documents.

  	
   

  
	
   

  	
   

  	
   

  
	
  §12.

  	
  EVENTS OF DEFAULT;
  ACCELERATION; ETC

  	
   

  
	
  §12.1.

  	
  Events of Default
  and Acceleration.

  	
   

  
	
  §12.2.

  	
  Termination of Commitments.

  	
   

  
	
  §12.3.

  	
  Remedies.

  	
   

  
	
  §12.4.

  	
  Distribution of
  Enforcement Proceeds.

  	
   

  
	
   

  	
   

  	
   

  
	
  §13.

  	
  SETOFF.

  	
   

  
	
   

  	
   

  	
   

  
	
  §14.

  	
  THE AGENT

  	
   

  
	
  §14.1.

  	
  Authorization.

  	
   

  
	
  §14.2.

  	
  Employees
  and Agents.

  	
   

  
	
  §14.3.

  	
  No
  Liability to Lenders.

  	
   

  
	
  §14.4.

  	
  No
  Representations.

  	
   

  
	
  §14.5.

  	
  Payments.

  	
   

  
	
  §14.6.

  	
  Holders of
  Notes.

  	
   

  



 


iii

















 


	
  §14.7.

  	
  Indemnity.

  	
   

  
	
  §14.8.

  	
  Agent as
  Lender.

  	
   

  
	
  §14.9.

  	
  Resignation.

  	
   

  
	
  §14.10.

  	
  Notification
  of Defaults and Events of Default and other Notices.

  	
   

  
	
  §14.11.

  	
  Duties in the Case
  of Enforcement.

  	
   

  
	
  §14.12.

  	
  Mandatory Resignation
  of Agent.

  	
   

  
	
  §14.13.

  	
  Matters
  as to Borrower.

  	
   

  
	
  §14.14.

  	
  Concerning
  the Collateral and the Collateral Documents.

  	
   

  
	
   

  	
   

  	
   

  
	
  §16.

  	
  INDEMNIFICATION.

  	
   

  
	
   

  	
   

  	
   

  
	
  §17.

  	
  SURVIVAL
  OF COVENANTS, ETC.

  	
   

  
	
   

  	
   

  	
   

  
	
  §18.

  	
  GUARANTY.

  	
   

  
	
  §18.1.

  	
  Guaranty.

  	
   

  
	
  §18.2.

  	
  Obligations Unconditional.

  	
   

  
	
  §18.3.

  	
  Modifications.

  	
   

  
	
  §18.4.

  	
  Waiver of
  Rights.

  	
   

  
	
  §18.5.

  	
  Reinstatement.

  	
   

  
	
  §18.6.

  	
  Remedies.

  	
   

  
	
  §18.7.

  	
  Limitation
  of Guaranty.

  	
   

  
	
  §18.8.

  	
  Release
  of Guaranty.

  	
   

  
	
   

  	
   

  	
   

  
	
  §19.

  	
  ASSIGNMENT;
  PARTICIPATIONS; ETC.

  	
   

  
	
  §19.1.

  	
  Conditions to
  Assignment by Lenders.

  	
   

  
	
  §19.2.

  	
  Certain
  Representations and Warranties; Limitations; Covenants.

  	
   

  
	
  §19.3

  	
  Register.

  	
   

  
	
  §19.4.

  	
  New Notes.

  	
   

  
	
  §19.5.

  	
  Participations.

  	
   

  
	
  §19.6.

  	
  Pledge by
  Lender.

  	
   

  
	
  §19.7.

  	
  No Assignment by Borrower.

  	
   

  
	
  §19.8.

  	
  Disclosure.

  	
   

  
	
   

  	
   

  	
   

  
	
  §22.

  	
  HEADINGS.

  	
   

  
	
   

  	
   

  	
   

  
	
  §23.

  	
  COUNTERPARTS.

  	
   

  
	
   

  	
   

  	
   

  
	
  §24.

  	
  ENTIRE
  AGREEMENT.

  	
   

  
	
   

  	
   

  	
   

  
	
  §25. 

  	
  WAIVER OF JURY TRIAL
  AND CERTAIN DAMAGE CLAIMS. 

  	
   

  
	
   

  	
   

  	
   

  
	
  §26.

  	
  CONSENTS, AMENDMENTS,
  WAIVERS, ETC.

  	
   

  
	
   

  	
   

  	
   

  
	
  §27.

  	
  SEVERABILITY.

  	
   

  
	
   

  	
   

  	
   

  
	
  §28.

  	
  ACKNOWLEDGMENTS.

  	
   

  



 


iv

















 


	
  §29.

  	
  CONSENT
  TO AMENDMENT AND RESTATEMENT; TRANSITIONAL ARRANGEMENTS.

  	
   

  
	
   

  	
   

  	
   

  
	
  §29.1.

  	
  Existing Credit
  Agreement Superseded.

  	
   

  
	
  §29.3.

  	
  Interest
  and Fees under the Existing Agreement.

  	
   

  



 


v

















 


	
  Exhibit
  A

  	
   

  	
  Form
  of Note

  
	
  Exhibit B

  	
   

  	
  Form of Loan
  Request

  
	
  Exhibit C

  	
   

  	
  Form of
  Compliance Certificate

  
	
  Exhibit
  D

  	
   

  	
  Form
  of Amended and Restated Pledge and Security Agreement

  
	
  Exhibit E

  	
   

  	
  Form of
  Assignment and Acceptance

  
	
   

  	
   

  	
   

  
	
  Schedule 1

  	
   

  	
  Lenders; Domestic and LIBOR Lending Offices

  
	
  Schedule
  1.1

  	
   

  	
  Structured
  Finance Collateral Assets

  
	
  Schedule 1.2

  	
   

  	
  Commitments
  and Commitment Percentages

  
	
  Schedule 1.3

  	
   

  	
  Related
  Companies, Unconsolidated Entities and Guarantors

  
	
  Schedule
  1.4.

  	
   

  	
  [INTENTIONALLY
  OMITTED]

  
	
  Schedule
  6.3

  	
   

  	
  Title
  to Properties

  
	
  Schedule
  6.7

  	
   

  	
  Litigation

  
	
  Schedule
  6.15

  	
   

  	
  Insider
  Transactions

  
	
  Schedule
  6.16

  	
   

  	
  Employee
  Benefit Plans

  
	
  Schedule
  6.18

  	
   

  	
  Environmental
  Matters

  
	
  Schedule
  6.19

  	
   

  	
  Company
  Assets

  
	
  Schedule
  6.21

  	
   

  	
  Building
  Structural Defects, etc.

  
	
  Schedule
  6.22

  	
   

  	
  Indebtedness

  
	
  Schedule
  8.2(d)

  	
   

  	
  Investments

  
	
  Schedule
  8.2(h)

  	
   

  	
  As-Is Value
  Capitalization Rates

  



 


vi

















 


CREDIT AGREEMENT


 


This AMENDED
AND RESTATED REVOLVING SECURED CREDIT AND GUARANTY AGREEMENT is made as of
the     16th day of December,
2003, by and among (i) SL GREEN OPERATING PARTNERSHIP, L.P., a Delaware limited
partnership (the “Borrower”), (ii) SL GREEN REALTY CORP., a Maryland
corporation (the “Company”, and a “Guarantor”, as such term is defined herein),
(iii) each of the direct and indirect Subsidiaries of the Borrower or the
Company that is a signatory hereto under the caption “Guarantors” on the
signature pages hereto or from time to time hereafter as a “Guarantor”, (iv)
each of the financial institutions that is a signatory hereto under the caption
“Lenders” on the signature pages hereto or that, pursuant to §19 hereof, shall
become a “Lender” (individually, a “Lender” and, collectively, the
“Lenders”),  (v) FLEET NATIONAL BANK,  a national banking association, as administrative
agent for the Lenders hereunder and as collateral agent for the Secured Parties
under the Collateral Documents (in such capacities, the “Agent”), (vi) WACHOVIA
BANK NATIONAL ASSOCIATION (f/k/a FIRST UNION NATIONAL BANK), as syndication
agent for the Lenders hereunder, and (vii) SOVEREIGN BANK, as documentation
agent for the Lenders hereunder.


 


WHEREAS,
pursuant to that certain Revolving Secured Credit and Guaranty Agreement, dated
as of December 20, 2001, among the Borrower, the Guarantors signatory thereto
(the “Existing Guarantors”), the lenders signatory thereto (the “Existing
Lenders”), Fleet National Bank, as administrative agent, First Union National
Bank (n/k/a Wachovia Bank National Association), as syndication agent, and
Sovereign Bank, as documentation agent (as amended from time to time, the
“Existing Credit Agreement”), the Existing Lenders have agreed to make
available to the Borrower secured revolving loans in an aggregate amount not to
exceed $75,000,000; and


 


WHEREAS, the
parties hereto wish to amend and restate the Existing Credit Agreement to,
among other things, extend the maturity of the facility and substitute the
Lenders for the Existing Lenders as Lenders under this Agreement;


 


NOW,
THEREFORE, to accomplish these purposes, the Agent, the Borrower, the
Guarantors and the Lenders hereby agree that the Existing Credit Agreement
shall be and hereby is amended and restated in its entirety, as follows:


 


§1.                                DEFINITIONS AND RULES OF INTERPRETATION


 


§1.1.                       Definitions. 
The following terms shall have the meanings set forth in
this §l or elsewhere in the provisions of this Agreement referred to below:


 


Adjusted
EBITDA.  For any Person for any period,
EBITDA minus (i) the aggregate Minimum Capital Expenditure Reserves for all
Real Estate Assets for such period and (ii) straight line rent adjustments for
the applicable period.


 


Adjusted Net
Operating Income.  For any Real Estate
Asset,  as of any date of determination,
Net Operating Income for the three (3) month period immediately preceding the


 

















 


date of determination,  minus Minimum Capital Expenditures Reserves
for such Real Estate Asset for such period, and minus the Minimum Management
Fees for such Real Estate Asset for such period; provided, however, that for
any Real Estate Asset acquired less than three (3) months prior to such date of
determination, such Real Estate Asset’s Net Operating Income shall be its pro
forma Net Operating Income (as approved by the Agent) for the entire fiscal
quarter in which acquired.


 


Adjusted
Unsecured Debt.  The sum of Unsecured
Indebtedness plus any Obligations outstanding, whether principal, interest,
fees or otherwise.


 


Adjusted
Unencumbered Asset Value.  When
determined as of the end of any fiscal quarter, the sum of (i) the Value of all
Unencumbered Assets plus (ii) 75% of the aggregate amount of Structured Finance
Collateral Asset Values for all Structured Finance Collateral Assets.


 


Affiliated
Lenders.  Any commercial bank or
financial institution which is (i) the parent corporation of any of the
Lenders, (ii) a wholly-owned subsidiary of any of the Lenders or (iii) a
wholly-owned subsidiary of the parent corporation of any of the Lenders.


 


Agent.  Fleet National Bank acting in its capacities
as sole administrative agent for the Lenders and as collateral agent for the
Secured Parties pursuant to the Collateral Documents, or any sole successor
administrative agent and collateral agent appointed pursuant to §14 hereof.


 


Agent’s Head
Office.  The Agent’s head office located
at 100 Federal Street, Boston, Massachusetts 02110, or at such other location
in the United States as the Agent may designate from time to time.


 


Aggregate
Occupancy Rate.  With respect to the
Unencumbered Assets at any time, the ratio, as of such date, expressed as a
percentage, of  (i) the summation of the
amounts arrived at by multiplying (a) the Occupancy Rate of each Unencumbered
Asset by (b) the net rentable area of such Unencumbered Asset, divided by (ii)
the aggregate net rentable area of all such Unencumbered Assets.


 


Agreement.
This Amended and Restated Revolving Secured Credit and Guaranty Agreement,
including the Schedules and Exhibits hereto.


 


Applicable
LIBOR Margin. One hundred forty (140) basis points.


 


As-Is
Value.  For any Real Estate Asset set
forth on Schedule 8.2(h) (as such Schedule shall be amended or
supplemented from time to time), the “as-is” value of such Real Estate Asset as
determined by a FIRREA compliant MAI appraisal supplied by Borrower which is
less than one year old from the date of such determination and which is
acceptable to the Agent and the Borrower; provided, however, that for any Real
Estate Asset for which no such appraisal is available, “As-Is Value” shall be
the value determined by dividing the Adjusted Net Operating Income for the
immediately preceding fiscal quarter, annualized, for such Real Estate Asset by
the capitalization rate (which shall in no event exceed 9.0%) set forth for
such Real Estate Asset on Schedule 8.2(h) (as such Schedule shall be
amended or supplemented from time to time).


 


2

















 


Assignment and
Acceptance. See §19.


 


Bankruptcy
Code.  Title 11 of the United States
Code, 11 U.S.C. §§ 1101 et seq., as the same may be amended from time to time.


 


Base Rate. The
higher of (a) the annual rate of interest announced from time to time by Fleet
National Bank (“Fleet”) at Fleet’s Head Office as its “base rate”, and (b) one
half of one percent (1⁄2%) above the overnight federal funds effective rate as
published by the Board of Governors of the Federal Reserve System, as in effect
from time to time.


 


Base Rate
Loans.  Those Loans bearing interest
calculated by reference to the Base Rate.


 


Borrower.  As defined in the preamble hereto.


 


Borrowing
Date.  The date on which any Loan is
made or is to be made, and the date on which any Loan is converted or continued
in accordance with §2.6.


 


Buildings.  The buildings, structures and other
improvements now or hereafter located on the Unencumbered Assets.


 


Business
Day.  Any day on which banking institutions
in Boston, Massachusetts, are open for the transaction of banking business and,
in the case of LIBOR Rate Loans, also a day which is a Eurodollar Business Day.


 


Capitalized
Leases.  Leases under which the
discounted future rental payment obligations are required to be capitalized on
the balance sheet of the Borrower in accordance with Generally Accepted
Accounting Principles.


 


CERCLA. See
§6.18.


 


Co-Arrangers. 
Fleet Securities, Inc. and Wachovia Securities, Inc. or any of the
respective successors thereto.


 


Code.  The Internal Revenue Code of 1986, as
amended and in effect from time to time.


 


Collateral.  “Collateral” as defined in the Pledge and
Security Agreement, or as such term is defined in any other Collateral
Document.


 


Collateral
Documents.  The Pledge and Security
Agreement and any other documents executed and delivered by the Borrower or a
Guarantor granting a lien on its property to secure payment of the Obligations.


 


Commitment.  With respect to each Lender, the amount set
forth from time to time on Schedule 1.2 hereto as the amount of such Lender’s
commitment to make Loans to the Borrower.


 


Commitment
Percentage.  With respect to each
Lender, the percentage set forth from time to time on Schedule 1.2 hereto as
such Lender’s percentage of the Total Commitment.


 


Company. As
defined in the preamble hereto.


 


3

















 


Compliance
Certificate.  See §2.5(a).


 


Conversion
Request.  A notice given by the Borrower
to the Agent of its election to convert or continue a Loan in accordance with
§2.6.


 


Default.  See §12.1.


 


Delinquent
Lender.  See §14.5(c).


 


Distribution.  The declaration or payment of any dividend
or distribution of cash or cash equivalents to the holders of common shares of
beneficial interest in the Company or the holders of common units of limited
partnership interest in the Borrower, or any distribution to any officer,
employee or director of the Borrower or the Company, other than employee
compensation.


 


Dollars or
$.  Lawful currency of the United States
of America.


 


Domestic
Lending Office.  Initially, the office
of each Lender designated as such in Schedule 1 hereto; thereafter, such
other office of such Lender, if any, located within the United States that will
be making or maintaining Base Rate Loans.


 


EBITDA.  With respect to any Person for any period,
earnings (or losses) before interest and taxes of such Person and its
Subsidiaries for such period plus, to the extent deducted in computing such
earnings (or losses) before interest (including, without limitation, the
interest portion of payments made under Capitalized Leases) and taxes,
depreciation and amortization expense and other non-cash charges, all as
determined on a consolidated basis with respect to such Person and its
Subsidiaries in accordance with Generally Accepted Accounting Principles;
provided, however, EBITDA shall exclude earnings or losses resulting from (i)
cumulative changes in accounting practices, (ii) discontinued operations
(except as noted below), (iii) extraordinary items, (iv) net income or net
losses of any entity acquired in a pooling of interest transaction for the
period prior to the acquisition, (v) net income or net losses, before
depreciation and amortization, of a Subsidiary that is unavailable to such Person,
(vi) net income or net losses not readily convertible into Dollars or
remittable to the United States, (vii) gains and losses from the sale of
assets, and (viii) net income or net losses, before depreciation and
amortization,  from corporations, partnerships,
associations, joint ventures or other entities in which such Person or any
Subsidiary or consolidated entity thereof has a minority interest and in which
none of such Person or any Subsidiary or consolidated entity thereof has
control, except to the extent actually received, provided, however,
that EBITDA shall include earnings and losses from any Real Estate Asset which
has been identified for sale and would otherwise qualify as a discontinued
operation under Generally Accepted Accounting Principles, until sold or
otherwise disposed of.


 


Effective Date. 
The date upon which this Agreement shall become effective pursuant to
§10.  Unless the Agent notifies the
Borrower and the Lenders on the date hereof that some other date is the
Effective Date, the Effective Date shall be the date set forth on the first
page of this Agreement.


 


4

















 


Eligible
Assignee.  Any of (a) a commercial bank
organized under the laws of the United States, or any State thereof or the
District of Columbia, and having total assets in excess of $5,000,000,000; (b)
a savings and loan association or savings bank organized under the laws of the
United States, or any State thereof or the District of Columbia, and having a
net worth of at least $100,000,000, calculated in accordance with Generally
Accepted Accounting Principles; (c) a commercial bank organized under the laws
of any other country which is a member of the Organization for Economic
Cooperation and Development (the “OECD”), and having total assets in excess of
$5,000,000,000, 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 the OECD; (d) the central bank of any country which is a
member of the OECD; (e) a finance company, insurance company or other financial
institution (whether a corporation, partnership, trust or other entity) that is
engaged in making, purchasing or otherwise investing in commercial loans in the
ordinary course of its business and having total assets in excess of
$5,000,000,000, and (f) any Lender or Affiliated Lender.  Notwithstanding anything to the contrary,
the term Eligible Assignee shall exclude any Person controlling, controlled by
or under common control with, the Borrower or the Company.


 


Employee
Benefit Plan.  Any employee benefit plan
within the meaning of §3 (3) of ERISA currently maintained or contributed to by
the Borrower or any Guarantor or any ERISA Affiliate, other than a
Multiemployer Plan.


 


Environmental
Laws.  See §6.18(a).


 


ERISA.  The Employee Retirement Income Security Act
of 1974, as amended and in effect from time to time.


 


ERISA
Affiliate.  Any Person which is treated
as a single employer with the Borrower under §414(b) or (c)  of the Code.


 


ERISA Event. 
Any of the following:


 


(i)
a “reportable event” within the meaning of Section 4043 of ERISA and the
regulations issued thereunder with respect to any Guaranteed Pension Plan
(excluding those for which the provision for 30-day notice to the PBGC
has been waived by regulation),


 


(ii)
the failure to meet the minimum funding standard of Section 412 of the Code
with respect to any Guaranteed Pension Plan (whether or not waived in
accordance with Section 412(d) of the Code) or the failure to make by its due
date a required installment under Section 412 (m) of the Code with respect to
any Guaranteed Pension Plan or the failure to make by its due date any required
contribution to a Multiemployer Plan,


 


(iii)
the provision by the administrator of any Guaranteed Pension Plan pursuant to
Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a
distress termination described in Section 4041(c) of ERISA,


 


(iv)
the withdrawal by the Borrower or any Guarantor or any of their ERISA Affiliates
from any Guaranteed Pension Plan with two or more contributing sponsors or


 


5

















 


the termination of any such Guaranteed Pension
Plan resulting in liability pursuant to Section 4063 or 4064 of ERISA in excess
of $5,000,000.00,


 


(v)
the institution by the PBGC of proceedings to terminate any Guaranteed Pension
Plan, or the occurrence of any event or condition which might reasonably be
expected to constitute grounds under ERISA for the involuntary termination of,
or the appointment of a trustee to administer, any Guaranteed Pension Plan,


 


(vi)
the imposition of liability on the Borrower or any Guarantor or any of their
ERISA Affiliates in excess of $5,000,000.00 pursuant to Section 4062(e) or 4069
of ERISA or by reason of the application of Section 4212(c) of ERISA,


 


(vii)
the withdrawal by the Borrower or any Guarantor or any of their ERISA
Affiliates in a complete or partial withdrawal (within the meaning of Section
4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential
liability therefor in excess of $5,000,000.00, or the receipt by the Borrower
or any Guarantor or any of their ERISA Affiliates of notice from any
Multiemployer Plan that it is in reorganization or insolvency pursuant to
Section 4241 or 4245 of ERISA, or that it intends to terminate or has
terminated under Section 4041A or 4042 of ERISA, if such event could reasonably
be expected to result in liability being imposed on Borrower or any of its
ERISA Affiliates in excess of $5,000,000.00,


 


(viii)
the occurrence of an act or omission which could give rise to the imposition on
the Borrower or any Guarantor or any of their ERISA Affiliates of fines,
penalties, taxes or related charges under Chapter 43 of the Code or under Section
409 or 502(c), (i) or (1) or 4071 of ERISA in excess of $5,000,000 in respect
of any Employee Benefit Plan,


 


(ix)
the assertion of a material claim (other than routine claims for benefits)
against any Employee Benefit Plan other than a Multiemployer Plan or the assets
thereof, or against the Borrower or any Guarantor or any of their ERISA
Affiliates in connection with any such Employee Benefit Plan,


 


(x)
receipt from the Internal Revenue Service of notice of the failure of any
Pension Plan (or any other Benefit Plan intended to be qualified under Section
401(a) of the Code) to qualify under Section 401(a) of the Code, or the failure
of any trust forming part of any Guaranteed Pension Plan to qualify for
exemption from taxation under Section 501(a) of the Code, or


 


(xi)
the imposition of a Lien pursuant to Section 401(a)(29) or 412(n) of the Code
or pursuant to ERISA with respect to any Guaranteed Pension Plan.


 


Eurocurrency
Reserve Rate.  For any day with respect
to a LIBOR Rate Loan, the maximum rate (expressed as a decimal) at which any of
the Lenders would be required to maintain reserves under Regulation D of the
Board of Governors of the Federal Reserve System (or any successor or similar
regulations relating to such reserve requirements) against “Eurocurrency
Liabilities” (as that term is used in Regulation D) , if such liabilities were


 


6

















 


outstanding. The Eurocurrency
Reserve Rate shall be adjusted automatically on and as of the effective date of
any change in the Eurocurrency Reserve Rate.


 


Eurodollar
Business Day.  Any day on which
commercial banks are open for international business (including dealings in
Dollar deposits) in London or such other eurodollar interbank market as may be
selected by the Agent in its sole discretion acting in good faith.


 


Event
of Default.  See §12.1.


 


Existing
Credit Agreement.  As defined in the
recitals thereto.


 


Facility.  The secured revolving line of credit
facility provided to the Borrower pursuant to this Agreement.


 


Fixed
Charges.  With respect to any fiscal
period of any Person, an amount equal to the sum of (i) Interest Expense, (ii)
regularly scheduled installments of principal payable with respect to all
Indebtedness of such Person, other than balloon payments of principal at
maturity, (iii) scheduled cash lease payments or obligations with respect to
Capitalized Leases of such Person plus (iv) in the cases of the Company and the
Borrower, all dividend payments due to the holders of any preferred shares of beneficial
interest of the Company and all distributions due to the holders of any
preferred limited partnership interests in the Borrower.


 


Fixed Rate
Prepayment Fee.  See §3.3.


 


Forward Purchase Contract.  With
respect to any Person, a purchase agreement entered into by such Person for the
fee or leasehold purchase of an office property to be constructed.


 


Funds From
Operations.  Consolidated net income
(loss) of the Company and its Subsidiaries before extraordinary items, computed
in accordance with Generally Accepted Accounting Principles, plus, to the
extent deducted in determining net income (loss) and without duplication, (i)
gains (or losses) from debt restructuring and sales of property (or adjustments
to basis of properties or other assets), (ii) non-recurring charges, (iii)
provisions for losses, (iv) real estate related depreciation, amortization and
other non-cash charges (excluding amortization of financing costs), and (v)
amortization of organizational expenses minus, to the extent included in net
income (loss) and without duplication, (a) non-recurring income (loss) and (b)
equity income (loss) from unconsolidated partnerships and joint ventures less
the proportionate share of Funds From Operations of such partnerships and joint
ventures, which adjustments shall be calculated on a consistent basis.


 


Generally
Accepted Accounting Principles. 
Principles that are (a) consistent with the principles promulgated or
adopted by the Financial Accounting Standards Board and its predecessors, as in
effect from time to time and (b) consistently applied with past financial
statements of the Person in question adopting the same principles; provided
that a certified public accountant would, insofar as the use of such accounting
principles is pertinent, be in a position to deliver an unqualified opinion
(other than a qualification regarding changes in Generally Accepted Accounting
Principles) as to financial statements in which such principles have been
properly applied.


 


7

















 


Ground
Lease.  A ground lease granting a
leasehold interest in land and/or the improvements thereon.


 


Guaranteed
Pension Plan. Any employee pension benefit plan within the meaning of §3(2) of
ERISA maintained or contributed to by the Borrower, any Guarantor or any ERISA
Affiliate the benefits of which are guaranteed on termination in full or in
part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer
Plan.


 


Guaranteed Obligations.  Collectively,


 


(i)                                     the
payment, as and when due, or by stated maturity, acceleration, or otherwise, of
the Notes and all other amounts due and payable under the other Loan Documents
to the Agent and the Lenders at such times and in the manner provided for in
the Loan Documents, including interest accruing from and after the date of the
commencement of a bankruptcy case against the Borrower or a Guarantor, and


 


(ii)                                  the
payment of all other obligations of the Borrower under the Loan Documents that
can be performed by the payment of monies, either to the Agent and the Lenders
directly or by reimbursement of advances by them, including, without
limitation, the payment of income and other taxes by the Borrower.


 


Guarantor.
Each of the Company, any direct or indirect Subsidiary of the Borrower or the
Company owning any interest in a Structured Finance Collateral Asset, and any
other Subsidiaries of the Borrower or the Company  which execute and deliver this Agreement as a Guarantor.


 


Guaranty. See
§18.1.


 


Hazardous
Materials. See §6.18(a).


