Exhibit 10.2


 


TERM LOAN AGREEMENT


 


BY AND AMONG


 


NEW PLAN EXCEL REALTY TRUST, INC.,


 


THE LENDERS PARTY HERETO,


 


AND


 


CITICORP NORTH AMERICA, INC.,


 


AS ADMINISTRATIVE AGENT


 


DATED AS OF APRIL 5, 2005


 


 


CITIGROUP GLOBAL MARKETS INC.


 


AND


 


MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,


 


AS JOINT LEAD ARRANGERS AND JOINT BOOK RUNNING MANAGERS


 


AND


 


MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,


 


AS SYNDICATION AGENT


 





















 


TABLE OF
CONTENTS


 


	
  1.

  	
  DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  1.1

  	
  Defined Terms

  	
   

  
	
   

  	
  1.2

  	
  Other Interpretive Provisions

  	
   

  
	
   

  	
  1.3

  	
  Accounting
  Terms

  	
   

  
	
   

  	
  1.4

  	
  Rounding

  	
   

  
	
   

  	
  1.5

  	
  Times of Day

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  AMOUNT AND TERMS OF LOANS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  2.1

  	
  Loans

  	
   

  
	
   

  	
  2.2

  	
  Notes

  	
   

  
	
   

  	
  2.3

  	
  Procedure for Loan Borrowings

  	
   

  
	
   

  	
  2.