 


Indebtedness.  For any Person, without duplication, (i)(a) all indebtedness of such Person for
borrowed money and (b) all obligations of such Person to pay a deferred
purchase price for property or services, including, but not limited to,
obligations under Forward Purchase Contracts, having met all conditions of
repayment thereof but for the passage of time, (ii) all indebtedness of
such Person evidenced by a note, bond, debenture or similar instrument, (iii)
the outstanding undrawn amount of all letters of credit issued for the account
or upon the application of such Person and, without duplication, all
unreimbursed amounts drawn thereunder, (iv) all indebtedness of any other
person or entity secured by any Lien on any property owned by such Person,
whether or not such indebtedness has been assumed, (v) indebtedness of others
guaranteed by such Person (including, without limitation, indebtedness of a
partnership for which such Person, if a general partner, would be liable as a
matter of law or contractually), but only to the extent of the specific amount
guaranteed as a matter of contract or law, provided that for purposes of this
definition the term “guarantee” shall not include the guarantee of customary
non-recourse carve-outs (including, but not limited to, claims for fraud, misrepresentation,
or environmental law violations), (vi) all payment obligations of such Person
under any Interest Rate Contracts and currency swaps and similar agreements, to
the extent such liabilities are material and are reported or are required under
Generally Accepted Accounting Principles to be reported by such Person in its
financial statements, (vii) all indebtedness and liabilities of such


 


8

















 


Person secured by any Lien or
mortgage on any property of such Person, whether or not the same would be
classified as a liability on a balance sheet, (viii) the liability of such
Person in respect of banker’s acceptances and the estimated liability under any
participating mortgage, convertible mortgage or similar arrangement, (ix) the
aggregate principal amount of rentals or other consideration payable by such
Person in accordance with Generally Accepted Accounting Principles over the
remaining unexpired term of all Capitalized Leases of such Person, (x) all outstanding
monetary judgments or decrees by a court or courts of competent jurisdiction
entered against such Person, (xi) all convertible debt and subordinated debt
owed by such Person, (xii) all preferred partnership interests and preferred
stock issued by such Person that, in either case, are redeemable prior to the
Maturity Date for cash on a mandatory basis, a cash equivalent, a note
receivable or similar instrument or are convertible prior to the Maturity Date
on a mandatory basis to Indebtedness as defined herein, (xiii) all customary
trade payables and accrued expenses more than sixty (60) days past due, (xiv)
expected amortization of tenant costs and leasing commissions over such
Person’s next twelve succeeding fiscal months, and (xv) all obligations,
liabilities, reserves and any other items which are listed as a liability on a
balance sheet of such Person determined on a consolidated basis in accordance
with Generally Accepted Accounting Principles, but excluding all general
contingency reserves and reserves for deferred income taxes and investment
credit, and excluding debt covered by escrows and security deposits fully
funded by cash or cash equivalents.


 


Interest
Expense.  For any Person for any Period,
with respect to all Indebtedness of such Person, an amount equal to the sum of
the following with respect to all Indebtedness of such Person: (i) total
interest expense, accrued in accordance with Generally Accepted Accounting
Principles, plus (ii) all capitalized interest determined in accordance with
Generally Accepted Accounting Principles, but only to the extent that such
capitalized interest is not covered by an interest reserve established under a
loan facility (such as capitalized construction interest provided for in a
construction loan).


 


Interest
Payment Date.  As to any Base Rate Loan
or LIBOR Rate Loan, the first day of each calendar month.


 


Interest
Period.  With respect to each Loan, (a)
initially, the period commencing on the Borrowing Date of such Loan and ending
on the last day of one of the following periods, as selected by the Borrower in
a Loan Request: (i) for any Base Rate Loan, the day on which such Base Rate
Loan is paid in full or converted to a LIBOR Rate Loan; and (ii) for any LIBOR
Rate Loan, 7 days (but only to the extent available in the Eurodollar market to
all Lenders), 1, 2, or 3 months; and (b) thereafter, each period commencing on
the last day of the next preceding Interest Period applicable to such Loan and
ending on the last day of one of the periods set forth above, as selected by
the Borrower in a Conversion Request; provided that all of the foregoing
provisions relating to Interest Periods are subject to the following:


 


(A) if any
Interest Period with respect to a LIBOR Rate Loan would otherwise end on a day
that is not a Eurodollar Business Day, that Interest Period shall be extended
to the next succeeding Eurodollar Business Day unless the result of such
extension would be to carry such Interest Period into another calendar month,
in which event such Interest Period shall end on the immediately preceding
Eurodollar Business Day;


 


9

















 


(B) if any
Interest Period with respect to a Base Rate Loan would end on a day that is not
a Business Day, that Interest Period shall end on the next succeeding Business
Day;


 


(C) if the
Borrower shall fail to give notice as provided in §2.6, the Borrower shall be
deemed to have requested a conversion of the affected LIBOR Rate Loan to a Base
Rate Loan on the last day of the then current Interest Period with respect
thereto;


 


(D) any
Interest Period relating to any LIBOR Rate Loan that begins on the last
Eurodollar Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Eurodollar Business Day of a calendar month;


 


(E) no more than four (4) Interest Periods
relating to LIBOR Rate Loans may be outstanding at any one time; and


 


(F) the
Borrower may not select any Interest Period relating to any LIBOR Rate Loan
that would extend beyond the Maturity Date.


 


Interest Rate
Contracts.  Interest rate swap, cap,
collar or similar agreements providing for interest rate protection.


 


Investments.  In any Person, any loan, advance, or extension
of credit to or for the account of, any guaranty, endorsement (other than for
collection in the ordinary course of business) or other direct or indirect
contingent liability in connection with the obligations, capital interests or
equity distributions of, any ownership, purchase or acquisition of any capital
interests, business, assets, obligations or securities of, or any other
interest in  or capital contribution to,
such Person.


 


Leases.  Leases, licenses and agreements whether
written or oral, relating to the use or occupation of space in the Buildings
located on the Unencumbered Assets by persons other than the owner thereof.


 


Lenders.  As defined in the preamble hereto.


 


LIBOR Lending
Office.  Initially, the office of each
Lender designated as such in Schedule 1 hereto; thereafter, such other office
of such Lender, if any, that shall be making or maintaining LIBOR Rate Loans.


 


LIBOR
Rate.  For any Interest Period with
respect to a LIBOR Rate Loan, the rate per annum equal to the quotient (rounded
upwards to the nearest 1/1000 of one percent) of (a) the rate per annum for
deposits in Dollars in the London interbank market for a period equal in length
to such Interest Period which appears on Telerate Page 3750 as of 11:00 a.m.
(London, England time)  two Eurodollar
Business Days prior to the beginning of such Interest Period, divided by (b) a
number equal to 1.00 minus the Eurocurrency Reserve Rate. Each determination of
the LIBOR Rate applicable to the particular Interest Period selected by the Borrower
shall be made by the Agent and shall be conclusive and binding upon the
Borrower absent manifest error.


 


LIBOR Rate
Loans.  Loans bearing interest
calculated by reference to the LIBOR Rate.


 


10

















 


Lien.  Any lien, encumbrance, mortgage, deed of
trust, pledge, restriction or other security interest.  If title to any Real Estate Asset is held by
a Subsidiary of Borrower or an Unconsolidated Entity then any pledge or
assignment of Borrower’s stock, partnership interest, limited liability company
interest or other ownership interest in such Subsidiary or Unconsolidated
Entity shall be deemed to be a Lien on the Real Estate Assets owned by such
Subsidiary or Unconsolidated Entity.


 


Loan
Documents. This Agreement, the Notes, the Collateral Documents, and any and all
other agreements, documents and instruments now or hereafter evidencing,
securing or otherwise relating to the Loans.


 


Loan
Request.  See §2.5.


 


Loans.  Loans made or to be made by the Lenders to
the Borrower pursuant to §2.1 and §2.5.


 


Majority
Lenders. As of any date, the Lenders whose aggregate Commitments constitute at
least fifty-one percent (51%) of the Total Commitment  provided that the Commitments of any
Delinquent Lenders shall be disregarded when determining the Majority Lenders.


 


Material
Adverse Effect.  Any condition which has
a material adverse effect on (i) the business, operations, properties, assets
or condition (financial or otherwise) of the Borrower, the Company, or any
other Guarantor, taken as a whole, or (ii) the ability of the Borrower, the
Company or any other Guarantor to perform its obligations under the Loan
Documents, or (iii) the validity or enforceability of any of the Loan Documents
or the remedies or material rights of the Agent or the Lenders thereunder.


 


Maturity
Date.  December 20, 2004, or such
earlier date on which the Loans shall become due and payable pursuant to the
terms hereof.


 


Maximum Credit
Amount. As of any date of determination, the lesser of


 


(i) the Total
Commitment and


 


(ii) the sum
of


 


(A) 50% of the
aggregate Structured Finance Collateral Asset Values of all Structured Finance
Collateral Assets that are 100% beneficially owned by the Borrower and/or any
Guarantor plus


 


(B) the lesser
of (x) $37,500,000 and (y) 25% of the aggregate Structured Finance Collateral
Asset Values of all Structured Finance Collateral Assets that are less than
100% beneficially owned by the Borrower and/or any Guarantor.


 


Minimum
Capital Expenditure Reserves.  For any
Real Estate Asset, $0.40 per net rentable square foot of such Real Estate Asset
per annum, or, for any shorter period, such amount multiplied by a fraction the
numerator of which is the length of the applicable period in months (or
portions thereof) and the denominator of which is 12.


 


11

















 


Minimum
Management Fees.  Shall mean the greater
of (i) three percent (3%) of Rents from the related Real Estate Asset for the
three (3) month period immediately preceding the calculation, and (ii) the
actual management fees paid by the Borrower and the Related Companies with
respect to such Real Estate Asset during such three (3) month period.


 


Mortgage.  Any mortgage, deed of trust, or other
security instrument that creates a Lien on a class B (or better) office
property (including the development of same) located in the greater New York
City area or assets related thereto to secure Indebtedness.


 


Mortgage
Loan.  Any Indebtedness the payment or
performance of which is secured by a Mortgage.


 


Mortgage
Note.  Any instrument, document or
agreement evidencing a Mortgage Loan.


 


Multiemployer
Plan.  Any multiemployer plan within the
meaning of §3(37) of ERISA contributed to by the Borrower or any Guarantor or
any of their ERISA Affiliates.


 


Net Offering
Proceeds.  All cash proceeds received
after  the Effective Date by the
Borrower or the Company as a result of the sale of common, preferred or other
classes of stock of the Company or the issuance of limited partnership
interests in the Borrower less customary costs and discounts of issuance paid
by Company or Borrower in connection therewith.


 


Net Operating
Income.  With respect to any Real Estate
Asset, for the period of determination, the Rents derived from the customary
operation of such Real Estate Asset, less operating expenses attributable to
such Real Estate Asset, and shall include only the sum of (i) the Rents
received or expected to be received, and earned in accordance with Generally
Accepted Accounting Principles, pursuant to Leases in place, plus (ii) other
income actually received and earned in accordance with Generally Accepted
Accounting Principles with respect to such Real Estate Asset, plus (iii) rent
loss or business interruption insurance proceeds received or expected to be received
during or relating to such period due to a casualty that has occurred prior to
the date of calculation plus (iv) parking or other income, less operating
expenses actually paid or payable on an accrual basis in accordance with
Generally Accepted Accounting Principles attributable to such Real Estate Asset
during such period, as set forth on operating statements and schedules
reasonably satisfactory to Agent.  Net
Operating Income shall be calculated in accordance with customary accounting
principles applicable to real estate. 
Notwithstanding the foregoing, 
Net Operating Income shall not include (i) any condemnation or insurance
proceeds (excluding rent loss or business interruption insurance proceeds as
described above), (ii) any proceeds resulting from the sale, exchange,
transfer, financing or refinancing of all or any portion of the Real Estate
Asset for which it is to be determined, (iii) amounts received from tenants as
security deposits unless actually applied toward the payment of rent or additional
rent in accordance with the terms of such tenant’s lease, (iv) interest income
and (v) any type of income otherwise included in Net Operating Income but paid
directly by any tenant to a Person other than Borrower or a Guarantor or other
Related Company or their respective agents or representatives.


 


Notes.  See §2.3.


 


12

















 


Obligations.  All indebtedness, obligations and
liabilities of the Borrower or any Guarantor to any of the Lenders and the
Agent, individually or collectively, under this Agreement, the other Loan
Documents or in respect of any of the Loans or the Notes or other instruments
at any time evidencing any thereof, whether existing on the date of this
Agreement or arising or incurred hereafter, direct or indirect, joint or
several, absolute or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract, operation of law of
otherwise.


 


Outstanding
Obligations.  As of any date of
determination, the sum of the outstanding principal amount of the Loans.


 


Occupancy
Rate.   With respect to an Unencumbered
Asset at any time, the ratio, as of such date, expressed as a percentage, of
(i) the net rentable area of such Unencumbered Asset leased to tenants paying
rent pursuant to, and to the extent required under, Leases other than Leases
which are in material default, to (ii) the net rentable area of such
Unencumbered Asset.


 


PBGC.  The Pension Benefit Guaranty Corporation
created by §4002 of ERISA and any successor entity or entities having similar
responsibilities.


 


Permitted
Developments.  The construction of any
new buildings or the construction of additions expanding existing buildings or
the rehabilitation of existing buildings (other than normal refurbishing of
common areas and tenant fit up work when one tenant leases space previously
occupied by another tenant) relating to any Real Estate Assets of the Borrower,
any Guarantor or any of the other Related Companies, including (but not limited
to) Forward Purchase Contracts, having met
all conditions of payment thereof but for the passage of time, and each
Permitted Development shall be counted for purposes of §8.2 from the time of
commencement of the applicable construction work until a final certificate of occupancy
has been issued with respect to such project in the amount of the total
projected cost of such project.


 


Permitted
Investments Cap.  See §8.2.


 


Permitted
Liens.  The following Liens, security
interests and other encumbrances:


 


(i)  liens to secure taxes, assessments and other
governmental charges in respect of obligations not overdue, the Indebtedness
with respect to which is permitted hereunder;


 


(ii) deposits
or pledges made in connection with, or to secure payment of, workmen’s
compensation, unemployment insurance, old age pensions or other social security
obligations;


 


(iii) liens in
respect of judgments or awards, the Indebtedness with respect to which is
permitted hereunder;


 


(iv) liens of
carriers, warehousemen, mechanics and materialmen, and other like liens which
are either covered by a full indemnity from a creditworthy indemnitor or have
been in existence less than 120 days from the date of creation thereof in
respect of obligations not overdue, the Indebtedness with respect to which is permitted
hereunder; and


 


13

















 


(v)
encumbrances consisting of easements, rights of way, Leases, covenants,
restrictions on the use of real property and defects and irregularities in the
title thereto; and other minor liens or encumbrances none of which in the
opinion of the Borrower interferes materially with the use of the property
affected in the ordinary conduct of the business of the Borrower, and which
matters (x) do not individually or in the aggregate have a materially adverse
effect on the value of the Unencumbered Asset and (y) do not make title to such
property unmarketable by the conveyancing standards in effect where such
property is located.


 


Person.  Any individual, corporation, partnership,
limited liability company, trust, unincorporated association, business, or
other legal entity, and any government or any governmental agency or political
subdivision thereof.


 


Pledge and
Security Agreement.  The amended and
restated pledge and security agreement, in substantially the form of Exhibit D
hereto, executed by each Person pledging an interest in the Collateral and
delivered to the Agent, as collateral agent for the Secured Parties, on or
before the Effective Date.


 


Preferred
Distribution.  The declaration or
payment of any dividend or distribution of cash or cash equivalents to the
holders of preferred shares of beneficial interest in the Company or the
holders of preferred  units of limited
partnership interest of the Borrower.


 


Prepayment
Date.  See §3.3.


 


Properties.  All Real Estate Assets, Real Estate, and all
other assets, including, without limitation, intangibles and personalty owned
by the Borrower or any Guarantor or any of the Related Companies.


 


Real
Estate.  All real property at any time
owned, leased (as lessee or sublessee) or operated by the Borrower, any
Guarantor, or any of the Related Companies or any Unconsolidated Entity.


 


Real Estate
Assets.  Those fixed and tangible
properties consisting of land, buildings and/or other improvements owned by the
Borrower, by any Guarantor, by any of the Related Companies or by any
Unconsolidated Entity at the relevant time of reference thereto, including but
not limited to the Unencumbered Assets, but excluding all leaseholds other than
leaseholds under Ground Leases which either have an unexpired term (including
unexercised renewals options exercisable at the option of the lessee) of at
least 20 years or contain a purchase option for nominal consideration.


 


Real Estate
Effective Control Assets.  Those
Investments in mortgages and mortgage participations owned by the Borrower or
by any Guarantor as to which the Borrower has demonstrated to the Agent, in the
Agent’s discretion, that Borrower or a Guarantor has control of the
decision-making functions of management and leasing of such mortgaged
properties, has control of the economic benefits of such mortgaged properties,
and holds an option to purchase such mortgaged properties.


 


14

















 


Record.  The grid attached to any Note, or the
continuation of such grid, or any other similar record, including computer
records, maintained by any Lender with respect to any Loan referred to in such
Note.


 


Recourse
Indebtedness.  All Indebtedness except
Indebtedness with respect to which recourse for payment is contractually
limited (except for customary exclusions) to specific assets encumbered by a
lien securing such Indebtedness.


 


Register.  See §19.3.


 


Related
Companies.  The entities listed and
described on Schedule 1.3 hereto, or after the Effective Date, any entity whose
financial statements are consolidated or combined with the Company’s pursuant
to Generally Accepted Accounting Principles, or any ERISA Affiliate.


 


Release.  A release, spillage, leaking, pumping,
pouring, emitting, emptying, discharge, injection, escape, disposal or dumping
of Hazardous Material.


 


Rents. 
All rents, issues, profits, royalties, receipts, revenues, accounts
receivable, and income, including fixed, additional and percentage rents,
occupancy charges, operating expense reimbursements, reimbursements for
increases in taxes, sums paid by tenants to the Borrower or the Related
Companies to reimburse the Borrower or the Related Companies for amounts
originally paid or to be paid by the Borrower or the Related Companies or their
respective agents or affiliates for which such tenants were liable, as, for
example, tenant improvements costs in excess of any work letter, lease takeover
costs, moving expenses and tax and operating expense pass-throughs for which a
tenant is solely liable, parking income, recoveries for common area maintenance
expense, tax, insurance, utility and service charges and contributions,
proceeds of sale of electricity, gas, heating, air-conditioning and other
utilities and services, deficiency rents and liquidated damages, and other
benefits.


 


Requisite
Lenders.  As of any date, the Lenders
whose aggregate Commitments constitute at least sixty-six and two-thirds
percent (66-2/3%) of the Total Commitment 
provided that the Commitments of any Delinquent Lenders shall be
disregarded when determining the Requisite Lenders.


 


Responsible
Officer.  With respect to the Company,
any one of its Chairman, President, Chief Executive Officer, Chief Operating
Officer, Chief Financial Officer, Treasurer, Executive Vice Presidents or
Senior Vice Presidents.


 


Secured
Parties.  The Lenders and the Agent, as
collateral agent for the benefit of the Lenders.


 


Structured
Finance Collateral Asset.  Each
Structured Finance Investment set forth on Schedule 1.1, as such Schedule may
be amended or supplemented from time to time, and any other Structured Finance
Investment which at the date of determination, (i) is beneficially owned in
whole or in part by Borrower or one of the Guarantors; (ii) is unencumbered by
any Liens; (iii) (A) if a Mortgage Loan, is not greater than ninety (90) days
past due, (B) if a loan secured by partnership or membership interests or a
membership agreement, is not greater than ninety (90) days past due, or (C) if
a preferred equity Investment, there are no dividends in arrears for a


 


15

















 


period of more than ninety (90)
days; (iv) is pledged to the Agent for the benefit of the Lenders as Collateral
to secure the Obligations, and (v) is approved as a “Structured Finance
Collateral Asset” by both (x) the Requisite Lenders in their sole discretion
and (y) each of Fleet National Bank, Wachovia Bank National Association, and
Sovereign Bank, to the extent each of them shall be as of such date of
determination a Lender holding a Commitment of at least $15,000,000, in each
case in their sole respective discretion (which shall not be unreasonably
delayed).  Each asset which satisfies
the conditions set forth in this definition shall be deemed to be a Structured
Finance Collateral Asset only during such periods of time as Borrower has
included the same on the list of Structured Finance Collateral Assets attached
to the most recent Compliance Certificate delivered hereunder.


 


Structured
Finance Collateral Asset Value.  With
respect to any Structured Finance Collateral Asset, when determined as of the
last day of any fiscal quarter, the product of (A) the percentage (stated as a
fraction) of Borrower’s or the Guarantors’ aggregate beneficial ownership interest
in the Structured Finance Collateral Asset times (B) the lesser of (i) the
stated face value of Structured Finance Collateral Asset (taking into account
principal amortization), (ii) the purchase price paid for the Structured
Finance Collateral Asset by the Borrower and/or the Guarantors, and (iii) the
book value of the Structured Finance Collateral Asset as determined by
Generally Accepted Accounting Principles.


 


Structured
Finance Investment. Any of the following Investments in (or in entities whose
Investments are primarily in): (i) Mortgages, Mortgage Loans, and Mortgage
Notes, (ii) mezzanine or bridge financing loans secured by partnership or
equivalent equity interests in the borrower thereof or (iii) a preferred equity
Investments (including preferred limited partnership or limited liability
company interests) (including, but not limited to, single-asset or
limited-asset collateralized mortgage backed securities and in entities owning
(or leasing pursuant to a Ground Lease) class B (or better) office properties
located in the greater New York, New York area, but subject in all cases to the
Lenders’ approval as set forth in clause (v) of the definition of Structured
Finance Collateral Asset.


 


Subsidiary.  Any corporation, association, trust, or other
business entity of which the designated parent or other controlling Person
shall at any time own directly or indirectly through a Subsidiary or
Subsidiaries at least a majority (by number of votes) of the outstanding Voting
Interests.


 


Tangible Net Worth.  The book value of all of the assets of the
Borrower and the Related Companies minus the book value of all of the
liabilities of the Borrower and the Related Companies minus all intangibles
determined in accordance with Generally Accepted Accounting Principles.


 


Telerate Page
3750.  The display designated as “Page
3750” on the Telerate Service, or such other page as may replace Page 3750 on
that service or such other service as may be nominated by the British Bankers’
Association as the information vender for the purpose of displaying British
Bankers’ Association interest settlement rates for U.S. Dollar deposits.


 


Term Loan
Facility. The Indebtedness of the Borrower and the Guarantors under that
certain Amended and Restated Credit and Guaranty Agreement, dated as of
February 6, 2003,


 


16

















 


among the Borrower, certain of
the Guarantors, the lenders party thereto, and Wells Fargo Bank, National
Association, as administrative agent, as amended by a First Amendment thereto
dated June 5, 2003, and as the same may be amended, supplemented or modified
from time to time, and any refinancing thereof.


 


Total
Assets. As of any date of determination, the sum of the following, without
duplication:  (i) the Value of All
Unencumbered Assets, plus (ii) the aggregate Adjusted Net Operating Income for
the fiscal quarter immediately preceding such date, annualized, for all Real
Estate Assets (other than Unencumbered Assets) and Real Estate Effective
Control Assets owned or leased by the Borrower, the Company or one of their
respective Subsidiaries or the Unsecured Revolving Credit Facility Guarantors
other than Real Estate Assets referred to in clause (iii) of this definition,
divided by nine percent (9.0%), plus (iii) the aggregate purchase price of all
Real Estate Assets (other than Unencumbered Assets but including Forward Purchase Contracts having met all
conditions of payment of the purchase price thereunder but for the passage of
time) and Real Estate Effective Control Assets acquired or initially
leased by the Borrower, the Company or one of their respective Subsidiaries or
the Unsecured Revolving Credit Facility Guarantors within the fiscal quarter
immediately preceding such date, multiplied by ninety-five percent (95.0%),
plus (iv) the book value of unrestricted cash and cash equivalents of the
Borrower, the Company and their respective Subsidiaries, plus (v) the aggregate
book value of all Investments of the Borrower, the Company and their respective
Subsidiaries and the Unsecured Revolving Credit Facility Guarantors (other than
Real Estate Effective Control Assets) permitted under §8.2 hereof.


 


 


Total
Commitment. The sum of the Commitments of the Lenders, as in effect from time
to time.


 


Total
Debt.  The sum of (without duplication)
all Indebtedness of the Borrower and the Company included in the liabilities
portion of the Borrower’s balance sheet prepared in accordance with Generally
Accepted Accounting Principles as of the end of the most recent fiscal quarter
for which financial statements have been provided pursuant to §7.4.


 


1221
Avenue of the Americas Investment.  An
Investment in less than all of the economic and beneficial ownership interests
in the 1221 Avenue of the Americas Owner.


 


1221
Avenue of the Americas Investment Party. 
Any Affiliate of Borrower which directly or indirectly owns or controls
the 1221 Avenue of the Americas Investment, provided that if Borrower directly
owns or controls the 1221 Avenue of the Americas Investment, Borrower shall be
the 1221 Avenue of the Americas Investment Party.


 


1221 Avenue of
the Americas Investment Period.  Any
period of time during which the 1221 Avenue of the Americas Investment Party
owns or controls the 1221 Avenue of the Americas Investment.


 


1221
Avenue of the Americas Owner. Rock-McGraw, Inc., a New York corporation
(“Rock-McGraw”), the fee owner of the premises located at 1221 Avenue of


 


17

















 


the Americas, New
York, New York as of December 16, 2003, or any successor to Rock-McGraw as fee
owner of the premises located at 1221 Avenue of the Americas, New York, New
York.


 


Type. As to
any Loan its nature as a Base Rate Loan or a LIBOR Rate Loan.


 


Unconsolidated
Entity.  As of any date, any Person,
other than a Wholly Owned Subsidiary, in whom the Borrower, the Company or any
Related Company holds an Investment, regardless of whether the financial
results of such Person would or would not be consolidated under Generally
Accepted Accounting Principles with the financial statements of the Borrower,
if such statements were prepared as of such date. Unconsolidated Entities
existing on the date hereof are set forth in Schedule 1.3.


 


Unencumbered Asset.  At all times, any Real Estate Asset identified as an
“Unencumbered Asset” under the Unsecured Revolving Credit Facility at such
time, provided, however, that if the Unsecured Revolving Credit Facility is no
longer outstanding, then any Real Estate Asset that would have qualified as an
“Unencumbered Asset” under the Unsecured Revolving Credit Facility if the same
had not been terminated.


 


Unencumbered
Asset Value.  With respect to any
Unencumbered Asset at any time, an amount computed as follows: (i) for any
Unencumbered Asset owned or leased by the Borrower or the Guarantors other than
Unencumbered Assets referred to in clause (ii) of this definition, the Adjusted
Net Operating Income for such Unencumbered Asset for the fiscal quarter
immediately preceding such date, annualized, divided by nine percent (9.0%), or
(ii) for any Unencumbered Asset acquired or initially leased by the Borrower or
the Guarantors within the fiscal quarter immediately preceding such date, the
purchase price of such Unencumbered Asset multiplied by ninety-five percent
(95.0%).


 


Unsecured
Indebtedness.  All Indebtedness of
Borrower, of any Unsecured Revolving Credit Facility Guarantor or of any of the
other Related Companies to the extent not secured by a Lien on any Properties
including, without limitation, the Outstanding Obligations and any Indebtedness
evidenced by any bonds, debentures, notes or other debt securities presently
outstanding or which may be hereafter issued by Borrower or by the
Company.  Unsecured Indebtedness shall
not include accrued ordinary operating expenses payable on a current basis.


 


Unsecured
Revolving Credit Facility.  The
$300,000,000 unsecured credit facility established pursuant to the Amended and
Restated Revolving Credit and Guaranty Agreement dated March 17, 2003 among
Borrower, Guarantors party thereto, lenders party thereto, and Fleet National
Bank, as Administrative Agent for the lenders party thereto, as it may be
further amended, modified or supplemented from time to time.


 


Unsecured
Revolving Credit Facility Guarantors.  A
Person who is a “Guarantor”, as such term is defined in the Amended and
Restated Revolving Credit and Guaranty Agreement dated March 17, 2003 among
Borrower, Guarantors party thereto, lenders party thereto, and Fleet National
Bank, as Administrative Agent for the lenders party thereto, as it may be further
amended, modified or supplemented from time to time.


 


Unused Amount.
See §4.2


 


18

















 


Value of All
Unencumbered Assets. As of any date of determination, an amount computed as
follows: the sum of (i) the aggregate Adjusted Net Operating Income for the
fiscal quarter immediately preceding such date, annualized, for all
Unencumbered Assets owned or leased by the Borrower or the Unsecured Revolving
Credit Facility Guarantors other than Unencumbered Assets referred to in clause
(ii) of this definition, divided by nine percent (9.0%), plus (ii) the
aggregate purchase price of all Unencumbered Assets acquired or initially
leased by the Borrower or the Unsecured Revolving Credit Facility Guarantors
within the fiscal quarter immediately preceding or ending on such date,
multiplied by ninety-five percent (95.0%); provided, however,
that after making such computation, the Value of All Unencumbered Assets shall
be reduced by the amount by which the Unencumbered Asset Value of any single
Unencumbered Asset exceeds thirty-five percent (35%) of the Value of All
Unencumbered Assets as so computed.


 


Variable Rate
Indebtedness.  The Loans and all other
Indebtedness of the Borrower which bears interest at a rate which is not fixed either
through maturity or for a term of at least thirty-six  (36) months from the date that such fixed rate became effective.


 


Voting
Interests.  Stock or similar ownership
interests, of any class or classes (however designated), the holders of which
are at the time entitled, as such holders, (a) to vote for the election of a
majority of the directors (or persons performing similar functions) of the
corporation, association, partnership, trust or other business entity involved,
or (b) to control, manage or conduct the business of the corporation,
partnership, association, trust or other business entity involved.


 


Wholly Owned
Subsidiary. As to any Person, a Subsidiary of such Person all of the
outstanding ownership interests of which Subsidiary (other than directors’
qualifying shares) shall at the time be owned by such Person or by one or more
Wholly Owned Subsidiaries of such Person.


 


§1.2.                       Rules of
Interpretation.


 


(a)  A reference to any document or agreement
shall include such document or agreement as amended, modified or supplemented
from time to time in accordance with its terms and the terms of this Agreement.


 


(b)  The singular includes the plural and the
plural includes the singular.


 


(c)  A reference to any law includes any
amendment or modification to such law.


 


(d)  A reference to any Person includes its
permitted successors and permitted assigns.


 


(e)  Accounting terms not otherwise defined
herein have the meanings assigned to them by Generally Accepted Accounting
Principles applied on a consistent basis by the accounting entity to which they
refer and, except as otherwise expressly stated, all use of accounting terms
with respect to the Borrower shall reflect the consolidation of the financial
statements of Borrower and the Related Companies.


 


19

















 


(f)  The words “include”, “includes” and
“including” are not limiting.


 


(g)  All terms not specifically defined herein or
by Generally Accepted Accounting Principles, which terms are defined in the
Uniform Commercial Code as in effect in New York, have the meanings assigned to
them therein.


 


(h)  Reference to a particular “§” refers to that
section of this Agreement unless otherwise indicated.


 


(i)  The words “herein”, “hereof”, “hereunder”
and words of like import shall refer to this Agreement as a whole and not to
any particular section or subdivision of this Agreement.


 


(j)  The words “so long as any Loan or Note is
outstanding” shall mean so long as such Loan or Note is not indefeasibly paid
in full in cash.


 


§2.                                REVOLVING
SECURED CREDIT FACILITY


 


§2.1.                       Commitment to Lend; Limitation on Total Commitment.


 


Subject to the provisions of
§2.5 and the other terms and conditions set forth in this Agreement, each of
the Lenders severally agrees to lend to the Borrower and the Borrower may
borrow, repay, and reborrow from time to time between the Effective Date and
the Maturity Date upon notice by the Borrower to the Agent given in accordance
with §2.5, such sums as are requested by the Borrower up to a maximum aggregate
principal amount of the Outstanding Obligations (after giving effect to all
amounts requested) at any one time equal to such Lender’s Commitment, provided
that the sum of the Outstanding Obligations (after giving effect to all amounts
requested) shall not at any time exceed the Maximum Credit Amount. The Loans
shall be made pro rata in accordance with each Lender’s Commitment Percentage
and the Lenders shall at all times immediately adjust inter se any inconsistency
between each Lender’s outstanding principal amount and each Lender’s
Commitment. Each request for a Loan hereunder shall constitute a representation
and warranty by the Borrower that the conditions set forth in §10 or §11
(whichever is applicable) have been satisfied on the date of such request and
will be satisfied on the proposed Borrowing Date of the requested Loan,
provided that the making of such representation and warranty by Borrower shall
not limit the right of any Lender not to lend upon a determination by the
Requisite Lenders that such conditions have not been satisfied.


 


§2.2.                       Changes in Total Commitment.  (a) 
The Borrower shall have the right at any time upon at least ten (10)
Business Days’ prior written notice to the Agent (which shall promptly notify
each Lender), to reduce by $1,000,000 or an integral multiple of $1,000,000 in
excess thereof the unborrowed portion of the then Total Commitment, provided
that the Total Commitment shall not be reduced to less than $50,000,000,
whereupon the Commitments of the Lenders shall be reduced pro rata in
accordance with their respective Commitment Percentages by the amount specified
in such notice. Upon the effective date of any such reduction, the Borrower
shall pay to the Agent for the respective accounts of the Lenders the full amount
of any commitment fee required under §4.2 hereof then accrued and unpaid on the
amount of the reduction. No reduction of the Commitments may be reinstated.


 


(b)  Upon the effective date of  each reduction in the Total Commitment
pursuant to this §2.2 the parties shall enter into an amendment of this
Agreement revising Schedule 1.2


 


20

















 


and the Borrower shall execute
and deliver to the Agent new Notes for each Lender whose Commitment has changed
so that the maximum principal amount of such Lender’s Note shall equal its
Commitment.  The Agent shall promptly
deliver such replacement Notes to the respective Lenders in exchange for the
Notes replaced thereby which shall be surrendered by such Lenders.  Such new Notes shall provide that they are
replacements for the surrendered Notes and that they do not constitute a
novation, shall be dated as of the effective date of such reduction in the
Total Commitment, as applicable, and shall otherwise be in substantially the
form of the replaced Notes. On the date of issuance of any new Notes pursuant
to this §2.2(b), the Borrower shall deliver an opinion of counsel, addressed to
the Lenders and the Agent, relating to the due authorization, execution and
delivery of such new Notes and the enforceability thereof, substantially in the
form of the relevant portions of the opinion delivered pursuant to §10.6
hereof. The surrendered Notes shall be canceled and returned to the Borrower.


 


§2.3.                       The Notes.  (a) The
Loans shall be evidenced by separate promissory notes of the Borrower in
substantially the form of Exhibit A hereto (each a “Note”), and completed with
appropriate insertions.  One Note shall
be payable to the order of each Lender in an aggregate principal amount equal
to such Lender’s Commitment. The Borrower irrevocably authorizes each Lender to
make or cause to be made, at or about the time of the Borrowing Date of any
Loan or at the time of receipt of any payment of principal on such Lender’s
Note, an appropriate notation on such Lender’s Record reflecting the making of
such Loan or (as the case may be) the receipt of such payment. The outstanding
amount of the Loans set forth on such Lender’s Record shall (absent manifest
error) be prima facie evidence of the principal amount thereof owing and unpaid
to such Lender, but the failure to record, or any error in so recording, any
such amount on the Record shall not limit or otherwise affect the obligations
of the Borrower hereunder or under any Note to make payments of principal of or
interest on any Note when due.


 


(b)  Upon receipt of an affidavit (including
appropriate indemnification) of an officer of any Lender as to the loss, theft,
destruction or mutilation of such Lender’s Note, and, in the case of such loss,
theft, destruction or mutilation, upon cancellation of such Note, the Borrower
will issue, in lieu thereof, a replacement note in the same principal amount
thereof and otherwise of like tenor.


 


§2.4.                       Interest on
Loans.


 


(a)  Each Base Rate Loan shall bear interest commencing
with the Borrowing Date thereof at the rate equal to the Base Rate. Changes in
the rate of interest resulting from changes in the Base Rate shall take place
immediately without demand or notice of any kind.


 


(b)  Each LIBOR Rate Loan shall bear interest for
the period commencing with the Borrowing Date thereof and ending on the last
day of the Interest Period with respect thereto at the rate equal to the
Applicable LIBOR Margin per annum above the LIBOR Rate determined for such
Interest Period.  Agent shall determine
the rate equal to the Applicable LIBOR Margin per annum above the LIBOR Rate
which will be in effect during such Interest Period and inform Borrower of such
determination (which determination shall be conclusive and binding upon Borrower
absent manifest error).


 


21

















 


(c)  The Borrower unconditionally promises, in
accordance with and subject to the provisions of the Loan Documents, to pay
interest on each Loan in arrears on each Interest Payment Date with respect
thereto.


 


(d)  All agreements between the Borrower and the
Guarantors, on the one hand, and Agent and the Lenders, on the other hand, are
expressly limited so that in no contingency or event whatsoever, whether by
reason of acceleration of maturity of the Obligations or otherwise, shall the
amount paid or agreed to be paid to the Lenders for the use or the forbearance
of the Indebtedness evidenced under this Agreement and the Notes exceed the
maximum permissible under law.  As used herein,
the term “applicable law” shall mean the law in effect as of the date hereof;
provided, however, that in the event there is a change in the law which results
in a higher permissible rate of interest, then this Agreement and the Notes
shall be governed by such new law as of its effective date.  If, under or from any circumstances
whatsoever, fulfillment of any provision of this Agreement or any other Loan
Document at the time of performance of such provision shall be due, shall
involve transcending the limit  of such
validity prescribed by applicable law, then the obligation to be fulfilled
shall automatically be reduced to the limits of such validity, and if under or
from any circumstances whatsoever the Lenders should receive as interest an
amount which would exceed the highest lawful rate, such amount which would be
excessive interest shall be applied to the reduction of the principal amount of
the Loans then outstanding and not to the payment of interest.  In the event that, as a result of this §2.4(d),
the interest rate on any Loans is reduced and, after such reduction, the
maximum permissible interest rate under applicable law exceeds the interest
rate payable hereunder, the interest rate on the Loans shall be the maximum
permissible interest rate under applicable law until the aggregate amount of
interest paid equals the aggregate amount of interest that would have been paid
but for this §2.4(d).  This provision
shall control every other provision of the Loan Documents.


 


§2.5.                       Requests
for Loans.


 


(a) The
Borrower shall give to the Agent written notice in the form of Exhibit B hereto
of each Loan requested hereunder (a “Loan Request”) no less than (a) one (1)
Business Day prior to the proposed Borrowing Date of any Base Rate Loan and (b)
three (3) Eurodollar Business Days prior to the proposed Borrowing Date of any
LIBOR Rate Loan. Each such notice shall specify (i) the principal amount of the
Loan requested, (ii) the proposed Borrowing Date of such Loan, (iii) the
Interest Period for such Loan, and (iv) the Type of such Loan, and shall be
accompanied by a statement in the form of Exhibit C hereto signed by a
Responsible Officer setting forth in reasonable detail computations evidencing
compliance with the covenants contained in §9.1 through §9.8 hereof after
giving effect to such requested Loan (a “Compliance Certificate”). On the same
day as the receipt of a Loan Request for a Base Rate Loan, and within one (1)
Business Day after receipt of a Loan Request for a LIBOR Rate Loan, the Agent
shall provide to each of the Lenders by facsimile a copy of such Loan Request
and accompanying Compliance Certificate and each Lender shall, within 24 hours
thereafter (if such following day is a Business Day, and if not, before 10:30
AM Boston time on the next succeeding Business Day), notify the Agent if it
believes that any of the conditions contained in §11 of this Agreement has not
been met or waived.  If such a notice is
given, Agent shall poll the Lenders, and the Requisite Lenders shall promptly
determine whether all of the conditions contained in §11 of this Agreement have
been met or waived.  If no such notice
is given by any Lender or if following such notice the Requisite Lenders
determine that the conditions contained in §11 have


 


22

















 


been met or waived, or, in any
event, if all conditions in §11 have in fact been met or waived, Agent shall
notify the Lenders that each  of the
Lenders shall be obligated to fund its Commitment Percentage of the requested
Loans.  Each such Loan Request shall be
irrevocable and binding on the Borrower and the Borrower shall be obligated to
accept the Loan requested from the Lenders on the proposed Borrowing Date. Each
Loan Request shall be in a minimum aggregate amount of $1,000,000 or an
integral multiple of $100,000 in excess thereof.   The Borrower shall be allowed up to two (2) Loan Requests per
month.


 


(b)
Notwithstanding anything contained in §2.5(a) to the contrary, in the event
that the making of a requested Loan would cause non-compliance with any
of the covenants contained in §9.1 through §9.8 hereof, the Agent may, in its
sole discretion, reduce the amount of the Loan Request to an amount which would
enable the Borrower to maintain compliance with such otherwise defaulted
covenant or covenants and Borrower shall accept the Loan made pursuant to such
reduced Loan Request.


 


§2.6.                       Conversion
Options.


 


(a) The
Borrower may elect from time to time to convert any outstanding Loan to a Loan
of another Type, provided that (i) with respect to any such conversion of a
LIBOR Rate Loan to a Base Rate Loan, the Borrower shall give the Agent at least
three (3) Business Days prior written notice of such election; (ii) with
respect to any such conversion of a LIBOR Rate Loan into a Base Rate Loan, such
conversion shall only be made on the last day of the Interest Period with
respect thereto; (iii) subject to the further proviso at the end of this
section and subject to §2.6(b) and §2.6(d) hereof with respect to any such
conversion of a Base Rate Loan to a LIBOR Rate Loan, the Borrower shall give
the Agent at least three (3) Eurodollar Business Days prior written notice of
such election and (iv) no Loan may be converted into a LIBOR Rate Loan when any
Default or Event of Default has occurred and is continuing. The Agent shall
promptly notify the Lenders of any such request received.  On the date on which such conversion is
being made, each Lender shall take such action as is necessary to transfer its
Commitment Percentage of such Loans to its Domestic Lending Office or its LIBOR
Lending Office, as the case may be. All or any part of outstanding Loans of any
Type may be converted as provided herein, provided further that each Conversion
Request relating to the conversion of a Base Rate Loan to a LIBOR Rate Loan
shall be for an amount equal to $1,000,000 (unless the aggregate outstanding
principal amount of Loans is less than $1,000,000) or an integral multiple of
$100,000 in excess thereof and shall be irrevocable by the Borrower.


 


(b) Any Loans
of any Type may be continued as such upon the expiration of an Interest Period
with respect thereto by compliance by the Borrower with the notice provisions
contained in §2.6(a); provided that no LIBOR Rate Loan may be continued as such
when any Default or Event of Default has occurred and is continuing but shall
be automatically converted to a Base Rate Loan on the last day of the first
Interest Period relating thereto ending during the continuance of any Default
or Event of Default of which the officers of the Agent active upon the
Borrower’s account have actual knowledge.


 


(c) In the
event that the Borrower does not notify the Agent of its election hereunder
with respect to any Loan, such Loan shall be automatically converted to a Base
Rate Loan at the end of the applicable Interest Period.


 


23

















 


(d) The
Borrower may not request a LIBOR Rate Loan pursuant to §2.5, elect to convert a
Base Rate Loan to a LIBOR Rate Loan pursuant to §2.6(a) or elect to continue a
LIBOR Rate Loan pursuant to §2.6(b) if, after giving effect thereto, there
would be greater than four (4) LIBOR Rate Loans outstanding. Any Loan Request
for a LIBOR Rate Loan that would create greater than four (4) LIBOR Rate Loans
outstanding shall be deemed to be a Loan Request for a Base Rate Loan.


 


§2.7.                       Funds for Loans.


 


(a) Subject to
§2.5 and other provisions of this Agreement, not later than 1:00 p.m. (Boston
time) on the proposed Borrowing Date of any Loans, each of the Lenders will
make available to the Agent, at the Agent’s Head Office, in immediately
available funds, the amount of such Lender’s Commitment Percentage of the
amount of the requested Loans. Upon receipt from each Lender of such amount,
and upon receipt of the documents required by §§10 or 11 (whichever is
applicable) and the satisfaction of the other conditions set forth therein, to
the extent applicable, the Agent will make available to the Borrower the
aggregate amount of such Loans made available to the Agent by the Lenders. The
failure or refusal of any Lender to make available to the Agent at the
aforesaid time and place on any Borrowing Date the amount of its Commitment
Percentage of the requested Loans shall not relieve any other Lender from its
several obligation hereunder to make available to the Agent the amount of such
other Lender’s Commitment Percentage of any requested Loans but shall not
obligate any other Lender or Agent to fund more than its Commitment Percentage
of the requested Loans or to increase its Commitment Percentage.


 


(b) The Agent
may, unless notified to the contrary by any Lender prior to a Borrowing Date,
assume that such Lender has made available to the Agent on such Borrowing Date
the amount of such Lender’s Commitment Percentage of the Loans to be made on
such Borrowing Date, and the Agent may (but it shall not be required to), in
reliance upon such assumption, make available to the Borrower a corresponding
amount. If any Lender makes available to the Agent such amount on a date after
such Borrowing Date, such Lender shall pay to the Agent on demand an amount
equal to the product of (i) the average computed for the period referred to in
clause (iii) below, of the weighted average interest rate paid by the Agent for
federal funds acquired by the Agent during each day included in such period,
times (ii) the amount of such Lender’s Commitment Percentage of such Loans,
times (iii) a fraction, the numerator of which is the number of days or portion
thereof that elapsed from and including such Borrowing Date to the date on
which the amount of such Lender’s Commitment Percentage of such Loans shall
become immediately available to the Agent, and the denominator of which is
365.  A statement of the Agent submitted
to such Lender with respect to any amounts owing under this paragraph shall be
prima facie evidence of the amount due and owing to the Agent by such Lender.


 


§2.8.                       [Intentionally
Omitted].


 


§3.                                REPAYMENT OF THE LOANS


 


§3.1.                       Maturity.  The
Borrower unconditionally promises, in accordance with, and subject to, the
provisions of the Loan Documents, to pay on the Maturity Date, and there shall


 


24

















 


become absolutely due and
payable on the Maturity Date, all of the Loans outstanding on such date,
together with any and all accrued and unpaid interest and charges thereon.


 


§3.2.                       Mandatory Repayments of Loan.  If at any time the sum of the Outstanding
Obligations exceeds the Maximum Credit Amount, then the Borrower shall
immediately pay the amount of such excess to the Agent for the respective
accounts of the Lenders for application to the Loans, provided, however, that
if as of the end of any fiscal quarter of the Borrower the sum of the
Outstanding Obligations exceeds the Maximum Credit Amount by less than $100,000
solely as a result of principal amortization within such fiscal quarter with
respect to a Structured Finance Collateral Asset (as certified to by a
Responsible Officer of the Company (on behalf of the Borrower and as
demonstrated on the compliance statement required pursuant to §6.4 hereof for
such fiscal quarter), no repayment shall be required under this §3.2.


 


§3.3.                       Optional Repayments of Loans.  The Borrower shall have the right, at its
election, to repay the outstanding amount of the Loans, as a whole or in part,
on any Business Day, without penalty or premium; provided that the full or
partial prepayment of the outstanding amount of any LIBOR Rate Loans made
pursuant to this §3.3 may be made only on the last day of the Interest Period
relating thereto, except as set forth below in this §3.3. The Borrower shall
give the Agent no later than 10:00 a.m., Boston time, at least one (1) Business
Day’s prior written notice of any prepayment pursuant to this §3.3 of any Base
Rate Loans and three (3) Eurodollar Business Days’ notice of any proposed
repayment pursuant to this §3.3 of any LIBOR Rate Loans, specifying the
proposed date of payment of Loans and the principal amount to be paid.  The Agent shall promptly notify each Lender
of the principal amount of such payment to be received by such Lender. Each
such partial prepayment of the Loans shall be in an integral multiple of
$1,000,000 (or, if the aggregate outstanding principal amount of Loans is less
than $1,000,000, the full amount thereof) provided that if partial prepayment
is received in connection with payment received from an underlying obligor or
other party to a Structured Finance Collateral Asset, the amount so received
may be prepaid and, to the extent requested by the Agent, shall be accompanied
by the payment of all charges outstanding on all Loans and of accrued interest
on the principal repaid to the date of payment. Unless otherwise requested by
the Borrower, the principal payments so received shall be applied first to the
principal of Base Rate Loans and then to the principal of LIBOR Rate
Loans.  Notwithstanding anything
contained herein to the contrary, the Borrower may make a full or partial
prepayment of a LIBOR Rate Loan on a date other than the last day of the
Interest Period relating thereto, if all such optional prepayments (in whole or
in part) on such Loans shall be accompanied by, and the Borrower hereby
promises to pay, a prepayment fee in an amount determined by the Agent in the
following manner:


 


(a)                                  Fixed
Rate Prepayment Fee.  Borrower
acknowledges that prepayment or acceleration of a LIBOR Rate Loan during an
Interest Period shall result in the Lenders incurring additional costs,
expenses and/or liabilities and that it is extremely difficult and impractical
to ascertain the extent of such costs, expenses and/or liabilities.  (For all purposes of this Section, any Loan
not being made as a LIBOR Rate Loan in accordance with the Loan Request
therefor, as a result of Borrower’s cancellation thereof, shall be treated as
if such LIBOR Rate Loan had been prepaid.) 
Therefore, on the date a LIBOR Rate Loan is prepaid or the date all sums
payable hereunder become due and payable, by acceleration or otherwise
(“Prepayment Date”), Borrower will pay to Agent, for the account of each
Lender, (in addition to all other sums then owing), an


 


25

















 


amount (“Fixed Rate Prepayment
Fee”) determined by the Agent as follows: The current rate for United States
Treasury securities (bills on a discounted basis shall be converted to a bond
equivalent) with a maturity date closest to the end of the Interest Period as
to which prepayment is made, shall be subtracted from the interest rate
applicable to the LIBOR Rate Loan being prepaid.  If the result is zero or a negative number, there shall be no
Fixed Rate Prepayment Fee.  If the
result is a positive number, then the resulting percentage shall be multiplied
by the amount of the LIBOR Rate Loan being prepaid.  The resulting amount shall be divided by 360 and multiplied by
the number of days remaining in the Interest Period as to which the prepayment
is being made. The resulting amount shall be the Fixed Rate Prepayment Fee.


 


(b)                                 Upon
the written notice to Borrower from Agent, Borrower shall immediately pay to
Agent, for the account of the Lenders, the Fixed Rate Prepayment Fee.  Such written notice (which shall include
calculations in reasonable detail) shall, in the absence of manifest error, be
conclusive and binding on the parties hereto.


 


(c)                                  Borrower
understands, agrees and acknowledges the following:  (i) no Lender has any obligation to purchase, sell and/or
match funds in connection with the use of the LIBOR Rate as a basis for
calculating the rate of interest on a LIBOR Rate Loan; (ii) the LIBOR Rate
is used merely as a reference in determining such rate; and (iii) Borrower
has accepted the LIBOR Rate as a reasonable and fair basis for calculating such
rate and a Fixed Rate Prepayment Fee. 
Borrower further agrees to pay the Fixed Rate Prepayment Fee, if any,
whether or not a Lender elects to purchase, sell and/or match funds.


 


§4.                                CERTAIN GENERAL PROVISIONS


 


§4.1.                       Fees.  On the Effective
Date, Borrower shall pay to the Agent for the benefit of each of the Lenders an
amendment fee equal to .15% of the Total Commitment as of the Effective Date.


 


§4.2.                       Commitment Fee. 
The Borrower shall pay to the Agent for the accounts of the Lenders in
accordance with their respective Commitment Percentages a commitment fee
calculated at the rate of 25 basis points per annum on the average daily amount
by which the Total Commitment (as it may have been reduced pursuant to §2.2)
exceeds the Outstanding Obligations (such excess, the “Unused Amount”).  The commitment fee shall be payable on the basis
of the applicable annual rate quarterly in arrears on or before the third
Business Day of each calendar quarter for the immediately preceding calendar
quarter commencing on April 3, 2002, with a final payment on the Maturity Date
or any earlier date on which the Commitments shall terminate.


 


§4.3.                       Funds for
Payments.


 


(a)                                  All
payments of principal, interest, closing fees, commitment fees and any other
amounts due hereunder (other than as provided in §4.1, §4.5 and §4.6) or under
any of the other Loan Documents, and all prepayments, shall be made to the
Agent, for the respective accounts of the Lenders, at the Agent’s Head Office,
in each case in Dollars in immediately available funds.


 


26

















 


(b)  All payments by the Borrower hereunder and
under any of the other Loan Documents shall be made without setoff or
counterclaim and free and clear of and without deduction for any taxes, levies,
imposts, duties, charges, fees, deductions, withholdings, compulsory liens,
restrictions or conditions of any nature now or hereafter imposed or levied by
any jurisdiction or any political subdivision thereof or taxing or other
authority therein unless the Borrower is compelled by law to make such
deduction or withholding.  If any such
obligation is imposed upon the Borrower with respect to any amount payable by
it hereunder or under any of the other Loan Documents, the Borrower shall pay
to the Agent, for the account of the Lenders or (as the case may be) the Agent,
on the date on which such amount is due and payable hereunder or under such
other Loan Document, such additional amount in Dollars as shall be necessary to
enable the Lenders or the Agent to receive the same net amount which the
Lenders or the Agent would have received on such due date had no such obligation
been imposed upon the Borrower. The Borrower will deliver promptly to the Agent
certificates or other valid vouchers for all taxes or other charges deducted
from or paid with respect to payments made by the Borrower hereunder or under
such other Loan Document.


 


(c)  In the event that Borrower is obligated to
pay any additional amounts described in clause (b) above in respect of any
Lender’s Loan, such Lender shall make commercially reasonable efforts to change
the jurisdiction of its lending office if, in the reasonable judgment of such
Lender, doing so would eliminate or reduce Borrower’s obligation to pay such
additional amounts and would not be disadvantageous to such Lender.


 


(d) All
payments shall be applied first to the payment of all fees, expenses and other
amounts due to the Agent and the Lenders (excluding principal and interest),
then to accrued interest, and the balance on account of outstanding principal;
provided, however, that after an Event of Default hereunder, payments will be
applied to the obligations of the Borrower to the Agent as the Requisite
Lenders determine in their sole discretion.


 


§4.4.                       Computations.  All
computations of interest on the Loans and of other fees to the extent
applicable shall be based on a 360-day year and paid for the actual
number of days elapsed. Except as otherwise provided in the definition of the
term “Interest Period” with respect to LIBOR Rate Loans, whenever a payment
hereunder or under any of the other Loan Documents becomes due on a day that is
not a Business Day, the due date for such payment shall be extended to the next
succeeding Business Day, and interest shall accrue during such extension. The
outstanding amount of the Loans as reflected on the Records from time to time
shall (absent manifest error) be considered correct and binding on the Borrower
unless within thirty (30) Business Days after receipt by the Agent or any of
the Lenders from Borrower of any notice by the Borrower of such outstanding
amount, the Agent or such Lender shall notify the Borrower to the contrary.


 


§4.5.                       Additional Costs, Etc.  If any change from and after the date hereof in any present or
future applicable law which expression, as used herein, includes statutes,
rules and regulations thereunder and interpretations thereof by any competent
court or by any governmental or other regulatory body or official charged with
the administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made upon
or otherwise issued to any Lender or the Agent by any central bank or other
fiscal, monetary or other authority (whether or not having the force of law),
shall:


 


27

















 


(a)  subject any Lender or the Agent to any tax, levy,
impost, duty, charge, fee, deduction or withholding of any nature with respect
to this Agreement, the other Loan Documents, such Lender’s Commitment or the
Loans (other than taxes based upon or measured by the income or profits of such
Lender or the Agent), or


 


(b)  materially change the basis of taxation
(except for changes in taxes on income or profits) of payments to any Lender of
the principal of or the interest on any Loans or any other amounts payable to
any Lender under this Agreement or the other Loan Documents, or


 


(c)  impose or increase or render applicable
(other than to the extent specifically provided for elsewhere in this
Agreement) any special deposit, reserve, assessment, liquidity, capital
adequacy or other similar requirements (whether or not having the force of law)
against assets held by, or deposits in or for the account of, or Loans by, or
commitments of an office of any Lender, or


 


(d)  impose on any Lender any other conditions or
requirements with respect to this Agreement, the other Loan Documents, the
Loans, the Commitment, or any class of Loans or commitments of which any of the
Loans or the Commitment forms a part;


 


and the result of any of the
foregoing is


 


(i) to
increase the cost to such Lender of making, funding, issuing, renewing,
extending or maintaining any of the Loans or such Lender’s Commitment, or


 


(ii) to reduce
the amount of principal, interest or other amount payable to such Lender or the
Agent hereunder on account of the Commitments or any of the Loans, or


 


(iii) to
require such Lender or the Agent to make any payment or to forego any interest
or other sum payable hereunder, the amount of which payment or foregone
interest or other sum is calculated by reference to the gross amount of any sum
receivable or deemed received by such Lender or the Agent from the Borrower
hereunder,


 


then, and in each such case,
the Borrower will, upon demand made by such Lender or (as the case may be) the
Agent at any time and from time to time and as often as the occasion therefor
may arise, pay to such Lender or the Agent, to the extent permitted by law,
such additional amounts as will be sufficient to compensate such Lender or the
Agent for such additional cost, reduction, payment or foregone interest or
other sum.


 


§4.6.                       Capital Adequacy. 
If any present or future law, governmental rule, regulation, policy,
guideline or directive (whether or not having the force of law) or the
interpretation thereof by a court or governmental authority with appropriate
jurisdiction affects the amount of capital required or expected to be
maintained by banks or bank holding companies and any Lender or the Agent
determines that the amount of capital required to be maintained by it is
increased by or based upon the existence of the Loans made or deemed to be made
pursuant hereto, then such Lender or the


 


28

















 


Agent may notify the Borrower of such fact, and the Borrower shall pay
to such Lender or the Agent from time to time on demand, as an additional fee payable
hereunder, such amount as such Lender or the Agent shall determine in good
faith and certify in a notice to the Borrower to be an amount that will
adequately compensate such Lender or the Agent in light of these circumstances
for its increased costs of maintaining such capital. Each Lender and the Agent
shall allocate such cost increases among its customers in good faith and on an
equitable basis.


 


§4.7.                       Certificate. Each Lender shall notify the Borrower and the
Agent of any event occurring after the Effective Date entitling such Lender to
compensation under §4.5 or §4.6 as promptly as practicable. A certificate
setting forth any additional amounts payable pursuant to §§4.5 or 4.6 and a
brief explanation of such amounts which are due, submitted by any Lender or the
Agent to the Borrower, shall be prima facie evidence that such amounts are due
and owing.


 


§4.8.                       Indemnity.


 


In addition to the other
provisions of this Agreement regarding any such matters, the Borrower agrees to
indemnify each Lender and to hold each Lender harmless from and against any
loss or reasonable cost or expense (including loss of anticipated profits) that
such Lender may sustain or incur as a consequence of (a) a default by the
Borrower in payment of the principal amount of or any interest on any LIBOR
Rate Loans as and when due and payable, including any such loss or expense
caused by Borrower’s breach or other default and arising from interest or fees
payable by such Lender to lenders of funds obtained by it in order to maintain its
LIBOR Rate Loans, (b) a default by the Borrower in making a borrowing,
continuation or conversion after the Borrower has given (or is deemed to have
given) a Loan Request or a Conversion Request, and (c) the making of any
payment of a LIBOR Rate Loan or the making of any conversion of a LIBOR Rate
Loan to a Base Rate Loan on a day that is not the last day of the applicable
Interest Period with respect thereto, including interest or fees payable by
such Lender to lenders of funds obtained by it in order to maintain any such
LIBOR Rate Loan (including, but not limited to, any fees payable under §3.3(a)
hereof).


 


§4.9.                       Interest on Overdue Amounts.  Overdue principal and (to the extent
permitted by applicable law) interest on the Loans and all other overdue amounts
payable hereunder or under any of the other Loan Documents, including amounts
owed from and after the occurrence of an Event of Default, shall bear interest
compounded monthly and payable on demand at a rate per annum equal to four
percent (4%) above the Base Rate until such amount shall be paid in full (after
as well as before judgment) .


 


§4.10.                 Inability to Determine LIBOR Rate.  In the event, prior to the commencement of
any Interest Period relating to any LIBOR Rate Loan, the Agent shall reasonably
determine that adequate and reasonable methods do not exist for ascertaining
the LIBOR Rate that would otherwise determine the rate of interest to be
applicable to any LIBOR Rate Loan during any Interest Period, the Agent shall
forthwith give notice of such determination (which shall be conclusive and
binding on the Borrower) to the Borrower. In such event (a) any Loan Request
with respect to LIBOR Rate Loans shall be automatically withdrawn and shall be
deemed a request for Base Rate Loans, (b) each then outstanding LIBOR Rate Loan
will automatically, on the last day of the then current Interest Period
thereof, become a Base Rate Loan, and (c) the obligations of the Lenders to
make LIBOR Rate Loans shall be suspended until the Agent determines in good faith
that the circumstances giving rise to such suspension no longer exist,
whereupon the Agent shall so notify the Borrower.


 


§4.11.                 Illegality. 
Notwithstanding any other provisions herein, if any present or future
law, regulation, treaty or directive or any change in the interpretation or
application thereof shall


 


29

















 


make it unlawful for any Lender
to make or maintain LIBOR Rate Loans, such Lender shall forthwith give notice
of such circumstances to the Borrower and the Agent and thereupon (a) the
Commitment of such Lender to make LIBOR Rate Loans or convert Loans of another
Type to LIBOR Rate Loans shall forthwith be suspended and (b) the LIBOR Rate
Loans then outstanding shall be converted automatically to Base Rate Loans on
the last day of each Interest Period applicable to such LIBOR Rate Loans or
within such earlier period as may be required by law. The Borrower hereby
agrees promptly to pay to the Agent for the account of such Lender, upon
demand, any additional amounts necessary to compensate such Lender for any
costs incurred by such Lender in making any conversion in accordance with this
§4.11, including any interest or fees payable by such Lender to lenders of
funds obtained by it in order to make or maintain its LIBOR Rate Loans
hereunder. The Base Rate shall remain in effect thereafter unless and until
such Lender shall have determined in good faith (which determination shall be
conclusive and binding upon Borrower) that the aforesaid circumstances no
longer exist, whereupon such Lender shall notify Borrower and Agent and
Borrower may submit a Conversion Request in accordance with the provisions of
§ 2.6 hereof.


 


§4.12.                 Replacement of Lenders.  If Agent or any of the Lenders shall make a notice or demand upon
the Borrower pursuant to §4.3, §4.5, §4.6, or §4.11 based on circumstances or
laws which are not generally applicable to the Lenders organized under the laws
of the United States or any State thereof, the Borrower shall have the right to
replace such Lender with an Eligible Assignee selected by the Borrower and
approved by the Agent (which consent shall not be unreasonably withheld or
delayed).  In such event the assignment
shall take place as promptly as reasonably practicable on a date set by the
Agent at which time the assigning Lender and the Eligible Assignee shall enter
into an Assignment and Acceptance as contemplated by §19.1 (and clause (c)
or  (d) thereof shall not be applicable)
and the assigning Lender shall receive from the Eligible Assignee or the
Borrower a sum equal to the outstanding principal amount of the Loans owed to
the assigning Lender together with accrued interest thereon plus the accrued
commitment fee under §4.2 allocated to the assigning Lender, and all other
amounts due to such Lender, including any amounts pursuant to this §4, and the
replaced Lender shall be released from all of the obligations of a Lender
hereunder from and after the effective date of its replacement.


 


§5.                                STRUCTURED FINANCE COLLATERAL ASSETS; NO LIMITATION ON
RECOURSE


 


§5.1.                       Structured Finance Collateral Assets.


 


(a)  The Borrower represents and warrants that
each of the Structured Finance Collateral Assets listed on Schedule 1.1 will on
the Effective Date satisfy all of the conditions set forth in the definition of
Structured Finance Collateral Asset. The Lenders confirm that each of the
Structured Finance Collateral Assets   listed on Schedule 1.1 is, on the Effective Date, accepted as a
Structured Finance Collateral Asset. From time to time during the term of this
Agreement, upon the written consent of both (x) the Requisite Lenders in their
sole discretion and (y) each of Fleet National Bank, Wachovia Bank National
Association, and Sovereign Bank, to the extent each of them shall be as of such
date of determination a Lender holding a Commitment of at least $15,000,000, in
each case in their sole respective discretion (which in each case of (x) and
(y) consent shall not be unreasonably delayed), additional assets may become
Structured Finance


 


30

















 


Collateral Assets and certain
assets which previously satisfied the conditions set forth in the definition of
Structured Finance Collateral Asset may cease to be Structured Finance
Collateral Assets by virtue of payment of the underlying obligations, creation
of Liens or other reasons.  There shall
be attached to each Compliance Certificate delivered pursuant to §7.4(d) or
§7.13 an updated listing of the Structured Finance Collateral Assets relied
upon by the Borrower in computing the covenants set forth in §5 in such
Compliance Certificate. Compliance Certificates delivered pursuant to §2.5(a)
shall include an updated listing of the Structured Finance Collateral Assets
and shall include such updated listing whenever a redetermination of  the Structured Finance Collateral Assets
Values for all Structured Finance Collateral Assets based on such an updated
listing would result in a material decrease (from that shown on the most
recently delivered Compliance Certificate) in the Structured Finance Collateral
Assets Values for all Structured Finance Collateral Assets by virtue of payment
of the underlying obligations, creation of Liens or other reasons.


 


§5.2.                       Waivers by Requisite Lenders.  If any asset fails to satisfy any of the
requirements contained in the definition of Structured Finance Collateral Asset
then the applicable asset may nevertheless be deemed to be a Structured Finance
Collateral Asset hereunder if both (x) the Requisite Lenders in their sole
discretion and (y) each of Fleet National Bank, Wachovia Bank National
Association, and Sovereign Bank, to the extent each of them shall be as of such
date of determination a Lender holding a Commitment of at least $15,000,000, in
each case in their sole respective discretion, vote to accept such asset as a
Structured Finance Collateral Asset.


 


§5.3.                       Rejection of Structured Finance
Collateral Assets.  If at any time
the Agent reasonably determines that any asset listed as a Structured Finance
Collateral Asset by the Borrower does not satisfy all of the requirements of
the definition of Structured Finance Collateral Asset other than clause (v)
thereof (to the extent not waived by the Requisite Lenders pursuant to §5.2),
it may upon three (3) Business Day’s notice to the Borrower reject a Structured
Finance Collateral Asset by notice to the Borrower, and if the Agent so
requests the Borrower shall revise the applicable Compliance Certificate to
reflect the resulting change in the Structured Finance Collateral Asset Values.


 


§5.4.                       Change in Circumstances.  If at any time during the term of this
Agreement Borrower becomes aware that any of the applicable representations
contained in §6 are no longer accurate with respect to any Structured Finance
Collateral Asset, it will promptly so notify the Agent and either request a
waiver pursuant to §5.2 or confirm that such asset is no longer a Structured
Finance Collateral Asset.  If any waiver
so requested is not granted by the Requisite Lenders or the Agent, as
applicable, within ten (10) Business Days the Agent shall reject the applicable
Structured Finance Collateral Asset pursuant to §5.3.


 


§5.5.                       No Limitation on Recourse.  The Obligations are full recourse
obligations of the Borrower and of the Guarantors, and all of their respective
assets and other properties shall be available for the indefeasible payment in
full in cash and performance of the Obligations as and when due and payable.


 


§5.6.                       Additional Guarantors. (a)  If Borrower desires that an asset owned by a
Related Company which is not previously a Guarantor become a Structured Finance
Collateral Asset, then as a condition thereto the applicable Related Company
(x) shall be a direct or indirect


 


31

















 


Subsidiary of  Borrower or any Guarantor, and (y) shall
become a Guarantor upon delivery to the Agent of the following, all in form and
substance reasonably satisfactory to the Agent: (i) a supplement to this
Agreement executed and delivered by the such proposed Guarantor assenting to be
bound by all the terms of the Loan Documents as a Guarantor, and (ii) good
standing certificates, general partner certificates, secretary certificates,
opinions of counsel and such other documents as may be reasonably requested by
the Agent.  The Agent shall promptly
provide copies of said documents to the Lenders.


 


(b)  Borrower may transfer title to any
Structured Finance Collateral Asset owned by Borrower to a single purpose
limited liability company wholly-owned by Borrower provided that such limited
liability company (x) delivers to Agent the items described in clauses (i) and
(ii) of the preceding clause (a), all in form and substance reasonably
satisfactory to Agent, (y) becomes a Guarantor hereunder, and (z) executes the
Pledge Agreement as a “Pledgor” (as such term is defined in the Pledge
Agreement) and grants to the Agent, for the benefit of the Agent and the
Lenders, a first priority security interest in such Structured Finance
Collateral Asset and the proceeds thereof to secure payment of the Obligations
..


 


§6.                                REPRESENTATIONS AND WARRANTIES.  The Borrower and the Guarantors jointly and
severally represent and warrant to the Agent and each of the Lenders as
follows:


 


§6.1.                       Authority; Etc.


 


(a)  Organization; Good Standing. The Company (i)
is a Maryland corporation duly organized, validly existing and in good standing
under the laws of the State of Maryland, (ii) has all requisite power to own
its properties and conduct its business as now conducted and as presently
contemplated, and (iii) to the extent required by law is in good standing as a
foreign entity and is duly authorized to do business in the States in which any
of the Collateral is located and in each other jurisdiction where such
qualification is necessary except where a failure to be so qualified in such
other jurisdiction would not have a Material Adverse Effect.  The Borrower is a Delaware limited
partnership, and each of the Borrower and each Guarantor is duly organized,
validly existing and in good standing under the laws of the State of its
formation, has all requisite power to own its properties and conduct its
business as presently contemplated and is duly authorized to do business in the
States in which any of the Collateral owned by it is located and in each other
jurisdiction where such qualification is necessary except where a failure to be
so qualified in such other jurisdiction would not have a Material Adverse
Effect.


 


(b)  Authorization.  The execution, delivery and performance of this Agreement and the
other Loan Documents to which the Borrower is or is to become a party and the
transactions contemplated hereby and thereby (i) are within the authority of
the Borrower, (ii) have been duly authorized by all necessary proceedings on
the part of the Borrower and the Company as general partner of Borrower, (iii)
do not conflict with or result in any breach or contravention of any provision
of law, statute, rule or regulation to which the Borrower or the Company is
subject or any judgment, order, writ, injunction, license or permit applicable
to the Borrower or the Company and (iv) do not conflict with any provision of
the Borrower’s partnership agreement or Company’s charter documents or bylaws,
or any agreement (except agreements as to which such a conflict would not result
in a Material Adverse Effect) or other instrument binding upon, the Borrower or
the Company or to which any of their properties are


 


32

















 


subject. The execution,
delivery and performance of this Agreement or the other Loan Documents to which
any Guarantor is or is to become a party and the transactions contemplated
hereby and thereby (i) are within the authority of such Guarantor, (ii) have
been duly authorized by all necessary proceedings on the part of such
Guarantor, (iii) do not conflict with or result in any breach or contravention
of any provision of law, statute, rule or regulation to which such Guarantor is
subject or any judgment, order, writ, injunction, license or permit applicable
to such Guarantor and (iv) do not conflict with any provision of such
Guarantor’s charter documents or bylaws, partnership agreement, declaration of
trust, or any agreement (except agreements as to which such a conflict would
not result in a Material Adverse Effect) or other instrument binding upon such
Guarantor or to which any of such Guarantor’s properties are subject.


 


(c)  Enforceability.  The execution and delivery of this Agreement, the other Loan
Documents to which the Borrower is or is to become a party will result in valid
and legally binding obligations of the Borrower enforceable against it in
accordance with the respective terms and provisions hereof and thereof, except
as enforceability is limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting generally the enforcement of
creditors’ rights and except to the extent that availability of the remedy of
specific performance or injunctive relief is subject to the discretion of the
court before which any proceeding therefor may be brought. The execution and
delivery of this Agreement and the other Loan Documents to which any Guarantor
is or is to become a party will result in valid and legally binding obligations
of such Guarantor enforceable against such Guarantor in accordance with the
respective terms and provisions hereof and thereof, except as enforceability is
limited by bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting generally the enforcement of creditors’ rights and
except to the extent that availability of the remedy of specific performance or
injunctive relief is subject to the discretion of the court before which any
proceeding therefor may be brought.


 


§6.2.                       Governmental Approvals.  The execution, delivery and performance by
the Borrower and each Guarantor of this Agreement and the other Loan Documents
to which the Borrower or such Guarantor is or is to become a party and the
transactions contemplated hereby and thereby do not require the approval or
consent of, or filing with, any governmental agency or authority other than
those already obtained.


 


§6.3.                       Title to
Properties.


 


(a)  Either the Borrower or a Guarantor holds
good and unencumbered title to their respective legal and beneficial interest
in the Structured Finance Collateral Assets, subject to no Liens other than
those in favor of the Agent under the Loan Documents.


 


(b)  Except as indicated on Schedule 6.3 hereto,
the Borrower or a Subsidiary holds good and marketable fee simple title to, or
holds a marketable leasehold interest pursuant to a Ground Lease of,  all of the properties reflected in the
balance sheet of the Borrower as at December 31, 2002 or acquired since that
date (except properties sold or otherwise disposed of in the ordinary course of
business since that date).


 


§6.4.                       Financial Statements.  The following financial statements have been
furnished to the Agent.


 


33

















 


(a)  A balance sheet of the Company as of
December 31, 2002, and a statement of operations and statement of cash flows of
the Company for the fiscal year then ended, a balance sheet of the Borrower as
of  December 31, 2002, and a statement
of operations and statement of cash flows of the Borrower for the fiscal year
then ended, all accompanied by an auditor’s report prepared without
qualification by Ernst & Young. 
Such balance sheets and statements of operations and of cash flows have
been prepared in accordance with Generally Accepted Accounting Principles and
fairly present the financial condition of the Borrower and the Company,
respectively as at the close of business on the date thereof and the results of
operations and cash flows for the fiscal year then ended. There are no
contingent liabilities of the Borrower or the Company, respectively, as of such
date involving material amounts, known to the officers of the Company not
disclosed in said balance sheet and the related notes thereto.


 


(b)  A balance sheet and a statement of
operations and statement of cash flows of the Company and a balance sheet and a
statement of operations and statement of cash flows of the Borrower for each of
the fiscal quarters of the Company ended since December 31, 2002 but prior to
the Effective Date for which the Company has filed form 10-Q with the SEC, which
the Company’s Responsible Officer certifies has been prepared in accordance
with Generally Accepted Accounting Principles consistent with those used in the
preparation of the annual audited statements delivered pursuant to paragraph
(a) above and fairly represents the financial condition of the Company and the
Borrower, respectively, as at the close of business on the dates thereof and
the results of operations and of cash flows for the fiscal quarters then ended
(subject to year-end adjustments). There are no contingent liabilities of
the Borrower or the Company as of such dates involving material amounts, known
to the officers of the Company, not disclosed in such balance sheets and the
related notes thereto.


 


§6.5.                       No Material Changes, Etc.  Since June 30, 2003, there has occurred no material adverse
change in the financial condition or assets or business of the Borrower or the
Company as shown on or reflected in the balance sheet of the Borrower and the
Company as of June 30, 2003, or the statement of income for the fiscal year
then ended, other than changes in the ordinary course of business that have not
had any Material Adverse Effect either individually or in the aggregate.


 


§6.6.                       Franchises, Patents, Copyrights, Etc.


 


The Borrower and each Guarantor
possesses all franchises, patents, copyrights, trademarks, trade names,
licenses and permits, and rights in respect of the foregoing, adequate for the
conduct of its business substantially as now conducted without known conflict
with any rights of others, except to the extent the Borrower’s or such
Guarantor’s failure to possess the same does not have a Material Adverse
Effect.


 


§6.7.                       Litigation.  Except
as listed and described on Schedule 6.7 hereto, there are no actions, suits,
proceedings or investigations of any kind pending or, to Borrower’s knowledge,
threatened against the Borrower, any Guarantor or any of the Related Companies
before any court, tribunal or administrative agency or board that, if adversely
determined, might, either in any case or in the aggregate, have a Material
Adverse Effect or materially impair the right of the Borrower, any Guarantor or
any of the Related Companies to carry on business substantially as now
conducted by it, or which question the validity of this Agreement or any of the
other Loan Documents, any action taken or to be taken pursuant hereto or
thereto, or which would result in a Lien on any Structured Finance Collateral
Asset.


 


34

















 


§6.8.                       No Materially Adverse Contracts,
Etc.  Neither the Borrower nor the
Company nor any other Guarantor is subject to any charter, trust or other legal
restriction, or any judgment, decree, order, rule or regulation that has or is
expected in the future to have a Material Adverse Effect.  Neither the Borrower nor the Company is a
party to any contract or agreement that has or is expected, in the judgment of
the Company’s officers, to have any Material Adverse Effect.


 


§6.9.                       Compliance With Other Instruments,
Laws, Etc.  Neither the Borrower nor the
Company nor any other Guarantor is in violation of any provision of the
Borrower’s partnership agreement or of the Company’s or other Guarantor’s
charter documents, by-laws, or any agreement or instrument to which it
may be subject or by which it or any of its properties may be bound or any
decree, order, judgment, statute, license, rule or regulation, in any of the
foregoing cases in a manner that could result in the imposition of substantial
penalties or have a Material Adverse Effect.


 


§6.10.                 Tax Status.  Each of
the Borrower and the Company and each other Guarantor (a) has made or filed all
federal and state income and all other tax returns, reports and declarations
required by any jurisdiction to which it is subject, and (b) has paid all taxes
and other governmental assessments and charges shown or determined to be due on
such returns, reports and declarations, except those being contested in good
faith and by appropriate proceedings. There are no unpaid taxes in any material
amount claimed to be due by the taxing authority of any jurisdiction, and the
officers of the Company know of no basis for any such claim.


 


§6.11.                 Event of Default. No Default or Event
of Default has occurred and is continuing hereunder.  No “Default” or “Event of Default” (as such
terms are defined in the Unsecured Revolving Credit Facility) has occurred and
is continuing under the Unsecured Revolving Credit Facility. No “Default” or
“Event of Default” (as such terms are defined in the Term Loan Facility) has
occurred and is continuing under the Term Loan Facility.


 


§6.12.                 Investment Company Act.  Neither the Borrower nor the Company nor any
other Guarantor is an “investment company”, or an “affiliated company” or a
“principal underwriter” of an “investment company”, as such terms are defined
in the Investment Company Act of 1940.


 


§6.13.                 Absence of Financing Statements,
Etc.  There is no financing statement,
security agreement, chattel mortgage, real estate mortgage, equipment lease,
financing lease, option, encumbrance or other document existing, filed or
recorded with any filing records, registry, or other public office, that
purports to cover, affect or give notice of any present or possible future lien
or encumbrance on, or security interest in, any Structured Finance Collateral
Asset, other than as required by the Pledge and Security Agreement in favor of
the Agent.


 


§6.14.                 Status of the Company.  The Company (i) is a real estate investment trust as defined in
Section 856 of the Code (or any successor provision thereto), (ii) has not
revoked its election to be a real estate investment trust, (iii) has not
engaged in any “prohibited transactions” as defined in Section 856(b)(6)(iii)
of the Code (or any successor provision thereto), and (iv) for its current “tax
year” (as defined in the Code) is, and for all prior tax years subsequent to
its election to be a real estate investment trust has been, entitled to a
dividends paid deduction which meets the requirements of Section 857 of the
Internal Revenue Code.  The common stock
of the Company is listed for trading on the New York Stock Exchange.


 


35

















 


§6.15.                 Certain Transactions.  Except as set forth on Schedule 6.15 hereto, none of the officers
or employees of the Borrower or any Guarantor is presently a party to any
transaction with the Borrower or any Guarantor (other than for services as
employees, officers and trustees), including any contract, agreement or other
arrangement providing for the furnishing of services to or by, providing for
rental of real or personal property to or from, or otherwise requiring payments
to or from any officer, trustee or such employee or, to the knowledge of the
Borrower and the Company, any corporation, partnership, trust or other entity
in which any officer, trustee or any such employee or natural Person related to
such officer, trustee or employee or other Person in which such officer,
trustee or employee has a direct or indirect beneficial interest has a
substantial interest or is an officer or trustee.


 


§6.16.                 Benefit Plans; Multiemployer Plans;
Guaranteed Pension Plans.  As of the
date hereof, neither the Borrower nor any Guarantor nor any ERISA Affiliate
maintains or contributes to any Employee Benefit Plan, Multiemployer Plan or
Guaranteed Pension Plan, except as may be set forth on Schedule 6.16. To the
extent that Borrower or any Guarantor or any ERISA Affiliate hereafter
maintains or contributes to any Employee Benefit Plan or Guaranteed Pension
Plan, it shall at all times do so in compliance with §7.17 hereof. None of the
assets of the Borrower or any of the Guarantors is “plan assets” of any
Employee Benefit Plan for purposes of Title I of ERISA.


 


§6.17.                 Regulations U and X. 
No portion of any Loan is to be used for the purpose of purchasing or
carrying any “margin security” or “margin stock” as such terms are used in
Regulations U and X of the Board of Governors of the Federal Reserve System, 12
C.F.R. Parts 221 and 224.


 


§6.18.                 Environmental Compliance.  Except as disclosed in Schedule 6.18  hereto,
to the best knowledge of the Borrower:


 


(a)
The Borrower, the Guarantors and the Related Companies are in compliance with
all Environmental Laws pertaining to any hazardous waste, as defined by 42
U.S.C. §9601(5), any Hazardous Materials as defined by 42 U.S.C. §9601(14), any
pollutant or contaminant as defined by 42 U.S.C. §9601(33) or any toxic
substances, oil or hazardous materials or other chemicals or substances
regulated by any Environmental Laws (“Hazardous Materials”) the failure with
which to comply would have a Material Adverse Effect.  None of the Properties and no other property used by the
Borrower, the Guarantors or the Related Companies is included or proposed for
inclusion on the National Priorities List issued pursuant to the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 as amended
(“CERCLA”), or on the Comprehensive Environmental Response Compensation and
Liability Information System maintained by the United States Environmental
Protection Agency (the “EPA”) or on any analogous list maintained by any
other Governmental Authority and has not otherwise been identified by the EPA
as a potential CERCLA site.


 


(b)
The Borrower, the Guarantors and the Related Companies have not, at any time,
and, to the actual knowledge of the Borrower, no other Person has at any time,
used, handled, stored, buried, retained, refined, transported, processed,
manufactured, generated, produced, spilled, released, allowed to seep, escape
or leach, or pumped, poured, emitted, emptied, discharged, injected, dumped,
transferred or otherwise disposed of, any Hazardous


 


36

















 


Materials at or about
the Real Estate Assets or any other real property owned or occupied by the
Borrower, any Guarantor or any Related Company, except (i) for use and storage
for use of reasonable amounts of ordinary supplies and other substances
customarily used in the operation of commercial office buildings; provided,
however,  that
such use and/or storage for use is in substantial compliance with applicable
Environmental Law, or (ii) where such action is not reasonably expected to have
a Material Adverse Effect.


 


(c)
No actions, suits, or proceedings have been commenced, are pending or, to the
actual knowledge of the Borrower, are threatened in writing with respect to any
Environmental Law governing the use, manufacture, storage, treatment, Release,
disposal, transportation, or processing of Hazardous Materials with respect to
any Real Estate Asset or any part thereof which could have a Material Adverse
Effect. The Borrower, the Guarantors and the Related Companies have received no
written notice of and have no actual knowledge of any fact, condition,
occurrence or circumstance which could reasonably be expected to give rise to a
claim under or pursuant to any existing Environmental Law pertaining to
Hazardous Materials on, in, under or originating from any Real Estate Asset or
any part thereof or any other real property owned or occupied by the Borrower
or any Guarantor or arising out of the conduct of any Borrower or any
Guarantor, including claims for the presence of Hazardous Materials at any
other property, which in any case is reasonably expected to have a Material
Adverse Effect.


 


(d)                                 Other
than as set forth in reviews, reports and surveys copies of which have been
delivered to the Agent, there have  occurred no uses, manufactures, storage,
treatments, Releases, disposals, transportation, or processing of Hazardous
Materials with respect to any Real Estate Asset except those which, taken as a
whole, would not have a Material Adverse Effect.


 


§6.19.                 Subsidiaries and Affiliates.  The Borrower has no Subsidiaries except for
the Related Companies listed on Schedule 1.3 and does not have an ownership
interest in any entity whose financial statements are not consolidated with the
Borrower’s except for the Unconsolidated Entities listed on Schedule 1.3.  Except as set forth on Schedule 6.19: (a)
the Company is not a partner in any partnership other than Borrower and is not
a member of any limited liability company and (b) the Company owns no material
assets other than its partnership interest in Borrower.


 


§6.20.                 Loan Documents. 
All of the representations and warranties of the Borrower or any
Guarantor made in the other Loan Documents or any document or instrument
delivered or to be delivered to the Agent or the Lenders pursuant to or in
connection with any of such Loan Documents are true and correct in all material
respects.


 


§6.21.                 [Intentionally
Omitted].


 


§6.22.                 Indebtedness. 
The Borrower and the Guarantors have no Indebtedness except (a) as set
forth on Schedule 6.22 hereto and (b) as otherwise permitted by this
Agreement.  Schedule 6.22 hereto accurately
sets forth the outstanding principal amounts and the maturity dates of all
Indebtedness for borrowed money of the Borrower and the Guarantors and certain
of the Related Companies and identifies the holders of the obligations
thereunder as of the Effective Date.


 


37

















 


§6.23.                 Title/Status of Structured Finance
Assets.


 


(a)
                               [Intentionally
Omitted].


 


(b)                                 The
Borrower and the Guarantors have good title to their respective ownership
interests in each Structured Finance Collateral Asset, free and clear of any
Liens other than the Liens of the Loan Documents. Except to the extent, if any,
expressly set forth in the documents evidencing or securing such Structured
Finance Collateral Asset and the Borrower’s or the Guarantors’ interests
therein, which documents have been delivered to the Agent, (a) the Borrower and
the Guarantors have not waived, modified, altered, satisfied, cancelled or
subordinated any of documents evidencing or securing any of the Structured
Finance Collateral Assets in any material respect, and (b) the real property
underlying such Structured Finance Collateral Asset has not been released from
the lien of any such Structured Finance Collateral Asset, nor has any maker
been released from its obligations under any such Structured Finance Collateral
Asset.


 


(c)                                  To
the best knowledge of the Borrower and the Guarantors, each Structured Finance
Collateral Asset is the legal, valid and binding obligation of each party
obligated thereunder, enforceable against such party in accordance with its
terms, except as the enforcement thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting
creditors’ rights generally. Except as set forth on Schedule 6.23, each
Structured Finance Collateral Asset which is a Mortgage creates a valid Lien in
the property which is the subject of such Mortgage Note.


 


(d)                                 To
the actual knowledge of Borrower and the Guarantors, each Structured Finance
Collateral Asset was made in compliance with all applicable laws, and does not
violate any usury or similar law regulating the applicable maximum permitted
rates of interest for loans, extensions of credit or forbearances.


 


(e)                                  To
the actual knowledge of Borrower and the Guarantors, each Structured Finance
Collateral Asset evidences an undisputed, bona fide transaction completed in
accordance in all material respects with the terms and provisions contained in
any documents related thereto, and is genuine and free from adverse claims,
setoffs, default, defenses, retainages, holdbacks and conditions precedent of
any kind or character; and Borrower and the Guarantors have no notice from
underlying obligator contesting the validity or collectability of any such
Structured Finance Collateral Asset.


 


(f)                                    To
the actual knowledge of Borrower and the Guarantors, there is no proceeding
pending for the total or partial condemnation of any property subject to a
Structured Finance Collateral Asset; each property subject to such Structured
Finance Collateral Asset is being used for the operation of a property, is in good
repair and free and clear of any damage that would affect materially and
adversely the value of the property subject to such Structured Finance
Collateral Asset.


 


(g)                                 [Intentionally
Omitted].


 


(h)                                 Neither
Borrower nor the Guarantors nor any of their Subsidiaries has received notice
that any real property underlying a Structured Finance Collateral Asset
violates 


 


38



















 


or fails to conform with any law, ordinance,
regulation, standard, license or certificate in any manner that would cause a
Material Adverse Effect.


 


(i)                                     [Intentionally Omitted].


 


(j)                                     [Intentionally Omitted].


 


(k)                                  [Intentionally Omitted].


 


(l)                                     To the actual knowledge of Borrower and the
Guarantors, for those properties subject to a Structured Finance Collateral
Asset in which the respective maker holds a leasehold estate, (i) the related
Ground Lease is in full force and effect except as permitted by the applicable
Structured Finance Collateral Asset and has not been modified or amended in any
manner whatsoever, and (ii) there are no material defaults under such Ground
Lease and no event has occurred, which but for the passage of time, or notice,
or both, would constitute a material default under such Ground Lease.


 


(m)                               Except to the extent permitted under the
definition of “Structured Finance Collateral Asset,”(i) no Structured Finance
Collateral Asset is in default beyond the expiration of any applicable grace or
notice periods, and (ii) during the preceding twelve (12) months or such lesser
period as Borrower or Guarantor has owned the Structured Finance Collateral
Asset, there has been no default in the payment of regularly scheduled
principal and interest thereunder.


 


§7.                                AFFIRMATIVE COVENANTS OF THE BORROWER.  Borrower covenants and agrees as follows, so
long as any Loan or Note is outstanding or the Lenders have any obligations to
make Loans:


 


§7.1.                       Punctual Payment. 
The Borrower will unconditionally duly and punctually pay the principal
and interest on the Loans and all other amounts provided for in the Notes, this
Agreement, and the other Loan Documents all in accordance with the terms of the
Notes, this Agreement and the other Loan Documents.


 


§7.2.                       Maintenance of Office.  The Borrower will maintain its chief
executive office in New York, New York or at such other place in the United
States Of America as the Borrower shall designate upon written notice to the
Agent to be delivered within fifteen (15) days of such change, where notices,
presentations and demands to or upon the Borrower in respect of the Loan
Documents may be given or made.


 


§7.3.                       Records and Accounts.  The Borrower will, and will cause its Subsidiaries to, keep true
and accurate records and books of account in which full, true and correct
entries will be made in accordance with Generally Accepted Accounting
Principles.


 


§7.4.                       Financial Statements, Certificates and
Information.  The Borrower will deliver
to each of the Lenders:


 


(a)  as soon as practicable, but in any event not
later than ninety (90) days after the end of each fiscal year of the Borrower,


 


39

















 


(i)
the audited balance sheets of the Borrower and of the Company at the end of
such year, and the related audited statements of operations and statements of
cash flows for such year, each setting forth in comparative form the figures
for the previous fiscal year and all such statements to be in reasonable
detail, prepared in accordance with Generally Accepted Accounting Principles on
a consolidated basis including the Borrower and the Related Companies, and
accompanied by an auditor’s report prepared without qualification by Ernst
& Young or by another “Big Four” accounting firm, or, subject to Agent’s
approval granted or denied in its sole and absolute discretion, another
certified public accounting firm of recognized national standing; and


 


(ii)
to the extent available to the Borrower, with respect to the Structured Finance
Collateral Assets, annual operating and capital budgets, rent rolls (indicating
leasing status and rental rates, and pending lease expirations), management
reports and operating statements with respect to each property subject to a
Structured Finance Collateral Asset all to be held by the Agent and the Lenders
confidentially in accordance with standard practices;


 


(b)  as soon as practicable, but in any event not
later than forty-five (45) days after the end of each of the first three (3)
fiscal quarters of the Borrower,


 


(i)
copies of the unaudited balance sheets of the Borrower and of the Company as at
the end of such quarter, and the related unaudited statements of operations for
the portion of the Borrower’s fiscal year then elapsed, all in reasonable
detail and prepared in accordance with Generally Accepted Accounting
Principles, together with a certification by the principal financial or
accounting officer of the Company that the information contained in such
financial statements fairly presents the financial position of the Borrower and
of the Company on the date thereof (subject to year-end adjustments); provided,
however, that for so long as the Borrower and the Company are filing form 10-Q
with the Securities and Exchange Commission (“SEC”), the delivery of a copy
thereof pursuant to paragraph (e) of this §7.4 shall be deemed to satisfy this
clause (i) of this paragraph (b); and


 


(ii)
to the extent available to the Borrower, with respect to the Structured Finance
Collateral Assets, rent rolls (indicating leasing status and rental rates, and
pending lease expirations) and operating statements with respect to each
property subject to a Structured Finance Collateral Asset.


 


(c)  [Intentionally Omitted];


 


(d)  simultaneously with the delivery of the
financial statements referred to in subsections (a) and (b) above, a Compliance
Certificate signed by a Responsible Officer of the Company (on behalf of the
Borrower) and setting forth in reasonable detail computations evidencing
compliance with the covenants contained herein and (if applicable)
reconciliations to reflect changes in Generally Accepted Accounting Principles
since the relevant date;


 


40

















 


(e)  as soon as practicable, but in any event not
later than ninety (90) days after the end of each fiscal year of the Company,
copies of the Form 10-K statement filed with the SEC for such fiscal year, and
as soon as practicable, but in any event not later than forty-five (45) days
after the end of each fiscal quarter, copies of the Form 10-Q statement filed
with the SEC for such fiscal quarter, provided that in either case if the SEC
has granted an extension for the filing of such statements, Borrower shall
deliver such statements to the Agent simultaneously with the filing thereof
with the SEC;


 


(f)  promptly following the filing or mailing
thereof, copies of all other material of a financial nature filed with the SEC
or sent to the shareholders of the Company or to the limited partners of the
Borrower and copies of all corporate press releases promptly upon the issuance
thereof;


 


(g)  from time to time as the Agent may
reasonably request, all material notices, financial data and other information
delivered to them by the obligor under any Structured Finance Collateral Asset as
a condition of the contractual terms of such Structured Finance Collateral
Asset; and


 


(h)  from time to time such other financial data
and information as the Agent may reasonably request including, without
limitation, financial statements of any Unconsolidated Entities, it being
understood and agreed to by the Borrower and the Guarantors that any
information that the Borrower or any Guarantor may reasonably require or
otherwise request as a contractual right as a holder of a Structured Finance
Collateral Asset may be reasonably requested by the Agent provided that the
Borrower will not be in default hereunder if it fails to obtain same after
reasonable efforts.  All such
information shall be held by the Agent and Lenders in a confidential manner in
accordance with standard practices.


 


§7.5.                       Notices.


 


(a)  Defaults. 
The Borrower will promptly notify the Agent in writing (and the Agent
shall immediately thereafter notify the Lenders) of the occurrence of any
Default or Event of Default. If any Person shall give any notice or take any
other action in respect of a claimed default (whether or not constituting a
Default or an Event of Default) under any note, evidence of Indebtedness,
indenture or other obligation to which or with respect to which the Borrower,
Guarantor or any of the Related Companies is a party or obligor, whether as
principal or surety, and if the principal amount thereof exceeds $5,000,000,
and such default would permit the holder of such note or obligation or other
evidence of Indebtedness to accelerate the maturity thereof, the Borrower shall
forthwith give written notice thereof to the Agent and each of the Lenders,
describing the notice or action and the nature of the claimed default.


 


(b)  Environmental Events.  The Borrower will promptly notify the Agent
in writing (and the Agent shall promptly thereafter notify the Lenders) of any
of the following events: (i) upon Borrower’s obtaining knowledge of any
violation of any Environmental Law regarding any property which is subject to
any Structured Finance Collateral Asset or any Real Estate or Borrower’s
operations which violation could have a Material Adverse Effect; (ii) upon
Borrower’s obtaining knowledge of any potential or known Release, or threat of
Release, of any Hazardous Material at, from, or into any property which is
subject to any Structured Finance


 


41

















 


Collateral Asset or any Real Estate which it
reports in writing or is reportable by it in writing to any governmental
authority and which is material in amount or nature or which could materially
affect the value of such Structured Finance Collateral Asset or which could
have a Material Adverse Effect; (iii) upon Borrower’s receipt of any notice of
violation of any Environmental Laws or of any Release or threatened Release of
Hazardous Materials, including a notice or claim of liability or potential
responsibility from any third party (including without limitation any federal,
state or local governmental officials) and including notice of any formal
inquiry, proceeding, demand, investigation or other action with regard to (A)
Borrower’s or any Person’s operation of any property which is subject to any
Structured Finance Collateral Asset or any Real Estate if the same would have a
Material Adverse Effect, (B) contamination on, from or into any property which
is subject to any Structured Finance Collateral Asset or any Real Estate if the
same would have a Material Adverse Effect, or (C) investigation or remediation
of off-site locations at which Borrower or any of its predecessors are alleged
to have directly or indirectly disposed of Hazardous Materials; or (iv) upon
Borrower’s obtaining knowledge that any expense or loss has been incurred by
such governmental authority in connection with the assessment, containment,
removal or remediation of any Hazardous Materials with respect to which
Borrower, Guarantor or any of the Related Companies may be liable or for which
a lien may be imposed on a Structured Finance Collateral Asset or any property
which is subject to any Structured Finance Collateral Asset.


 


(c)  Notification of Liens Against Structured
Finance Collateral Assets or Other Material Claims.  The Borrower will, promptly upon becoming aware thereof, notify
the Agent in writing (and the Agent shall promptly thereafter notify the
Lenders) of any Liens placed upon or attaching to any Structured Finance
Collateral Assets or of any other setoff, claims (including environmental
claims), withholdings or other defenses to any Structured Finance Collateral
Asset.


 


(d)  Notice of Litigation and Judgments.  The Borrower will give notice to the Agent
in writing (and the Agent shall promptly thereafter notify the Lenders) within
fifteen (15) days of becoming aware of any litigation or proceedings threatened
in writing or any pending litigation and proceedings affecting any of the
Structured Finance Collateral Assets or affecting the Borrower, any Guarantor
or any of the Related Companies or to which the Borrower, any Guarantor or any
of the Related Companies is or is to become a party involving an uninsured
claim (or as to which the insurer reserves rights) against the Borrower, any
Guarantor or any of the Related Companies that at the time of giving of notice
could reasonably be expected to have a Material Adverse Effect, and stating the
nature and status of such litigation or proceedings. The Borrower will give
notice to the Agent, in writing, in form and detail satisfactory to the Agent,
within ten (10) days of any judgment not covered by insurance, final or
otherwise, against the Borrower in an amount in excess of $5,000,000.


 


§7.6.                       Existence; Maintenance of REIT Status;
Maintenance of Properties.  The Company
will do or cause to be done all things necessary to preserve and keep in full
force and effect its status as a “qualified real estate investment trust” under
§856 of the Code and the existence of Borrower as a Delaware limited
partnership.  The common shares of
beneficial interest of the Company will at all times be listed for trading on
either the New York Stock Exchange or one of the other major stock
exchanges.  The Borrower will do or
cause to be done all things necessary to preserve and keep in full force all of
its rights and franchises which in the


 


42

















 


 judgment of the Borrower may be necessary to properly and
advantageously conduct the businesses being conducted by it, the Company, any
of the Guarantors or any of the Related Companies. The Borrower (a) will cause
all of the properties used or useful in the conduct of the business of
Borrower, the Company, any of the Guarantors or any of the Related Companies to
be maintained and kept in good condition, repair and working order and supplied
with all necessary equipment, (b) will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Borrower may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times,
and (c) will continue to engage primarily in the businesses now conducted by it
and in related businesses.


 


§7.7.                       Insurance.  With
respect to the Real Estate Assets and other properties and businesses of
Borrower, the Guarantors and the Related Companies, the Borrower will maintain
or cause to be maintained insurance with financially sound and reputable
insurers against such casualties and contingencies as shall be in accordance
with the general practices of businesses engaged in similar activities in
similar geographic areas and in amounts, containing such terms, in such forms
and for such periods as may be reasonable and prudent.  Commercial general liability insurance shall
include an excess liability policy with limits of at least $50,000,000.


 


§7.8.                       Taxes.  The Borrower
will pay or will cause to be paid real estate taxes, other taxes, assessments
and other governmental charges against the Real Estate Assets and the
Structured Finance Collateral Assets (but shall have no obligation by reason of
this Section 7.8 to pay any taxes on real property other than properties owned
by the Borrower or any Related Company) before the same become delinquent, and
will duly pay and discharge, or cause to be paid and discharged, before the
same shall become overdue, all taxes, assessments and other governmental
charges imposed upon it and its other properties, sales and activities, or any
part thereof, or upon the income or profits therefrom, as well as all claims
for labor, materials, or supplies that if unpaid might by law become a lien or
charge upon any of its properties; provided that any such tax, assessment,
charge, levy or claim need not be paid if the validity or amount thereof shall
currently be contested in good faith by appropriate proceedings and if the Borrower
shall have set aside on its books adequate reserves with respect thereto; and
provided further that the Borrower will pay all such taxes, assessments,
charges, levies or claims forthwith upon the commencement of proceedings to
foreclose any lien that may have attached as security therefor.


 


§7.9.                       Inspection of Properties and Books.  The Borrower shall permit the Lenders,
through the Agent or any of the Lenders’ other designated representatives, to
examine and review any of the documentation related to any of the Structured
Finance Collateral Assets, to examine the books of account of the Borrower, the
Company, the other Guarantors and the Related Companies (and to make copies
thereof and extracts therefrom) and to discuss the affairs, finances and accounts
of the Borrower with, and to be advised as to the same by, its officers, all at
such reasonable times and intervals as the Agent or any Lender may reasonably
request.


 


§7.10.                 Compliance with Laws, Contracts,
Licenses, and Permits.  The Borrower
and the Company will comply, and will cause each Guarantor and all Related
Companies to comply, with (a) all applicable laws and regulations now or
hereafter in effect wherever its business is conducted, including all
Environmental Laws, (b) the provisions of all applicable partnership
agreements, charter documents and by-laws, (c) all agreements and instruments
to which it is a


 


43

















 


party or by which it or any of its Real
Estate Assets may be bound including Ground Leases, and (d) all applicable
decrees, orders, and judgments except (with respect to (a) through (d) above)
to the extent such non-compliance would not have a Material Adverse Effect. If
at any time any permit or authorization from any governmental Person shall
become necessary or required in order that the Borrower or any Guarantor may
fulfill or be in compliance with any of its obligations hereunder or under any
of the Loan Documents or under any of the Collateral Documents, the Borrower
will immediately take or cause to be taken all reasonable steps within the
power of the Borrower to obtain such authorization, consent, approval, permit
or license and furnish the Agent and the Lenders with evidence thereof.


 


§7.11.                 Use of Proceeds. 
Subject to the provisions of §2.5 hereof, the proceeds of the Loans may
be used by the Borrower to pay the costs and expenses of closing this Facility
and for making Structured Finance Investments, provided, however, that no
portion of any Loan may be used for the purpose of purchasing or carrying any
“margin security” or “margin stock” as such terms are used in Regulations U and
X of the Board of Governors of the Federal Reserve System, 12 C.F.R. Parts 221
and 224.


 


§7.12.                 [Intentionally
Omitted].


 


§7.13.                 Notices of Significant Transactions.  The Borrower will notify the Agent in
writing prior to the closing of any of the following transactions pursuant to a
single transaction or a series of related transactions:


 


(a)
The sale or transfer of one or more Real Estate Assets for an aggregate sales
price or other consideration of $25,000,000 or more.


 


(b)
The sale or transfer of the ownership interest of Borrower or any of the
Related Companies in any of the Related Companies or the Unconsolidated
Entities if the aggregate consideration received by the Borrower or the Related
Companies in connection with such transaction exceeds $15,000,000.


 


Each notice given pursuant to this §7.13
shall be accompanied by a Compliance Certificate including an updated list of
Structured Finance Collateral Assets and demonstrating in reasonable detail
compliance, after giving effect to the proposed transaction, with the covenants
contained in §9.1 through §9.5.


 


§7.14.                 Further
Assurance.  The Borrower and the Guarantors will
cooperate with the Agent and the Lenders and execute such further instruments
and documents and perform such further acts as the Agent and the Lenders shall
reasonably request to carry out the transactions contemplated by this Agreement
and the other Loan Documents.


 


§7.15.                 Environmental Indemnification..  The Borrower and the Guarantors jointly and
severally covenant and agree that they will indemnify and hold the Agent and
each Lender harmless from and against any and all claims, expense, damage, loss
or liability incurred by the Agent or any Lender (including all reasonable
costs of legal representation incurred by the Agent or any Lender, but
excluding, as applicable, for the Agent or a Lender any claim, expense, damage,
loss or liability as a result of the gross negligence or willful misconduct of
the Agent or such Lender) relating to (a) any Release or threatened Release of
Hazardous Materials on any


 


44

















 


property subject to any Structured Finance
Collateral Asset or any Real Estate; (b) any violation of any Environmental
Laws with respect to conditions at any property subject to any Structured
Finance Collateral Asset or any Real Estate or the operations conducted
thereon; or (c) the investigation or remediation of off-site locations at which
the Borrower or its predecessors are alleged to have directly or indirectly
disposed of Hazardous Materials. It is expressly acknowledged by the Borrower
and the Guarantors that this covenant of indemnification shall survive the
payment of the Loans and shall inure to the benefit of the Agent and the
Lenders, and their successors and assigns.


 


§7.16.                 Response
Actions.  The Borrower and the Guarantors jointly and severally covenant
and agree that if any Release or disposal of Hazardous Materials shall occur or
shall have occurred on any Real Estate if the same would have a Material
Adverse Effect, the Borrower will cause the prompt containment and removal of
such Hazardous Materials and remediation of such Real Estate as necessary to
comply with all Environmental Laws or to preserve the value of such Real Estate
to the extent necessary to avoid a Material Adverse Effect.


 


§7.17.                 Employee Benefit Plans.


 


(a)  Representation.  The Borrower, the Guarantors and their ERISA Affiliates do not
currently maintain or contribute to any Employee Benefit Plan, Guaranteed
Pension Plan or Multiemployer Plan, except as set forth on Schedule 6.16.


 


(b)  Notice. 
The Borrower will obtain the consent of the Agent prior to the
establishment of any Employee Benefit Plan or Guaranteed Pension Plan not
listed on Schedule 6.16 by the Borrower, any Guarantor or any ERISA Affiliate.


 


(c)  In General. 
Each Employee Benefit Plan maintained by the Borrower, any Guarantor or
any ERISA Affiliate will be operated in compliance in all material respects
with the provisions of ERISA and, to the extent applicable, the Code, including
but not limited to the provisions thereunder respecting prohibited
transactions.


 


(d)  Terminability of Welfare Plans.  With respect to each Employee Benefit Plan
maintained by the Borrower, any Guarantor or an ERISA Affiliate which is an
employee welfare benefit plan within the meaning of §3(1) or §3(2)(B) of ERISA,
each such plan provides that the Borrower, such Guarantor or such ERISA
Affiliate, as the case may be, has the right to terminate each such plan at any
time (or at any time subsequent to the expiration of any applicable bargaining
agreement) without liability other than liability to pay claims incurred prior
to the date of termination.


 


(e)  Multiemployer Plans.  Without the consent of the Agent, neither
the Borrower nor any Guarantor nor any ERISA Affiliate will enter into,
maintain or contribute to, any Multiemployer Plan other that a Multiemployer
Plan listed on Schedule 6.16.


 


(f)  Unfunded or Underfunded Liabilities.  Neither the Borrower nor any Guarantor nor
any ERISA Affiliate will, at any time, have accruing unfunded or underfunded
liabilities with respect to any Employee Benefit Plan, Guaranteed Pension Plan
or Multiemployer Plan which, in the aggregate, would exceed $5,000,000, and
each of the Borrower, any Guarantor and any ERISA Affiliate will take all
reasonable steps to prevent the occurrence of


 


45

















 


any condition with respect to any
Multiemployer Plan that would create a withdrawal liability in excess of
$5,000,000.


 


§7.18.                 Required Interest Rate Contracts.  During all periods in which the LIBOR Rate
(as determined in accordance with the terms of this Agreement) for Interest
Periods of one month exceeds seven per cent (7.0%), the Borrower shall maintain
in effect Interest Rate Contracts with counterparties and in form reasonably
satisfactory to the Agent covering that portion of Borrower’s Variable Rate
Indebtedness equal to the amount by which Borrower’s Variable Rate Indebtedness
(other than any such Variable Rate Indebtedness hedged by Interest Rate
Contracts with a term expiring no earlier than the earlier of the Maturity Date
or the maturity of the Indebtedness so hedged) exceeds 30% of Total Debt.


 


§7.19.                 Forward Equity Contracts.  If the Borrower shall enter into any forward
equity contracts, the Borrower shall only settle same by the delivery of stock.


 


§7.20.                 Title/Status of Structured Finance
Assets.


 


(a)                                  Borrower and the Guarantors
shall own and hold good title to their respective interest in each Structured
Finance Collateral Asset free and clear of any Liens other than the Liens of
the Loan Documents.  Borrower, the
Guarantors, and their Subsidiaries shall not waive, modify, alter, satisfy,
cancel or subordinate any Structured Finance Collateral Asset in any respect if
the effect of such waiver, modification, alteration, satisfaction, cancellation
or subordination is to cause a default under any covenant of this Agreement or
any of the other Loan Documents.


 


(b)                                 Each Structured
Finance Collateral Asset shall be the legal, valid and binding obligation of
each party obligated thereunder, enforceable against such party in accordance
with its terms, except as the enforcement thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting
creditors’ rights generally.  Each
Mortgage which is a Structured Finance Collateral Asset shall create a valid
Lien in the property which is the subject of the Mortgage Note.  Each Structured Finance Collateral Asset
shall be made in compliance with all applicable laws and shall not violate any
usury or similar law regulating the applicable maximum permitted rates of
interest of loans, extensions of credit or forbearances.  Each Structured Finance Collateral Asset
shall be free from adverse claims, setoffs, default, defenses, retainages,
holdbacks and conditions precedent of any kind or character.


 


§7.21.                 Other
Facilities  The
Borrower shall immediately inform the Agent of any amendment, supplement or
modification of the terms and conditions of either the Unsecured Revolving
Credit Facility or the Term Loan Facility.


 


§8.                                CERTAIN NEGATIVE COVENANTS OF THE BORROWER.  The Borrower covenants and agrees as
follows, so long as any Loan or Note is outstanding or the Lenders have any
obligation to make any Loans:


 


§8.1                          [Intentionally Omitted].


 


46

















 


§8.2.                       Restrictions on Investments.  The Borrower will not, and will not permit
Guarantor or any of the Related Companies to make or permit to exist or to
remain outstanding any Investment except Investments in:


 


(a)  marketable direct or guaranteed obligations
of the United States of America, Federal Home Loan Mortgage Corporation,
Federal National Mortgage Association or any agency or instrumentality of the
United States of America provided such obligations are backed by the full faith
and credit of the United States of America, that mature within one (1) year from
the date of purchase by the Borrower;


 


(b)  demand deposits, certificates of deposit,
money market accounts, bankers acceptances eurodollar time deposits and time
deposits of United States banks having total assets in excess of $1,000,000,000
or repurchase obligations with a term of not more than 7 days with such banks
for underlying securities of the type described in clause (a) of this §8.2;


 


(c)  securities commonly known as “commercial
paper” issued by a corporation organized and existing under the laws of the
United States of America or any state thereof that at the time of purchase have
been rated and the ratings for which are not less than “ P 1 “ if rated by
Moody’s Investors Services, Inc. , and not less than “A 1” if rated by Standard
and Poor’s and participations in short term commercial loans made to such
corporations by a commercial bank which provides cash management services to
the Borrower;


 


(d)  Investments existing or contemplated on the
date hereof and listed on Schedule 8.2(d) hereto;


 


(e)  Investments made in the ordinary course of
the Borrower’s business in Interest Rate Contracts;


 


(f)  [Intentionally Omitted];


 


(g)
direct Investments in class B (or better) office properties (including the
development of same) located in the greater New York City area, including fee
simple and leasehold interests, in Real Estate Effective Control Assets, and in
consolidated joint ventures in which the Borrower  or its wholly-owned Subsidiary owns at least a 75% beneficial
interest and has the right to control policy and management of the subject
joint venture; and


 


(h)
Investments in the following categories so long as the aggregate amount,
without duplication, of all Investments described in this paragraph (h) does
not exceed, at any time, twenty-five percent (25%) of Total Assets (the
“Permitted Investments Cap”) and the aggregate amount of each of the following
categories of Investments does not exceed the specified percentage of Total
Assets set forth in the following table:


 


47

















 


	
  Category of Investment

  	
   

  	
  Maximum
  Percentage of Total Assets

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Permitted
  Developments (calculated at total project cost)

  	
   

  	
  10

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Unconsolidated
  Entities primarily engaged in the business of development or ownership of class
  B (or better) office real estate located in the greater New York City area
  (calculated at book value of such Investment)

  	
   

  	
  20

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Investment in properties (including the development of same) acquired
  in accordance with the provisions of §1031 of the Code (single tenant, triple
  net leased to tenant rated “A” or better by Standard & Poor’s Ratings
  Group or Moody’s Investors Services, Inc., minimum remaining lease term of 15
  years)

  	
   

  	
  2

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Structured
  Finance Investments

  	
   

  	
  15

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Other
  Investments in Real Estate Assets (including land) and in entities primarily
  engaged in the business of owning such assets

  	
   

  	
  10

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Other
  Investments not otherwise specifically identified in this §8.2

  	
   

  	
  10

  	
  %

  



 


Notwithstanding the foregoing to the contrary, if, but only for so long
as either (x) all Indebtedness of the Unconsolidated Entities does not exceed
seventy-two percent (72%) of the aggregate dollar amount of the As-Is Values
for all Real Estate Assets of such Unconsolidated Entities or (y) Structured
Finance Investments do not exceed twelve percent (12%) of Total Assets, then


 


(i) the Permitted Investments Cap shall increase from twenty-five
percent (25%) of Total Assets to (A) during the 1221 Avenue of the Americas
Investment Period, thirty-nine percent (39%) of Total Assets, or (B) during all
other periods, thirty percent (30%) of Total Assets; and


 


(ii) the Maximum Percentage of Total Assets in respect of
Unconsolidated Entities (as described above) shall increase from twenty percent
(20%) to (A) during the 1221 Avenue of the Americas Investment Period, thirty
percent (30%), or (B) during all other periods, twenty-five percent (25%).


 


Notwithstanding anything in this Agreement to the contrary, none of the
provisions of § 8.2(h), and no Default or Event of Default arising out of a
breach of any of the provisions of § 8.2(h), may be amended, modified or waived
without the written consent of the Requisite Lenders.


 


48

















 


§8.3.                       Merger, Consolidation and Other Fundamental Changes.  The Borrower will not, and will not permit
the Company to, consolidate with or merge into any other Person or Persons, or
sell, convey, assign, transfer, lease or otherwise dispose of all or substantially
all of their respective business, property or fixed assets taken as a whole to
any other Person, provided, however, that this §8.3 shall not be applicable to
any merger or consolidation with respect to which all of the following are
satisfied: (1) the surviving entity is Borrower, the Company or any Guarantor
Subsidiary and there is no substantial change in senior management of the
Company, (2) the other entity or entities involved in such merger or
consolidation are engaged in the same line of business as Borrower, and (3)
following such transaction, the Borrower and the Company will not be in breach
of any of the covenants, representations or warranties of this Agreement.
Except as set forth on Schedule 6.19, the Company will not own or acquire any
material assets other than its partnership interests in the Borrower.


 


§8.4.                       Sale of
Collateral.  Neither the Borrower nor any Guarantor may
sell, transfer or otherwise dispose of any Collateral unless all conditions
precedent for the release of the Liens of the Secured Parties in such
Collateral set forth in §14.14(b) have occurred.


 


§8.5.                       Compliance with Environmental Laws.  The Borrower will not do, and will not
permit the Company, any Guarantor or any of the other Related Companies to do,
any of the following: (a) use any of the Real Estate or any portion thereof as
a facility for the handling, processing, storage or disposal of Hazardous
Materials except for immaterial amounts of Hazardous Materials used in the
routine maintenance and operation of the Real Estate and in compliance with
applicable law, (b) cause or permit to be located on any of the Real Estate any
underground tank or other underground storage receptacle for Hazardous
Materials except in material compliance with Environmental Laws, (c) generate
any Hazardous Materials on any of the Real Estate except in material compliance
with Environmental Laws, or (d) conduct any activity at any Real Estate or use
any Real Estate in any manner so as to cause a Release.


 


§8.6.                       Distributions. 
Borrower shall not permit the total Distributions by it and the Company
during any fiscal year to exceed 90% of Funds from Operations for such year,
except that such limitation on Distributions may be exceeded to the extent
necessary for the Company to maintain its REIT status.  During any period when any Default or Event
of Default has occurred and is continuing the total Distributions by the
Borrower and the Company will not exceed the minimum amount necessary for the
Company to maintain its REIT status. 
The Guarantor Subsidiaries will not make any Distributions except
Distributions to Borrower or to the Company or to any Guarantor.


 


§8.7.                       Preferred
Distributions.  During any period when any Event of Default
has occurred and is continuing no Preferred Distributions will be made.


 


§8.8.                       Preferred Redemptions.  No payments of cash or cash equivalents by Borrower or the Company
as consideration for the mandatory redemption or retirement of any preferred
shares of beneficial interest in the Company, or any preferred units of limited
partnership interest in Borrower, shall be made out of the proceeds of
Indebtedness of the Borrower or any Guarantor.


 


49

















 


§9.                                FINANCIAL COVENANTS OF THE BORROWER.  The Borrower and the Company covenant and
agree as follows, so long as any Loan or Note is outstanding or any Lender has
any obligation to make any Loan:


 


§9.1.                       Adjusted
Unsecured Debt Coverage.  The Borrower will not at any time permit
Adjusted Unsecured Debt to exceed 65% of Adjusted Unencumbered Asset Value.


 


§9.2.                       Minimum Debt Service Coverage.  The Borrower will not at any time permit the
ratio of Adjusted EBITDA for the Borrower, the Company and the Related
Companies (on a consolidated basis in accordance with GAAP), to Interest
Expense for the Borrower, the Company and the Related Companies (on a
consolidated basis in accordance with GAAP), to be less than 2.0 to 1.0 for any
fiscal quarter of Borrower.


 


§9.3.                       Total Debt to Total Assets.  The Borrower and the Company will not at any
time permit Total Debt to exceed fifty-five percent (55%) of Total Assets.


 


§9.4.                       Minimum
Tangible Net Worth.  The Borrower and the Company will not at any
time permit the Tangible Net Worth of the Borrower and the Company to be less
than $611,000,000 plus seventy-five percent (75%) of Net Offering Proceeds.


 


§9.5.                       Adjusted EBITDA to Fixed Charges.  The Borrower and the Company will not at any
time permit the ratio of its Adjusted EBITDA for the Borrower, the Company and
the Related Companies (on a consolidated basis in accordance with GAAP) to Fixed
Charges of the Borrower, the Company and the Related Companies (on a
consolidated basis in accordance with GAAP) to be less than 1.75 to 1.0 for any
fiscal quarter.


 


§9.6.                       Aggregate Occupancy Rate.  The Borrower will not at any time permit the
Aggregate Occupancy Rate to be less than eighty-five percent (85%).


 


§9.7.                       Value of All Unencumbered Assets.  (i)
The Borrower will not at any time permit the outstanding balance of Unsecured
Indebtedness to be greater than fifty five percent (55%) of the Value of All
Unencumbered Assets.


 


(ii)
The Borrower will not at any time permit the Value of All Unencumbered Assets
to be less than or equal to $275,000,000.


 


§9.8.                       Indebtedness
of the 1221 Avenue of the Americas Investment Party.  (i) During the 1221 Avenue of the Americas
Investment Period, Indebtedness of the 1221 Avenue of the Americas Investment
Owner will not at any time exceed twenty-five percent (25%) of the aggregate
Adjusted Net Operating Income for the immediately preceding fiscal quarter,
annualized, for the Real Estate Asset constituting the premises located at 1221
Avenue of the Americas, New York, New York, divided by eight percent (8.0%).


 


(ii)
During the 1221 Avenue of the Americas Investment Period, the aggregate
Indebtedness of the Unconsolidated Entities will not at any time exceed
seventy-two percent (72%) of the aggregate dollar amount of the As-Is Values
for all Real Estate Assets of such Unconsolidated Entities as of such time.


 


50

















 


§9.9.                       Amendments and Modifications to §9.  (i) Notwithstanding anything in this
Agreement to the contrary, none of the provisions of any of §§9.1 through 9.8
of this Agreement, and no Default or Event of Default arising out of a breach
of any of the provisions of any of §§9.1 through 9.8 of this Agreement, may be
amended, modified or waived without the written consent of the Requisite
Lenders.


 


(ii)  For purposes of the foregoing §§9.1 through
9.8 of this Agreement, if any change in Generally Accepted Accounting Principles
after the Effective Date results in a material change in the calculation to be
performed in any such section solely as a result of such change in Generally
Accepted Accounting Principles, the Lenders and the Borrower shall negotiate in
good faith a modification of any such covenants so that the economic effect of
the calculation of such covenant(s) using Generally Accepted Accounting
Principles as so changed is as close as feasible to what the economic effect of
the calculation of such covenant(s) would have been using Generally Accepted
Accounting Principles as in effect as of the Effective Date.


 


§10.                          CONDITIONS TO EFFECTIVENESS.  This Agreement shall become effective when
each of the following conditions precedent have been satisfied:


 


§10.1.                 Loan Documents. 
Each of the Loan Documents shall have been duly executed and delivered
by the respective parties thereto and shall be in full force and effect.


 


§10.2.                 Certified Copies of Organization
Documents; Good Standing Certificates. 
The Agent shall have received (i) a Certificate of the Company to which
there shall be attached complete copies of the Borrower’s Limited Partnership
Agreement and its Certificate of Limited Partnership, certified as of a recent
date by the Secretary of State of Delaware, (ii) Certificates of Good Standing
for the Borrower from the State of New York, (iii) a copy of the Company’s
articles of incorporation certified as of a recent date by the Maryland
Secretary of State, (iv) Certificates of Good Standing for the Company from the
State of Maryland and each State in which a Structured Finance Collateral Asset
is located, and (v) certificates of good standing and certificates from the
Borrower certifying as to true and complete copies of articles of
incorporation, limited liability company agreements, partnership agreements or
certificates of limited partnership, as the case may be, of each of the other
Guarantors.


 


§10.3.                 By-laws; Resolutions.  All action on the part of the Borrower and each Guarantor
necessary for the valid execution, delivery and performance by the Borrower and
each Guarantor of this Agreement and the other Loan Documents to which it is or
is to become a party shall have been duly and effectively taken, and evidence
thereof satisfactory to the Agent shall have been provided to the Agent. The
Agent shall have received from the Company true copies of its by-laws and the
resolutions adopted by its Board of Directors authorizing the transactions
described herein, each certified by its secretary to be true and complete and
in effect on the Effective Date.


 


§10.4.                 Incumbency Certificate; Authorized
Signers.  The Agent shall have
received from the Company an incumbency certificate, dated as of the Effective
Date, signed by a duly authorized officer of the Company and giving the name
and bearing a specimen signature of each individual who shall be
authorized:  (a) to sign, in the name
and on behalf of the Company (in its own capacity and as general partner on
behalf of Borrower and on behalf of each Guarantor


 


51

















 


which is a partnership), each of the Loan
Documents to which the Borrower or any Guarantor is or is to become a party;
(b) to make Loan Requests and Conversion Requests; and (c) to give notices and
to take other action on behalf of the Borrower under the Loan Documents.


 


§10.5.                 Title Insurance; Lien Searches.  The Agent shall have received (i) reasonably
satisfactory evidence of title insurance respecting each of the properties
subject to the Structured Finance Collateral Assets by way of copies of the
most recent fully effective title insurance policies (or marked and signed
title insurance binders to the extent such policies have not been issued or are
not other otherwise available), (ii) reasonably satisfactory evidence of
insurance required under §7.7, (iii) reasonably satisfactory current Uniform
Commercial Code lien searches on the Borrower and each of the Guarantors in
such jurisdictions as the Agent may reasonably require, and (iv) evidence
reasonably satisfactory to the Agent that the Agent (for the benefit of the
Secured Parties) has a valid and perfected first priority security interest in
the Collateral, including (x) such documents duly executed by the Borrower and
each Guarantor as the Agent may reasonably request with respect to the
perfection of its security interests in the Collateral (including financing
statements under the UCC, security agreements and other applicable documents
under the laws of any jurisdiction with respect to the perfection of Liens
created by the Pledge and Security Agreement) and (y) all notes and other
instruments representing Collateral (in form and substance reasonably
satisfactory to the Agent) being pledged pursuant to the Pledge and Security
Agreement duly endorsed in favor of the Agent or in blank.


 


§10.6.                 Opinions of Counsel Concerning
Organization, Loan Documents and Collateral.  Each of the Lenders and the Agent shall have received favorable
opinions from Borrower’s counsel addressed to the Lenders and the Agent and
dated as of the Effective Date, in form and substance satisfactory to the
Agent.


 


§10.7.                 Payment of Fees. 
The Borrower shall have paid to the Lenders the fees pursuant to §4.1
and shall have paid all other expenses as provided in §15 hereof then
outstanding.


 


§10.8.                 Existing Agreement.  There shall exist no Default or Event of Default as defined in the Existing
Credit Agreement.


 


§11.                          CONDITIONS TO ALL CREDIT ADVANCES.  The obligations of the Lenders to make any
Loan, whether on or after the Effective Date, shall also be subject to the
satisfaction of the following conditions precedent:


 


§11.1.                 Representations True; No Event of
Default; Compliance Certificate. 
Each of the representations and warranties of the Borrower and each
Guarantor contained in this Agreement, the other Loan Documents or in any
document or instrument delivered pursuant to or in connection with this
Agreement shall be true as of the date as of which they were made and shall
also be true at and as of the time of the making of such Loan, with the same
effect as if made at and as of that time (except (i) to the extent of changes
resulting from transactions contemplated or permitted by this Agreement and the
other Loan Documents, (ii) to the extent of changes occurring in the ordinary
course of business that singly or in the aggregate are not materially adverse,
and (iii) to the extent that such representations and warranties relate
expressly to an earlier date); the Borrower shall have performed and complied
with all terms and conditions


 


52

















 


herein required to be performed by it or
prior to the Borrowing Date of such Loan; and no Default or Event of Default
shall have occurred and be continuing on the date of any Loan Request or on the
Borrowing Date of such Loan.  Each of
the Lenders shall have received a Compliance Certificate of the Borrower signed
by a Responsible Officer to such effect, which certificate will include,
without limitation, computations evidencing compliance with the covenants contained
in §9.1 through §9.5 hereof after giving effect to such requested Loan.


 


§11.2.                 No Legal Impediment.  No change shall have occurred in any law or regulations
thereunder or interpretations thereof that in the reasonable opinion of any
Lender would make it illegal for such Lender to make such Loan.


 


§11.3.                 Proceedings and Documents.  All proceedings in connection with the
transactions contemplated by this Agreement, the other Loan Documents and all
other documents incident thereto shall be reasonably satisfactory in substance
and in form to the Agent, and the Lenders shall have received all information
and such counterpart originals or certified or other copies of such documents
as the Agent may reasonably request.


 


§12.                          EVENTS OF DEFAULT; ACCELERATION; ETC


 


§12.1.                 Events of Default and Acceleration.  If any of the following events (“Events of
Default” or, if the giving of notice or the lapse of time or both is required,
then, prior to such notice or lapse of time, “Defaults”) shall occur:


 


(a)  the Borrower shall fail to pay any principal
of the Loans when the same shall become due and payable;


 


(b)  the Borrower shall fail to pay any interest
on the Loans or any other sums due hereunder or under any of the other Loan
Documents (other than principal) within five (5) days after the same shall
become due and payable;


 


(c)  the Borrower or the Company shall fail to
comply with any of its covenants contained in §7.5, the first sentence of §7.6,
§7.7, §7.13, §7.20, §8 or §9 hereof or;


 


(d)  the Borrower or any Guarantor shall fail to
perform any other term, covenant or agreement contained herein or in any of the
other Loan Documents (other than those specified elsewhere in this §12) for
thirty (30) days after written notice of such failure from Agent to the Borrower;


 


(e)  any representation or warranty of the
Borrower or any Guarantor in this Agreement or in any of the other Loan
Documents or in any other document or instrument delivered pursuant to or in
connection with this Agreement, shall prove to have been false in any material
respect upon the date when made or deemed to have been made or repeated;


 


(f)
(i) any “Event of Default”, as such term is defined in the Unsecured Revolving
Credit Facility, shall have occurred and be continuing under the Unsecured Revolving
Credit Facility, whether or not the maturity of any obligations issued
thereunder has been accelerated; (ii) any “Event of Default”, as such term is
defined in the Term Loan Facility, shall have occurred and be continuing under
the Term Loan Facility, whether or not the maturity of any 


 


53

















 


obligations issued thereunder has been
accelerated; or (iii) the Borrower, the Company, any Guarantor, any of the
Related Companies or any Unconsolidated Entity shall fail to pay at maturity,
or within any applicable period of grace, any Recourse Indebtedness (other than
the Unsecured Revolving Credit Facility or the Term Loan Facility), or shall
fail to observe or perform any material term, covenant or agreement contained
in any agreement by which it is bound, evidencing or securing Recourse
Indebtedness (other than the Unsecured Revolving Credit Facility or the Term
Loan Facility) for such period of time as would permit (assuming the giving of
appropriate notice if required) the holder or holders thereof or of any
obligations issued thereunder to accelerate the maturity thereof, and in any
event, such failure shall continue for thirty (30) days, unless the aggregate
amount of all such defaulted Recourse Indebtedness is less than $10,000,000.00,
provided, however, that defaulted Recourse Indebtedness of an
Unconsolidated Entity shall only be included, for purposes of determining
whether the aggregate amount of all such defaulted Recourse Indebtedness is
less than $10,000,000, to the extent, if any, that said Recourse Indebtedness
is Recourse, directly or indirectly, to Borrower, any Guarantor or any Related
Company or any of their respective assets (other than their respective
interests in such Unconsolidated Entity), provided, further, however, that
Indebtedness of any Unconsolidated Entity in or to which Borrower, any
Guarantor or any Related Company has made a Structured Finance Investment shall
not be considered Indebtedness for purposes of this § 12.1(f) (For purposes of
this § 12.1(f) “Recourse” shall mean any obligation or liability except an
obligation or liability with respect to which recourse for payment is
contractually limited (except for customary exclusions) to specifically
identified assets only);


 


(g)  the Borrower, the Company, any Guarantor,
any of the Related Companies or any Unconsolidated Entity shall fail to pay at
maturity, or within any applicable period of grace, any Indebtedness other than
Recourse Indebtedness, or shall fail to observe or perform any material term,
covenant or agreement contained in any agreement by which it is bound,
evidencing or securing Indebtedness other than Recourse Indebtedness for such
period of time as would permit (assuming the giving of appropriate notice if
required) the holder or holders thereof or of any obligations issued thereunder
to accelerate the maturity thereof, and in any event, such failure shall
continue for thirty (30) days, unless the aggregate amount of all such
defaulted Indebtedness other than Recourse Indebtedness plus the amount of any
unsatisfied judgments is less than $25,000,000.00, provided, however,
that defaulted Indebtedness other than Recourse Indebtedness of any
Unconsolidated Entity in which Borrower and/or any Guarantor and/or any Related
Company (x) owns less than fifty percent (50%) of the equity interest and (y)
has no power to control the management and policies of such Unconsolidated
Entity (any such defaulted Indebtedness, “Special Nonrecourse Indebtedness”)
shall not be included for purposes of determining whether the aggregate amount
of defaulted Indebtedness other than Recourse Indebtedness plus the amount of
any unsatisfied judgments is less than $25,000,000.00 unless and until the
aggregate amount of Borrower’s and/or any Guarantor’s and/or any Related
Company’s pro-rata share of such Special Nonrecourse Indebtedness exceeds ten
percent (10%) of the Total Assets, provided, further, however, that
Indebtedness of any Unconsolidated Entity in or to which Borrower, any
Guarantor or any Related Company has made a Structured Finance Investment shall
not be considered Indebtedness for purposes of this § 12.1(g);


 


(h)  (i) any of the Borrower, the Company or any
Guarantor shall make an assignment for the benefit of creditors, or admit in writing
its inability to pay or generally fail to pay its debts as they mature or
become due, or shall petition or apply for the appointment of a


 


54

















 


trustee or other custodian, liquidator or
receiver of any substantial part of its properties or shall commence any case
or other proceeding under any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution or liquidation or similar law of
any jurisdiction, now or hereafter in effect, or shall take any action to
authorize or in furtherance of any of the foregoing, or if any such petition or
application shall be filed or any such case or other proceeding shall be
commenced against any such Person and such Person shall indicate its approval
thereof, consent thereto or acquiescence therein, or (ii) any of the events
described in clause (i) of this paragraph shall occur with respect to any other
Related Company or any Unconsolidated Entity and such event shall have a
Material Adverse Effect;


 


(i)
(i) a decree or order is entered appointing any such trustee, custodian,
liquidator or receiver or adjudicating the Borrower, the Company, or any
Guarantor bankrupt or insolvent, or approving a petition in any such case or
other proceeding, or a decree or order for relief is entered in respect of the
Borrower, the Company, or any Guarantor in an involuntary case under federal
bankruptcy laws as now or hereafter constituted or (ii) any of the events
described in clause (i) of this paragraph shall occur with respect to any other
Related Company or any Unconsolidated Entity and such event shall have a
Material Adverse Effect;


 


(j)  there shall remain in force, undischarged,
unsatisfied and unstayed, for more than thirty days, whether or not consecutive,
any uninsured final judgment against the Borrower that, with other outstanding
uninsured final judgments, undischarged, against the Borrower, the Company or
any of the Related Companies, exceeds in the aggregate $5,000,000.00;


 


(k)  if any of the Loan Documents or any material
provision of any Loan Documents shall be unenforceable, cancelled, terminated,
revoked or rescinded otherwise than in accordance with the terms thereof or
with the express prior written agreement, consent or approval of the Agent, or
any action at law, suit or in equity or other legal proceeding to make
unenforceable, cancel, revoke or rescind any of the Loan Documents shall be
commenced by or on behalf of the Borrower or any Guarantor, or any court or any
other governmental or regulatory authority or agency of competent jurisdiction
shall make a determination that, or issue a judgment, order, decree or ruling
to the effect that, any one or more of the Loan Documents is illegal, invalid
or unenforceable in accordance with the terms thereof;


 


(l)  one or more ERISA Events occurs which
individually or in the aggregate results in or might reasonably be expected to
result in liability of the Borrower or any of its ERISA Affiliates in excess of
$5,000,000 at any one time during the term of this Agreement; or if, at any one
time, there exists an amount of unfunded pension liabilities (as defined in
Section 4001(a)(18) of ERISA), individually or in the aggregate for all
Guaranteed Pension Plans (excluding for purposes of such computation any Guaranteed
Pension Plans with respect to which assets exceed benefit liabilities), which
exceeds $5,000,000;


 


(m)  the Borrower or any Guarantor shall be
indicted for a federal crime, a punishment for which could include the
forfeiture of any assets of the Borrower or such Guarantor;


 


(n)  the Borrower shall fail to pay, observe or
perform any term, covenant, condition or agreement contained in any agreement,
document or instrument evidencing,


 


55

















 


securing or otherwise relating to any
Indebtedness of the Borrower to any Lender (other than the Obligations) within
any applicable period of grace provided for in such agreement, document or
instrument;


 


(o)  any Material Adverse Effect shall occur;


 


(p)  any “Event of Default”, as defined in any of
the other Loan Documents shall occur; or


 


(q)
any Collateral Document shall for any reason cease to create a valid Lien on
any of the Collateral purported to be covered thereby or, except as permitted
by the Loan Documents, such Lien shall cease to be a perfected and first
priority Lien or the Borrower or any Guarantor shall so state in writing;


 


then, and in any such event, so long as the
same may be continuing, the Agent may, and upon the request of the Requisite
Lenders shall, by notice in writing to the Borrower declare all amounts owing
with respect to this Agreement, the Notes and the other Loan Documents to be,
and they shall thereupon forthwith become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by the Borrower and each Guarantor; provided that upon
the occurrence of any Event of Default specified in §§12.1(h) or 12.1(i), all
such amounts shall become immediately due and payable automatically and without
any requirement of notice from the Agent or action by the Requisite Lenders.


 


§12.2.                 Termination of Commitments.  If any one or more Events of Default
specified in §12.1(h) or §12.1(i) shall occur, any unused portion of the Commitments
hereunder shall forthwith terminate and the Lenders shall be relieved of all
obligations to make Loans to the Borrower. 
If any other Event of Default shall have occurred and be continuing, the
Agent, at the direction of the Majority Lenders, may by notice to the Borrower
terminate the unused portion of the Commitments hereunder and upon such notice
being given such unused portion of the Commitments hereunder shall terminate
immediately and the Lenders shall be relieved of all further obligations to
make Loans.  No termination of the
Commitments hereunder shall relieve the Borrower of any of the Obligations or
any of its existing obligations to any Lender arising under other agreements or
instruments.


 


§12.3.                 Remedies.  In case
any one or more of the Events of Default shall have occurred, and whether or
not the Requisite Lenders shall have accelerated the maturity of the Loans
pursuant to §12.1, each Lender, if owed any amount with respect to the Loans,
may, with the consent of the Requisite Lenders, direct the Agent to proceed to
protect and enforce the rights and remedies of the Agent and the Lenders under
this Agreement, the Notes, the Collateral Documents or any of the other Loan
Documents by suit in equity, action at law or other appropriate proceeding,
whether for the specific performance of any covenant or agreement contained in
this Agreement, the Collateral Documents, the other Loan Documents or any
instrument pursuant to which the Obligations are evidenced and, if any amount
shall have become due, by declaration or otherwise, to proceed to enforce the
payment thereof or any other legal or equitable right of such Lender. No remedy
herein conferred upon any Lender or the Agent or the holder of any Note is
intended to be exclusive of any other remedy and each and


 


56

















 


every remedy shall be cumulative and shall be
in addition to every other remedy given hereunder or now or hereafter existing
at law or in equity or by statute or any other provision of law.


 


§12.4.                 Distribution of Enforcement Proceeds.  In the event that, following the occurrence
or during the continuance of any Default or Event of Default, the Agent or any
Lender as the case may be, receives any monies in connection with the
enforcement of any of the Loan Documents, such monies shall be distributed for
application as follows:


 


(a)  First, to the payment of, or (as the case
may be) the reimbursement of the Agent for or in respect of all reasonable
costs, expenses, disbursements and losses which shall have been incurred or
sustained by the Agent in connection with the collection of such monies by the
Agent, for the exercise, protection or enforcement by the Agent of all or any
of the rights, remedies, powers and privileges of the Agent or the Lenders
under this Agreement or any of the other Loan Documents or in support of any
provision of adequate indemnity to the Agent against any taxes or liens which
by law shall have, or may have, priority over the rights of the Agent to such
monies;


 


(b)  Second, to all other Obligations in such
order or preference as the Requisite Lenders may determine; provided, however,
that distribution in respect of such Obligations shall be made among the
Lenders pro rata in accordance with each Lender’s respective Commitment
Percentage;


 


(c)  Third, upon payment and satisfaction in
full, or other provisions for payment in full satisfactory to all Lenders and
the Agent, of all of the Obligations, to the payment of any obligations
required to be paid pursuant to §9-615(a)(3) and (b) of the Uniform Commercial
Code of the State of New York; and


 


(d)  Fourth, the excess, if any, shall be
returned to the Borrower or to such other Persons as are legally entitled
thereto.


 


§13.                          SETOFF.  During the
continuance of any Event of Default, any deposits (general or specific, time or
demand, provisional or final, regardless of currency, maturity, or the branch
of where such deposits are held) or other sums credited by or due from any of
the Lenders or any Affiliated Lender to the Borrower, the Company or any of the
other Guarantors and any securities or other property of the Borrower, the
Company or any of the other Guarantors in the possession of such Lender or
Affiliated Lender may be applied to or set off against the payment of Obligations
and any and all other liabilities, direct, or indirect, absolute or contingent,
due or to become due, now existing or hereafter arising, of the Borrower to
such Lender. Each of the Lenders agrees with each other Lender that (a) if an
amount to be set off is to be applied to Indebtedness of the Borrower, the
Company or any of the other Guarantors to such Lender, other than Indebtedness
evidenced by the Notes held by such Lender, such amount shall be applied
ratably to such other Indebtedness and to the Indebtedness evidenced by all
such Notes held by such Lender, and (b) if such Lender shall receive from the
Borrower, the Company or any of the other Guarantors, whether by voluntary
payment, exercise of the right of setoff, counterclaim, cross action,
enforcement of the claim evidenced by the Notes held by such Lender by
proceedings against the Borrower, the Company or any of the other Guarantors at
law or in equity or by proof thereof in bankruptcy, reorganization,
liquidation, receivership or similar


 


57

















 


proceedings, or otherwise, and shall retain
and apply to the payment of the Note or Notes held by such Lender any amount in
excess of its ratable portion of the payments received by all of the Lenders
with respect to the Notes held by all of the Lenders, such Lender will make
such disposition and arrangements with the other Lenders with respect to such
excess, either by way of distribution, pro tanto assignment of claims,
subrogation or otherwise as shall result in each Lender receiving in respect of
the Notes held by it its proportionate payment as contemplated by this
Agreement; provided that if all or any part of such excess payment is
thereafter recovered from such Lender, such disposition and arrangements shall
be rescinded and the amount restored to the extent of such recovery, but
without interest.


 


§14.                          THE AGENT


 


§14.1.                 Authorization. 
The Agent is authorized to take such action on behalf of each of the
Lenders and to exercise all such powers as are hereunder and under any of the
other Loan Documents and any related documents delegated to the Agent, together
with such powers as are reasonably incident thereto, provided that no duties or
responsibilities not expressly assumed herein or therein shall be implied to
have been assumed by the Agent. The relationship between the Agent and the
Lenders is and shall be that of agent and principal only, and nothing contained
in this Agreement or any of the other Loan Documents shall be construed to
constitute the Agent as a trustee for any Lender.


 


§14.2.                 Employees and Agents.  The Agent may exercise its powers and execute its duties by or
through employees or agents and shall be entitled to take, and to rely on,
advice of counsel concerning all matters pertaining to its rights and duties
under this Agreement and the other Loan Documents. The Agent may utilize the
services of such Persons as the Agent in its sole discretion may reasonably
determine, and all reasonable fees and expenses of such Persons shall be paid
by the Borrower.


 


§14.3.                 No Liability to Lenders.  Neither the Agent nor any of its
shareholders, directors, officers or employees nor any other Person assisting
them in their duties nor any agent or employee thereof, shall be liable to any
Lender for any waiver, consent or approval given or any action taken, or
omitted to be taken, in good faith by it or them hereunder or under any of the
other Loan Documents, or in connection herewith or therewith, or be responsible
for the consequences of any oversight or error of judgment whatsoever, except
that the Agent or such other Person, as the case may be, shall be liable for
losses due to its willful misconduct or gross negligence.


 


§14.4.                 No Representations.  The Agent shall not be responsible for the execution or validity
or enforceability of this Agreement, the Notes, any of the other Loan Documents
or any instrument at any time constituting, or intended to constitute,
collateral security for the Notes, or for the value of any such collateral
security or for the validity, enforceability or collectibility of any such
amounts owing with respect to the Notes, or for any recitals or statements,
warranties or representations made herein or in any of the other Loan Documents
or in any certificate or instrument hereafter furnished to it by or on behalf
of the Borrower, or be bound to ascertain or inquire as to the performance or
observance of any of the terms, conditions, covenants or agreements herein or
in any instrument at any time constituting, or intended to constitute,
collateral security for the Notes. The Agent shall not be bound to ascertain
whether any notice,


 


58

















 


consent, waiver or request delivered to it by
the Borrower or any Guarantor or any holder of any of the Notes shall have been
duly authorized or is true, accurate and complete. The Agent has not made nor
does it now make any representations or warranties, express or implied, nor
does it assume any liability to the Lenders, with respect to the credit
worthiness or financial condition of the Borrower, the Company or any of the
other Guarantors. Each Lender acknowledges that it has, independently and
without reliance upon the Agent or any other Lender, and based upon such
information and documents as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender has either (x)
been independently represented by separate counsel on all matters regarding
this Agreement or (y) knowingly waived any such representation.


 


§14.5.                 Payments.


 


(a)  A payment by the Borrower to the Agent
hereunder or any of the other Loan Documents for the account of any Lender
shall constitute a payment to such Lender subject to the pro rata rights to
repayment based upon the Commitment Percentage of each Lender. Neither the
Borrower nor any Guarantor shall have any obligation to see to the proper
application by Agent of any amounts paid by any of them to the Agent for the
account of the Lenders.  The Agent
agrees promptly to distribute to each Lender such Lender’s pro rata share of
payments received by the Agent for the account of the Lenders except as
otherwise expressly provided herein or in any of the other Loan Documents.


 


(b)  If in the opinion of the Agent the
distribution of any amount received by it in such capacity hereunder, under the
Notes or under any of the other Loan Documents might involve it in liability,
it may refrain from making distribution until its right to make distribution
shall have been adjudicated by a court of competent jurisdiction. If a court of
competent jurisdiction shall adjudge that any amount received and distributed
by the Agent is to be repaid, each Person to whom any such distribution shall
have been made shall either repay to the Agent its proportionate share of the
amount so adjudged to be repaid or shall pay over the same in such manner and
to such Persons as shall be determined by such court.


 


(c)  Notwithstanding anything to the contrary
contained in this Agreement or any of the other Loan Documents, any Lender that
fails (i) to make available to the Agent its pro rata share of any Loan or (ii)
to comply with the provisions of §13 with respect to making dispositions and
arrangements with the other Lenders, where such Lender’s share of any payment
received, whether by setoff or otherwise, is in excess of its pro rata share of
such payments due and payable to all of the Lenders, in each case as, when and
to the full extent required by the provisions of this Agreement, or to adjust
promptly such Lender’s outstanding principal and its pro rata Commitment
Percentage as provided in §2.1 hereof, shall be deemed delinquent (a
“Delinquent Lender”) and shall be deemed a Delinquent Lender until such time as
such delinquency is satisfied.  A
Delinquent Lender shall be deemed to have assigned any and all payments due to
it from the Borrower under the Loan Documents, whether on account of
outstanding Loans, interest, fees or otherwise, to the remaining nondelinquent
Lenders for application to, and reduction of, their respective pro rata shares
of all outstanding Loans.  The
Delinquent Lender hereby authorizes the Agent to distribute such payments to
the nondelinquent Lenders in proportion to their respective pro rata shares of
all outstanding Loans. A Delinquent Lender shall be deemed to have satisfied in
full a delinquency when and if, as a result of


 


59

















 


application of the assigned payments to all
outstanding Loans of the nondelinquent Lenders, the Lenders’ respective pro
rata shares of all outstanding Loans have returned to those in effect
immediately prior to such delinquency and without giving effect to the
nonpayment causing such delinquency.


 


(d)
If any amount which the Agent is required to distribute to the Lenders pursuant
to this §14.5 is actually distributed to any Lender on a date which is later
than the first Business Day following the Agent’s receipt of the corresponding
payment from the Borrower, the Agent shall pay to such Lender on demand an
amount equal to the product of (i) the average computed for the period referred
to in clause (iii) below, of the weighted average interest rate paid by the
Agent for federal funds acquired by the Agent during each day included in such
period, times (ii) the amount of such late distribution to such Lender, times
(iii) a fraction, the numerator of which is the number of days or portion
thereof that elapsed from and including the second Business Day after the
Agent’s receipt of such corresponding payment from the Borrower to the date on
which the amount so required to be distributed to such Lender actually is
distributed, and the denominator of which is 365.


 


§14.6.                 Holders of Notes. 
The Agent may deem and treat the payee of any Note as the absolute owner
or purchaser thereof for all purposes hereof until it shall have been furnished
in writing with a different name by such payee or by a subsequent holder
assignee or transferee.


 


§14.7.                 Indemnity.  The
Lenders ratably agree hereby to indemnify and hold harmless the Agent from and
against any and all claims, actions and suits (whether groundless or
otherwise), losses, damages, costs, expenses (including any expenses for which
the Agent has not been reimbursed by the Borrower and the Guarantors as
required by §15), and liabilities of every nature and character arising out of
or related to this Agreement, the Notes, or any of the other Loan Documents or
the transactions contemplated or evidenced hereby or thereby, or the Agent’s
actions taken hereunder or thereunder, except to the extent that any of the
same shall be directly caused by the Agent’s willful misconduct or gross
negligence.


 


§14.8.                 Agent as Lender. 
In its individual capacity, Fleet National Bank shall have the same
obligations and the same rights, powers and privileges in respect to its
Commitment and the Loans made by it, and as the holder of any of the Notes as
it would have were it not also the Agent.


 


§14.9.                 Resignation. 
The Agent may resign at any time by giving sixty (60) days, prior
written notice thereof to the Lenders and the Borrower; provided, however, that
unless an Event of Default has occurred and is continuing, Fleet National Bank
may not voluntarily resign as Agent under the provisions of this Agreement
without the Borrower’s consent.  Upon
any such resignation, the Requisite Lenders shall have the right to appoint a
successor Agent.  Unless a Default or
Event of Default shall have occurred and be continuing, appointment of such
successor Agent shall be subject to the reasonable approval of the Borrower.  If no successor Agent shall have been so
appointed by the Requisite Lenders and shall have accepted such appointment
within thirty (30) days after the giving of notice of resignation or removal or
if the Borrower (to the extent it has approval rights with respect to the
successor Agent) has disapproved or failed to approve a successor agent within
such period, then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent, which shall be a financial institution


 


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having a rating of not less than A2/P2 or its
equivalent by Standard & Poor’s Corporation. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations as Agent hereunder.  After any retiring Agent’s resignation, the provisions of this
Agreement and the other Loan Documents 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 Agent.


 


§14.10.           Notification of Defaults and Events of
Default and other Notices.  Each
Lender hereby agrees that, upon learning of the existence of a Default or an
Event of Default, it shall promptly notify the Agent thereof. The Agent hereby
agrees that upon receipt of any notice under this §14.10, or upon it otherwise
learning of the existence of a Default or an Event of Default, it shall
promptly notify the other Lenders of the existence of such Default or Event of
Default.  The Agent shall also promptly
provide each Lender with a copy of any notices which the Agent receives from
the Borrower pursuant to §7.5 or §7.13.


 


§14.11.           Duties in the Case of Enforcement.  In case one of more Events of Default have
occurred and shall be continuing, and whether or not acceleration of the
Obligations shall have occurred, the Agent may, with the consent of the Requisite
Lenders (which consents may be obtained orally in emergency situations), and
the Agent shall, if (a) so requested by the Requisite Lenders and (b) the
Lenders have provided to the Agent such additional indemnities and assurances
against expenses and liabilities as the Agent may reasonably request, proceed
to enforce the provisions of the Loan Documents and exercise all or any such
other legal and equitable and other rights or remedies as it may have. The
Requisite Lenders may direct the Agent in writing as to the method and the
extent of any such enforcement actions, the Lenders hereby agreeing to
indemnify and hold the Agent harmless from all liabilities incurred in respect
of all actions taken or omitted in accordance with such directions, provided that
the Agent need not comply with any such direction to the extent that the Agent
reasonably believes the Agent’s compliance with such direction to be unlawful
or commercially unreasonable in any applicable jurisdiction.


 


§14.12.           Mandatory Resignation of Agent.  The Agent shall be obligated to resign in
accordance with, and subject to, the provisions of §14.9, without the consent
of the Borrower, upon the written request of Lenders whose aggregate
Commitments constitute at least sixty-six percent (66%) of  the Total Commitment excluding the
Commitment of the Lender which is then the Agent hereunder, provided such
request is made for cause (provided, however, than in the case of a request for
resignation of Fleet National Bank, as Agent, such cause must constitute gross
negligence or willful misconduct), and provided further that the successor
Agent actively administers credits of similar size and complexity to this
Agreement and the Loans.


 


§14.13.           Matters as to Borrower.  (a) 
Except as expressly set forth in this Agreement, Borrower shall have no
obligation to cause Agent or any of the Lenders to perform their respective
obligations under this Agreement.


 


(b)  Notwithstanding that a matter in question
requires the consent, approval or direction of any or all of the Lenders,
Borrower may rely exclusively on the written notice of Agent that such consent,
approval, or direction has been given or obtained to bind the Lenders.


 


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§14.14.           Concerning the Collateral and the
Collateral Documents.  (a)  Each Lender agrees that any action taken by
the Agent or the Requisite Lenders (or, where required by the express terms of
this Agreement, a greater proportion of the Lenders) in accordance with the
provisions of this Agreement or of the other Loan Documents, and the exercise
by the Agent or the Requisite Lenders (or, where so required, such greater
proportion) of the powers set forth herein or therein, together with such other
powers as are reasonably incidental thereto, shall be authorized and binding
upon all of the Lenders.  Without
limiting the generality of the foregoing, the Agent shall have the sole and
exclusive right and authority to (i) act as the disbursing and collecting agent
for the Lenders with respect to all payments and collections arising in
connection with the Collateral Documents; (ii) execute and deliver each
Collateral Document and accept delivery of each such agreement delivered by the
Borrower, any Guarantor or any of their respective Subsidiaries; (iii) act as
collateral agent for the Lenders for purposes of the perfection of all security
interests and Liens created by such agreements and all other purposes stated in
the Collateral Documents; (iv) manage, supervise and otherwise deal with the
Collateral; (v) take such action as is necessary or desirable to maintain the
perfection and priority of the security interests and Liens created or
purported to be created by the Collateral Documents; and (vi) except as may be
otherwise specifically restricted by the terms hereof or of any other Loan
Document, exercise all remedies given to the Agent and the Lenders as secured
parties with respect to the Collateral under the Collateral Documents relating
thereto, applicable law or otherwise.


 


(b)                                 Provided
that no Event of Default has occurred and is continuing (but subject to the
provisions of clause (ii) of this paragraph (b)), each of the Lenders hereby
directs, in accordance with the terms hereof, the Agent to release any Lien
held by the Agent for the benefit of the Lenders and the Agent hereby agrees
that it shall release any such Lien:


 


(i)                                     against all of the
Collateral, upon termination of the Commitments and payment and satisfaction in
full of all Loans and all other Obligations which have matured and which the
Agent has been notified in writing are then due and payable;


 


(ii)                                  against any Collateral sold or
disposed of by the Borrower or a Guarantor or paid off by the underlying
borrower or obligor, or no longer necessary to satisfy the Maximum Credit Amount
limitation, which Collateral is specified to the Agent by the Borrower upon at
least seven (7) days written notice, provided that (x) for so long as no Event
of Default has occurred and is continuing, the principal amount of the
Obligations is prepaid to the extent necessary to make the principal amount of
the Obligations no more than equal to the Maximum Credit Amount after giving
effect to the release of the Collateral (as certified to by the chief financial
officer of the Borrower), and (y) during the occurrence and continuance of an
Event of Default, (i) the Obligations are prepaid in an amount equal to 100% of
the proceeds received by the Borrower from the sale or other disposition of
such Collateral and (ii) the consent of the Requisite Lenders is obtained; and


 


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(iii)                               against any part of the
Collateral, if such release is consented to by the Requisite Lenders.


 


Each of the Lenders hereby
directs the Agent (and the Agent hereby agrees) to execute and deliver or file
such termination and partial release statements and do such other things as are
necessary to release Liens to be released pursuant to this §14.14 promptly upon
the effectiveness of any such release.


 


§15.                          EXPENSES.  The Borrower and each of the Guarantors jointly and severally agree to
pay (a) the reasonable costs of producing and reproducing this Agreement, the
other Loan Documents and the other agreements and instruments mentioned herein,
(b) any taxes (including any interest and penalties in respect thereto) payable
by the Agent or any of the Lenders (other than taxes based upon the Agent’s or
any Lender’s net income), including any recording, mortgage, documentary or
intangibles taxes in connection with the Loan Documents, or other taxes payable
on or with respect to the transactions contemplated by this Agreement,
including any taxes payable by the Agent or any of the Lenders after the
Effective Date (the Borrower hereby agreeing to indemnify the Lenders with
respect thereto), (c) all title examination costs, recording costs and the
reasonable fees, expenses and disbursements of the Agent’s counsel or any local
counsel to the Agent incurred in connection with the preparation,
administration or interpretation of the Loan Documents and other instruments
mentioned herein, and amendments, modifications, approvals, consents or waivers
hereto or hereunder, (d) the fees, costs, expenses and disbursements of the
Agent incurred in connection with the preparation, administration or
interpretation of the Loan Documents and other instruments mentioned herein
including, without limitation, the costs incurred by the Agent in connection
with its inspection of the Structured Finance Collateral Assets and the
properties subject thereto, and the fees and disbursements of the Agent’s
counsel and the Borrower’s legal counsel in preparing documentation, (e) legal
fees and expenses incurred in connection with the Agent’s (or any Lenders’)
review and analysis of any documentation relating to any Structured Finance
Collateral Asset which the Borrower requests to become Collateral after the
date of this Agreement,  (f) all
reasonable out-of-pocket expenses (including reasonable attorneys’ fees and
costs, which attorneys may be employees of any Lender or the Agent and the fees
and costs of appraisers, engineers, investment bankers, surveyors or other
experts retained by the Agent or any Lender in connection with any such
enforcement proceedings) incurred by any Lender or the Agent in connection with
(i) the enforcement of or preservation of rights under any of the Loan
Documents against the Borrower or the Guarantors or the administration thereof
after the occurrence of a Default or Event of Default (including, without
limitation, expenses incurred in any restructuring and/or “workout” of the
Loans), and (ii) any litigation, proceeding or dispute whether arising
hereunder or otherwise, in any way related to the Agent’s or the Lender’s
relationship with the Borrower, the Company, any Unconsolidated Entity or any
of the Related Companies (but not including any dispute between the Agent (or
any Lender) and any other Lender), (g) all reasonable fees, expenses and
disbursements of the Agent incurred in connection with UCC searches, and (h)
all costs incurred by the Agent in the future in connection with its reasonable
inspection of the Structured Finance Collateral Assets. The covenants of this
§15 shall survive payment or satisfaction of payment of amounts owing with
respect to the Notes.


 


§16.                          INDEMNIFICATION. 
The Borrower and each of the Guarantors hereby jointly and severally
agree to indemnify and hold harmless the Agent and the Lenders and the


 


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shareholders, directors, agents, officers,
subsidiaries, employees, and affiliates of the Agent and the Lenders from and
against any and all claims, actions or causes of action and suits whether
groundless or otherwise, and from and against any and all liabilities, losses,
settlement payments, obligations, damages and expenses (including legal fees
and disbursements) of every nature and character arising out of this Agreement
or any of the other Loan Documents or the transactions contemplated hereby or
which otherwise arise in connection with the financing including, without limitation
except to the extent directly caused by the gross negligence or willful
misconduct of a Lender or the Agent or any of the aforementioned indemnified
parties (but such limitation on indemnification shall only apply to the Agent
or Lender or any of the aforementioned indemnified parties being grossly
negligent or committing willful misconduct), (a) any actual or proposed use by
the Borrower of the proceeds of any of the Loans, (b) any actual or alleged
infringement of any patent, copyright, trademark, service mark or similar right
of the Borrower or any of the Guarantors, (c) the Borrower or any of the
Guarantors entering into or performing this Agreement or any of the other Loan
Documents, (d) with respect to the Borrower or any of the Guarantors and their
respective properties, the violation of any Environmental Law, the Release or
threatened Release of any Hazardous Materials or any action, suit, proceeding
or investigation brought or threatened with respect to any Hazardous Materials
(including, but not limited to claims with respect to wrongful death, personal
injury or damage to property), (e) any cost, claim liability, damage or expense
in connection with any harm the Borrower or any of the Guarantors may be found
to have caused in the role of a broker, in each case including, without
limitation, the reasonable fees and disbursements of counsel incurred in
connection with any such investigation, litigation or other proceeding, or (f)
any interest of the Lenders or the Agent arising out of or as a result of the
Collateral or the Collateral Documents, including, but not limited to,
interests owned or held as Secured Parties and interests owned or held as a
result of the exercise of remedies under the Loan Documents.  In litigation, or the preparation therefor,
the Lenders and the Agent shall each be entitled to select their own separate
counsel and, in addition to the foregoing indemnity, the Borrower and each of
the Guarantors jointly and severally agree to pay promptly the reasonable fees
and expenses of such counsel.  If, and
to the extent that the obligations of the Borrower or any of the Guarantors
under this §16 are unenforceable for any reason, the Borrower and each of the
Guarantors jointly and severally agree to make the maximum contribution to the
payment in satisfaction of such obligations which is permissible under
applicable law. The provisions of this §16 shall survive the repayment of the
Loans and the termination of the obligations of the Lenders hereunder and shall
continue in full force and effect as to the Lenders so long as the possibility
of any such claim, action, cause of action or suit exists.


 


§17.                          SURVIVAL OF COVENANTS, ETC.  All covenants, agreements, representations
and warranties made herein, in the Notes, in any of the other Loan Documents or
in any documents or other papers delivered by or on behalf of the Borrower or
any Guarantor pursuant hereto shall be deemed to have been relied upon by the
Lenders and the Agent, notwithstanding any investigation heretofore or
hereafter made by it, and shall survive the making by the Lenders of the Loans,
as herein contemplated, and shall continue in full force and effect so long as
any amount due under this Agreement or the Notes or any of the other Loan
Documents remains outstanding or the Lenders have any obligation to make any
Loans. The indemnification obligations of the Borrower and the Guarantors
provided herein and the other Loan Documents shall survive the full repayment
of amounts due and the termination of the obligations of the Lenders hereunder
and thereunder to the extent provided herein and therein.


 


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All statements contained in any certificate
or other paper delivered to the Agent or any Lender at any time by or on behalf
of the Borrower or any of the Guarantors pursuant hereto or in connection with
the transactions contemplated hereby (other than third party reports, such as
engineering reports and environmental studies) shall constitute representations
and warranties by the Borrower or any of the Guarantors hereunder.


 


§18.                          GUARANTY.


 


§18.1.                 Guaranty.  Each of the
Guarantors acknowledges that it will receive substantial benefits from the
making of the Loans and extensions of credit to the Borrower by the Lenders
under this Agreement.  Subject to §18.7
below, each of the Guarantors hereby, jointly and severally, unconditionally
and irrevocably guarantees to each Lender and the Agent, and their respective
successors and assigns, the prompt payment of the Guaranteed Obligations in full
when due (whether at stated maturity, as a mandatory prepayment, by
acceleration or otherwise) (the “Guaranty”). 
The Guarantors additionally, jointly and severally, unconditionally
guarantee to each Lender and the Agent the timely performance of all other
obligations of the Borrower under the Loan Documents.  This Guaranty is a guaranty of payment and not of collection and
is a continuing guaranty and shall apply to Guaranteed Obligations whenever
arising.


 


§18.2.                 Obligations Unconditional.  The obligations of the Guarantors hereunder
are absolute and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of any of the Guaranteed Obligations or
any of the Loan Documents, or any other agreement or instrument referred to
therein, to the fullest extent permitted by applicable law, irrespective of any
other circumstance whatsoever which might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor.  Each Guarantor agrees that this Guaranty may
be enforced by the Agent, on behalf of the Lenders, without necessity at any
time of resorting to or exhausting any other security or collateral and without
the necessity at any time of having recourse to the Notes, any other of the
Loan Documents or the Collateral, and each Guarantor hereby waives the right to
require the Lenders to proceed against the Borrower or any other Person
(including a co-guarantor) or to require the Lenders to pursue any other remedy
or enforce any other right.  Each Guarantor
further agrees that it shall have no right of subrogation, indemnity,
reimbursement or contribution against the Borrower or any other Guarantor of
the Guaranteed Obligations for amounts paid under this Guaranty until such time
as the Lenders have been paid in full, all Commitments under this Agreement
have been terminated, and no Person or governmental authority shall have any
right to request any return or reimbursement of funds from the Lenders in
connection with monies received under the Loan Documents.  Each Guarantor further agrees that nothing
contained herein shall prevent the Agent or the Lenders from suing on the Notes
or any of the other Loan Documents or foreclosing their security interest in or
Lien on the Collateral or from exercising any other rights available to them
under this Agreement, the Notes, any other of the Loan Documents, or any other
instrument of security, if any, and the exercise of any of the aforesaid rights
and the completion of any foreclosure proceedings shall not constitute a
discharge of any Guarantor’s obligations hereunder; it being the purpose and
intent of each Guarantor that its obligations hereunder shall be absolute,
independent and unconditional under any and all circumstances.  Neither any Guarantor’s obligations under
this Guaranty nor any remedy for the enforcement thereof shall be impaired,
modified, changed or released in any manner whatsoever by an impairment,
modification, change, release or limitation of the liability of the Borrower or
by reason of the bankruptcy or


 


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insolvency of the Borrower.  Each Guarantor waives any and all notice of
the creation, renewal, extension or accrual of any of the Guaranteed
Obligations and notice of or proof of reliance of by, the Agent or any Lender
upon this Guaranty or acceptance of this Guaranty.  The Guaranteed Obligations, and any of them, shall conclusively
be deemed to have been created, contracted or incurred, or renewed, extended,
amended or waived, in reliance upon this Guaranty.  All dealings between the Borrowers and any of the Guarantors, on
the one hand, and the Agent and the Lenders, on the other hand, likewise shall
be conclusively presumed to have been had or consummated in reliance upon this
Guaranty.


 


§18.3.                 Modifications. 
Each Guarantor agrees that (a) all or any part of the security now or
hereafter held for the Guaranteed Obligations, if any, may be exchanged,
compromised or surrendered from time to time; (b) the Lenders shall not have
any obligation to protect, perfect, secure or insure any such security
interests, Liens or encumbrances now or hereafter held, if any, for the
Guaranteed Obligations or the properties subject thereto; (c) the time or place
of payment of the Guaranteed Obligations may be changed or extended, in whole
or in part, to a time certain or otherwise, and may be renewed or accelerated,
in whole or in part; (d) the Borrower and any other party liable for payment
under the Loan Documents may be granted indulgences generally; (e) any of the
provisions of the Notes or any of the other Loan Documents may be modified,
amended or waived; (f) any party (including any co-guarantor) liable for the
payment thereof may be granted indulgences or be released; and (g) any deposit
balance for the credit of the Borrower or any other party liable for the
payment of the Guaranteed Obligations or liable upon any security therefor may
be released, in whole or in part, at, before or after the stated, extended or
accelerated maturity of the Guaranteed Obligations, all without notice to or
further assent by such Guarantor, which shall remain bound thereon,
notwithstanding any such exchange, compromise, surrender, extension, renewal,
acceleration, modification, indulgence or release.  Each Guarantor hereby appoints the Borrower as its agent to
execute and deliver any amendments to or modifications or waivers of the Loan
Documents, and the Agent and the Lenders may rely on such appointment until
such time as a Guarantor advises the Agent and the Lenders in writing that the
Borrower is no longer authorized to so act as its agent.


 


§18.4.                 Waiver of Rights. 
Each Guarantor expressly waives to the fullest extent permitted by
applicable law: (a) notice of acceptance of this Guaranty by the Lenders and of
all extensions of credit to the Borrower by the Lenders; (b) presentment and
demand for payment or performance of any of the Guaranteed Obligations; (c)
protest and notice of dishonor or of default (except as specifically required
in this Agreement) with respect to the Guaranteed Obligations or with respect
to any security therefor: (d) notice of the Lenders obtaining, amending,
substituting for, releasing, waiving or modifying any security interest, Lien
or encumbrance, if any, hereafter securing the Guaranteed Obligations, or the
Lenders’ subordinating, compromising, discharging or releasing such security
interests, Liens or encumbrances, if any; (e) all other notices to which such
Guarantor might otherwise be entitled; and (f) demand for payment under this
Guaranty.


 


§18.5.                 Reinstatement. 
The obligations of the Guarantors under this §18  shall be automatically reinstated if and
to the extent that for any reason any payment by or on behalf of any Person in
respect of the Guaranteed Obligations is rescinded or must be otherwise
restored by any holder of any of the Guaranteed Obligations, whether as a
result of any proceedings in bankruptcy or reorganization or otherwise, and
each Guarantor agrees that it will indemnify the


 


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Agent and each Lender on demand for all
reasonable costs and expenses (including, without limitation, reasonable fees
of counsel) incurred by the Agent or such Lender in connection with such
rescission or restoration, including any such costs and expenses incurred in
defending against any claim alleging that such payment constituted a
preference, fraudulent transfer or similar payment under any bankruptcy,
insolvency or similar law.


 


§18.6.                 Remedies.  The
Guarantors agree that, as between the Guarantors, on the one hand, and the
Agent and the Lenders, on the other hand, the Guaranteed Obligations may be
declared to be forthwith due and payable as provided in §12 hereof (and shall
be deemed to have become automatically due and payable in the circumstances
provided in §12 hereof) notwithstanding any stay, injunction or other
prohibition preventing such declaration (or preventing such Guaranteed
Obligations from becoming automatically due and payable) as against any other
Person and that, in the event of such declaration (or such Guaranteed
Obligations being deemed to have become automatically due and payable), such
Guaranteed Obligations (whether or not due and payable by any other Person)
shall forthwith become due and payable by the Guarantors.


 


§18.7.                 Limitation of Guaranty.  Notwithstanding any provision to the
contrary contained herein or in any of the other Loan Documents, to the extent
the obligations of any Guarantor shall be adjudicated to be invalid or
unenforceable for any reason (including, without limitation, because of any
applicable state or federal law relating to fraudulent conveyances or
transfers), then the obligations of such Guarantor hereunder shall be limited
to the maximum amount that is permissible under applicable law (whether federal
or state and including, without limitation, the Bankruptcy Code).


 


§18.8.                 Release of Guaranty.  Upon consummation of the sale, conveyance, pledge or other
transfer of all of the stock or other evidence of beneficial or legal
ownership, or a sale, mortgage or pledge of all or substantially all of the
assets, of any Guarantor other than the Company, so long as the transfer of
Collateral pledged by such Guarantor is otherwise permitted under the terms of
this Agreement, and so long as no Default or Event of Default shall have
occurred and be continuing, the Guaranty of such Guarantor, and all of its
obligations and liabilities under the Loan Documents, shall be, and shall be
deemed to be, released and discharged, and upon the request of such released
Guarantor, the Agent shall acknowledge such release in writing.


 


§19.                          ASSIGNMENT; PARTICIPATIONS; ETC.


 


§19.1.                 Conditions to Assignment by Lenders.  Except as provided herein, each Lender may
assign to one or more Eligible Assignees all or a portion of its interests,
rights and obligations under this Agreement (including all or a portion of its
Commitment Percentage and Commitment and the same portion of the Loans at the
time owing to it, and the Notes held by it); provided that (a) the Agent shall
have given its prior written consent to such assignment, which consent shall
not be unreasonably withheld or delayed, except that such consent shall not be
needed with respect to an assignment from a Lender to either one of its
Affiliated Lenders or to another Lender hereunder, (b) each such assignment
shall be of a portion (or which may be all) of the assigning Lender’s rights
and obligations under this Agreement relating to a specified Commitment amount
and Commitment Percentage, (c) each assignment shall be in an amount of


 


67

















 


not less than $5,000,000 and in integral
multiples of $1,000,000, (d) each Lender either shall assign all of its
Commitment and cease to be a Lender hereunder or shall retain, free of any such
assignment, an amount of its Commitment of not less than $5,000,000, and (e)
the parties to such assignment shall execute and deliver to the Agent, for
recording in the Register (as hereinafter defined), an Assignment and
Acceptance, substantially in the form of Exhibit E hereto (an “Assignment and
Acceptance”) , together with any Notes subject to such assignment.   Upon such execution, delivery, acceptance
and recording, from and after the effective date specified in each Assignment
and Acceptance, which effective date shall be at least five (5) Business Days
after the execution thereof, (i) the assignee thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder, and (ii) the assigning Lender
shall, to the extent provided in such assignment and upon payment to the Agent
of the registration fee referred to in §19.3, be released from its obligations
under this Agreement.


 


§19.2.                 Certain Representations and
Warranties; Limitations; Covenants. 
By executing and delivering an Assignment and Acceptance, the parties to
the assignment thereunder confirm to and agree with each other and the other
parties hereto as follows: (a) other than the representation and warranty that
it is the legal and beneficial owner of the interest being assigned thereby
free and clear of any adverse claim, the assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement, the other Loan Documents or any other
instrument or document furnished pursuant hereto; (b) the assigning Lender
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of the Borrower or any other Person primarily or
secondarily liable in respect of any of the Obligations, or the performance or
observance by the Borrower or any other Person primarily or secondarily liable
in respect of any of the Obligations of any of their obligations under this
Agreement or any of the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto; (c) such assignee confirms that
it has received a copy of this Agreement, together with copies of the most
recent financial statements referred to in §6.4 and §7.4 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (d) such
assignee will, independently and without reliance upon the assigning Lender,
the Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under this Agreement, (e) such assignee
represents and warrants that it is an Eligible Assignee; (f) such assignee
appoints and authorizes the Agent to take such action as “Agent” on its behalf
and to exercise such powers under this Agreement and the other Loan Documents
as are delegated to the Agent by the terms hereof or thereof, together with
such powers as are reasonably incidental thereto; (g) such assignee agrees that
it will perform in accordance with their terms all of the obligations that by
the terms of this Agreement are required to be performed by it as a Lender; and
(h) such assignee represents and warrants that it is legally authorized to
enter into such Assignment and Acceptance.


 


§19.3                    Register.  The
Agent shall maintain a copy of each Assignment and Acceptance delivered to it
and a register or similar list (the “Register”) for the recordation of the
names and addresses of the Lenders and the Commitment Percentages of, and
principal amount of the Loans


 


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owing to the Lenders from time to time. The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, the Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower and
the Lenders at any reasonable time and from time to time upon reasonable prior
notice.  From and after the Effective
Date, upon each such recordation, the assigning Lender agrees to pay to the
Agent a registration fee in the sum of $3,500.00. The Agent may, without action
by any other party, amend Schedules 1 and 1.2 hereof to reflect the recording
of any such assignments and shall immediately forward a copy of any such
amendment to Borrower.


 


§19.4.                 New Notes.  Upon
its receipt of an Assignment and Acceptance executed by the parties to such
assignment, together with each Note subject to such assignment, the Agent shall
(a) record the information contained therein in the Register, and (b) give
prompt notice thereof to the Borrower and the Lenders (other than the assigning
Lender). Within five (5) Business Days after receipt of such notice, the
Borrower, at its own expense, shall execute and deliver to the Agent, in
exchange for each surrendered Note, a new Note to the order of such Eligible
Assignee in an amount equal to the amount assumed by such Eligible Assignee
pursuant to such Assignment and Acceptance and, if the assigning Lender has
retained some portion of its Loans hereunder, a new Note to the order of the
assigning Lender in an amount equal to the amount retained by it hereunder.
Such new Notes shall provide that they are replacements for the surrendered
Notes and that they do not constitute a novation, shall be in an aggregate
principal amount equal to the aggregate principal amount of the surrendered
Notes, shall be dated the effective date of such Assignment and Acceptance and
shall otherwise be in substantially the form of the assigned Notes.  Within five (5) days of issuance of any new
Notes pursuant to this §19.4, the Borrower shall deliver an opinion of counsel,
addressed to the Lenders and the Agent, relating to the due authorization,
execution and delivery of such new Notes and the legality, validity and binding
effect thereof, and that the Obligations evidenced by the new Notes have the
same validity and enforceability as if given on the Effective Date, in form and
substance reasonably satisfactory to the Lenders who are the holders of such
new Notes. The surrendered Notes shall be held by the Agent in escrow and shall
be deemed cancelled and returned to the Borrower simultaneously upon the issuance
and receipt by the Agent of, and in exchange for, the New Notes.


 


§19.5.                 Participations.  Each
Lender may sell participations to one or more banks or other entities of all or
a portion of such Lender’s rights and obligations under this Agreement and the
other Loan Documents; provided that (a) the Agent shall have given its prior
written consent to such participation, which consent shall not be unreasonably
withheld or delayed, except that any Lender may sell participations to its
Affiliated Lenders without such consent, (b) each such participation, other
than participations to its Affiliated Lenders or to another Lender hereunder,
shall be in an amount of not less than $5,000,000, (c) any such sale or
participation shall not affect the rights and duties of the selling Lender
hereunder to the Borrower and the Lender shall continue to exercise all
approvals, disapprovals and other functions of a Lender, (d) the only rights
granted to the participant pursuant to such participation arrangements with
respect to waivers, amendments or modifications of the Loan Documents shall be
the rights to approve the vote of the Lender as to waivers, amendments or
modifications that would reduce the principal of or the interest rate on any
Loans, extend the term or increase the amount of the Commitment of such Lender
as it relates to such participant, reduce the amount of any fees to which such


 


69

















 


participant is entitled or extend any
regularly scheduled payment date for principal or interest, and (e) no
participant which is not a Lender hereunder shall have the right to grant
further participations or assign its rights, obligations or interests under
such participation to other Persons without the prior written consent of the
Agent. The Agent shall promptly advise the Borrower in writing of any such sale
or participation.


 


§19.6.                 Pledge by
Lender.  Any Lender may at any time pledge all or any portion of its
interest and rights under this Agreement (including all or any portion of its
Note) to any of the twelve Federal Reserve Banks organized under §4 of the
Federal Reserve Act, 12 U.S.C. §341. No such pledge or the enforcement thereof
shall release the pledgor Lender from its obligations hereunder or under any of
the other Loan Documents.


 


§19.7.                 No Assignment by Borrower.


Neither
the Borrower nor any Guarantor shall assign or transfer any of its rights or
obligations under any of the Loan Documents without the prior written consent
of each of the Lenders, and any such attempted assignment shall be null and
void.


 


§19.8.                 Disclosure. 
(a)  Each of the Borrower and the
Guarantors agrees that in addition to disclosures made in accordance with
standard banking practices any Lender may disclose information obtained by such
Lender pursuant to this Agreement to assignees or participants and potential
assignees or participants hereunder subject to customary banking
confidentiality practices.


 


(b)  The Borrower, the Company and each Guarantor
(and each employee, representative or other agent of each of the foregoing) may
disclose to any and all persons without limitation of any kind, the U.S. tax
treatment and U.S. tax structure of this Agreement and the transactions
contemplated hereby and all materials of any kind (including opinions or other
tax analyses) that are provided to the Borrower, the Company or any Guarantor
relating to such U.S. tax treatment and U.S. tax structure.


 


§20.                          NOTICES,
ETC.Except as otherwise expressly provided in this Agreement, all notices and
other communications made or required to be given pursuant to this Agreement or
the Notes shall be in writing and shall be delivered in hand, mailed by United
States registered or certified first class mail, postage prepaid, sent by
overnight courier, or sent by telegraph, telecopy, telefax or telex and
confirmed by delivery via courier or postal service, addressed as follows:


 


(a)  if to the Borrower, the Company or any of
the Guarantors, at SL Green Operating Partnership, L.P., 420 Lexington Avenue,
New York, New York 10170 (telecopy number 212-216-1785), Attention: Chief
Financial Officer and General Counsel, with a copy to Robert Ivanhoe, Esq.,
Greenberg Traurig, 200 Park Avenue, New York, New York 10166 (telecopy number
212-801-6400), or at such other address for notice as the Borrower shall last
have furnished in writing to the Agent; and


 


(b)  if to the Agent, at 100 Federal Street,
Boston, Massachusetts 02110, Attention: Structured Real Estate, or such other
address for notice as the Agent shall last have furnished in writing to the
Borrower.


 


70

















 


(c)  if to any Lender, at such Lender’s address
set forth on Schedule 1, hereto, or such other address for notice as such
Lender shall have last furnished in writing to the Person giving the notice.


 


Any
such notice or demand shall be deemed to have been duly given or made and to
have become effective (i) if delivered by hand, overnight courier or facsimile
to a responsible officer of the party to which it is directed, at the time of
the receipt thereof by such officer or the sending of such facsimile and (ii)
if sent by registered or certified first-class mail, postage prepaid, on the
third Business Day following the mailing thereof.


 


§21.                          GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE.  THIS AGREEMENT AND EACH OF THE OTHER LOAN
DOCUMENTS, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED THEREIN, ARE CONTRACTS
UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL FOR ALL PURPOSES BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SUCH STATE. EACH OF THE
BORROWER,  THE GUARANTORS, THE AGENT AND
THE LENDERS AGREES THAT ANY SUIT BY IT FOR THE ENFORCEMENT OF THIS AGREEMENT OR
ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE CITY OF NEW
YORK, STATE OF NEW YORK OR ANY FEDERAL COURT SITTING THEREIN AND BORROWER
CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT FOR ANY SUIT BY AGENT
OR ANY LENDER AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE
BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN §20. EACH OF THE BORROWER, THE
GUARANTORS, THE AGENT AND THE LENDERS HEREBY WAIVE ANY OBJECTION THAT IT MAY
NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT
SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT. IN ADDITION TO THE COURTS OF THE
CITY OF NEW YORK, STATE OF NEW YORK OR ANY FEDERAL COURT SITTING THEREIN, THE
AGENT OR ANY LENDER MAY BRING ACTION(S) FOR ENFORCEMENT ON A NONEXCLUSIVE BASIS
WHERE ANY COLLATERAL EXISTS AND EACH OF THE BORROWER, THE GUARANTORS, THE AGENT
AND THE LENDERS CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF SUCH COURT AND
THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER, THE
GUARANTORS, THE AGENT AND THE LENDERS BY MAIL AT THE ADDRESS SPECIFIED IN §20.


 


§22.                          HEADINGS.  The
captions in this Agreement are for convenience of reference only and shall not
define or limit the provisions hereof.


 


§23.                          COUNTERPARTS. 
This Agreement and any amendment hereof may be executed in several
counterparts and by each party on a separate counterpart, each of which when so
executed and delivered shall be an original, and all of which together shall
constitute one instrument. In proving this Agreement it shall not be necessary
to produce or account for more than one such counterpart signed by the party
against whom enforcement is sought.


 


§24.                          ENTIRE AGREEMENT. 
The Loan Documents and any other documents executed in connection
herewith or therewith express the entire understanding of the parties with


 


71

















 


respect to the transactions contemplated
hereby. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated, except as provided in §26.


 


§25.                          WAIVER OF JURY TRIAL AND CERTAIN DAMAGE
CLAIMS.  EACH OF THE BORROWER, THE
GUARANTORS, THE AGENT AND THE LENDERS HEREBY WAIVES ITS RIGHT TO A JURY TRIAL
WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION
WITH THIS AGREEMENT, THE NOTES OR ANY OF THE OTHER LOAN DOCUMENTS, ANY RIGHTS
OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS AND
OBLIGATIONS. EXCEPT TO THE EXTENT EXPRESSLY PROHIBITED BY LAW, EACH OF THE
BORROWER AND THE GUARANTORS HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR
RECOVER IN ANY LITIGATION REFERRED TO IN THE PRECEDING SENTENCE ANY SPECIAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN
ADDITION TO, ACTUAL DAMAGES. EACH OF THE BORROWER AND THE GUARANTORS (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE AGENT OR ANY LENDER
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE AGENT OR SUCH LENDER WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B)
ACKNOWLEDGES THAT THE AGENT AND THE LENDERS HAVE BEEN INDUCED TO ENTER INTO
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH THEY ARE PARTIES BY, AMONG
OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.


 


§26.                          CONSENTS, AMENDMENTS, WAIVERS, ETC.  Except as otherwise specifically set forth herein or in any other
Loan Document, any consent or approval required or permitted by this Agreement
may be given, and any term of this Agreement or of any other instrument related
hereto or mentioned herein may be amended, and the performance or observance by
the Borrower and the Guarantors of any terms of this Agreement or such other
instrument or the continuance of any Default or Event of Default may be waived
(either generally or in a particular instance and either retroactively or
prospectively) with, but only with, the written consent of the Requisite
Lenders, and, in the case of amendments, with the written consent of the
Borrower other than amendments to schedules made in the ordinary course as
contemplated by this Agreement. Notwithstanding the foregoing, (i) the rate of
interest on, and the term or amount of, the Notes or the date of any payment
due hereunder or thereunder, (ii) the amount of the Commitments of the Lenders
(other than changes in Commitments pursuant to Assignments under §19 or
pursuant to changes in the Total Commitment under §2.2), (iii) the amount of any
fee payable to a Lender hereunder, (iv) any provision herein or in any of the
Loan Documents which expressly requires consent of all the Lenders (including
this §26), (v) the funding provisions of §2.5 and §2.7 hereof, (vi) the rights,
duties and obligations of the Agent specified in §14 hereof, and (vii) the
definitions of Majority Lenders or Requisite Lenders, may not be amended or
compliance therewith waived without the written consent of each Lender affected
thereby, nor may the Agent release the Borrower or any Guarantor from its
liability with respect to the Obligations (other than pursuant to §18.8),
without first obtaining the written consent of all the Lenders.  Unless otherwise directed by the Agent, any
request for amendment or waiver shall be made on no less than ten (10) Business
Days notice to the Lenders. Unless otherwise directed by the Agent, the failure
of a Lender to respond to a request for waiver or amendment shall be deemed to
constitute such Lender’s consent to such waiver or amendment


 


72

















 


requested (unless such waiver or amendment
requires the consent of all Lenders). 
No waiver shall extend to or affect any obligation not expressly waived
or impair any right consequent thereon. No course of dealing or delay or
omission on the part of the Agent or any Lender in exercising any right shall
operate as a waiver thereof or otherwise be prejudicial thereto. No notice to
or demand upon the Borrower shall entitle the Borrower to other or further
notice or demand in similar or other circumstances.


 


§27.                          SEVERABILITY. 
The provisions of this Agreement are severable, and if any one clause or
provision hereof shall be held invalid or unenforceable in whole or in part in
any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part thereof, in such jurisdiction, and shall not
in any manner affect such clause or provision in any other jurisdiction, or any
other clause or provision of this Agreement in any jurisdiction.


 


§28.                          ACKNOWLEDGMENTS. 
Each of the Borrower and the Guarantors hereby acknowledges that: (i)
neither the Agent nor any Lender has any fiduciary relationship with, or
fiduciary duty to, the Borrower and the Guarantors arising out of or in connection
with this Agreement or any of the other Loan Documents; (ii) the relationship
in connection herewith between the Agent and the Lenders, on the one hand, and
the Borrower and each Guarantor, on the other hand, is solely that of creditor
and debtor and (iii) no joint venture or partnership among any of the parties
hereto is created hereby or by the other Loan Documents, or otherwise exists by
virtue of the Facility or the Loans.


 


§29.                          CONSENT TO AMENDMENT AND
RESTATEMENT; TRANSITIONAL ARRANGEMENTS.


 


§29.1.                 Existing Credit Agreement Superseded.  This
Agreement shall supersede the Existing Credit Agreement in its entirety, except
as provided in this § 29.  On the
Effective Date, the rights and obligations of the parties under the Existing
Credit Agreement and the “Notes” defined therein shall be subsumed within and
be governed by this Agreement and the Notes, provided, however,
that any of the “Loans” (as defined in the Existing Credit Agreement)
outstanding under the Existing Credit Agreement shall, for purposes of this
Agreement, be Loans hereunder.  This
Agreement is given as a substitution of, and not as a payment of, the
obligation of Borrower under the Existing Credit Agreement and is not intended
to constitute a novation of the Existing Credit Agreement.


 


§29.2.                 [Intentionally Omitted].


 


§29.3.                 Interest and Fees under the Existing
Agreement.  All interest and all commitment, facility
and other fees and expenses that have accrued before the date hereof under or
in respect of the Existing Credit Agreement shall be calculated as of the
Effective Date (prorated in the case of any fractional periods), and Borrower
shall continue to be liable in respect of such amounts to the Lenders party to
the Existing Credit Agreement and to Agent, in accordance with the Existing
Credit Agreement, as if the Existing Credit Agreement were still in effect.


 


73

















 


[The remainder of this page intentionally left blank]


 


74

















 


IN
WITNESS WHEREOF, the undersigned have duly executed this Agreement as a sealed
instrument as of the date first set forth above.


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SL
  GREEN OPERATING PARTNERSHIP, L.P.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:  SL GREEN REALTY CORP.,
  its general

  
	
   

  	
   

  	
  partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  GUARANTOR:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SL GREEN REALTY CORP.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
							



 

















 


	
   

  	
  GUARANTOR:

  
	
   

  	
   

  	
   

  
	
   

  	
  Green
  1412 Preferred LLC,

  
	
   

  	
  a
  Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  SL
  Green Operating Partnership, L.P.,

  a Delaware limited partnership,

  its managing member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  SL
  Green Realty Corp.,

  a Maryland corporation,

  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GUARANTOR:

  
	
   

  	
   

  	
   

  
	
   

  	
  Green
  Funding W26 LLC,

  
	
   

  	
  a
  New York limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  SL
  Green Funding LLC,

  a Delaware limited liability company,

  its managing member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  SL
  Green Operating Partnership, L.P.,

  a Delaware limited partnership,

  its managing member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  SL
  Green Realty Corp.,

  a Maryland corporation,

  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  GUARANTOR:

  
	
   

  	
   

  	
   

  
	
   

  	
  SL
  Green Funding LLC,

  
	
   

  	
  a
  New York limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GUARANTOR:

  
	
   

  	
   

  	
   

  
	
   

  	
  SL
  Green Operating Partnership, L.P.,

  
	
   

  	
  a
  Delaware limited partnership

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  SL
  Green Realty Corp.,

  a Maryland corporation,

  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GUARANTOR:

  
	
   

  	
   

  	
   

  
	
   

  	
  469
  Preferred Member LLC,

  
	
   

  	
  a
  Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  GUARANTOR:

  
	
   

  	
   

  	
   

  
	
   

  	
  SLG
  500-512 Funding LLC,

  
	
   

  	
  a
  Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GUARANTOR:

  
	
   

  	
   

  	
   

  
	
   

  	
  SLG
  40 Wall Funding LLC,

  
	
   

  	
  a
  Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GUARANTOR:

  
	
   

  	
   

  	
   

  
	
   

  	
  SLG
  Penncom Funding LLC,

  
	
   

  	
  a
  Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  GUARANTOR:

  
	
   

  	
   

  	
   

  
	
   

  	
  SLG
  609 Funding LLC,

  
	
   

  	
  a
  Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  ADMINISTRATIVE AGENT AND COLLATERAL

  AGENT:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  FLEET
  NATIONAL BANK,

  
	
   

  	
   

  	
   

  	
   

  	
  As
  Administrative Agent and Collateral

  Agent

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  LENDER:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  FLEET
  NATIONAL BANK,

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  LENDER:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  WACHOVIA
  BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  LENDER:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SOVEREIGN
  BANK

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
							



 

















 


SCHEDULE 1


 


Lenders; Domestic and LIBOR Lending Offices


 


	
  FLEET NATIONAL BANK

  
	
  100 Federal Street

  
	
  Boston, MA 02110

  
	
  Attn:

  	
  Structured Real Estate

  
	
  Fax:

  	
  (617) 434-1337

  
	
  Tel:

  	
  (617)
  434-8501

  
	
   

  
	
   

  
	
  WACHOVIA BANK NATIONAL ASSOCIATION

  
	
  Wachovia
  Securities

  
	
  301
  S. College Street, NC5604

  
	
  Charlotte,
  NC 28288

  
	
  Attn:
  Rex Rudy

  
	
  Tel:
  704-383-6506

  
	
  Fax:
  704-383-6205

  
	
   

  
	
  SOVEREIGN BANK

  
	
  75 State Street

  
	
  MA 1SST 0411

  
	
  Boston, MA 02109

  
	
  Attn: T. Gregory Donohue

  
	
  Fax: (617) 757-5652

  
	
  Tel: (617) 757-5578

  



 

















 


SCHEDULE 1.2


 


Commitments and Commitment Percentages


 


	
  Financial Institution

  	
   

  	
  Commitment

  	
   

  	
  Commitment
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Fleet National Bank

  	
   

  	
  $

  	
  25,000,000

  	
   

  	
  33.3333

  	
  %

  
	
  Wachovia Bank National Association

  	
   

  	
  $

  	
  25,000,000

  	
   

  	
  33.3333

  	
  %

  
	
  Sovereign Bank

  	
   

  	
  $

  	
  25,000,000

  	
   

  	
  33.3333

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOTALS

  	
   

  	
  $

  	
  75,000,000

  	
   

  	
  100

  	
  %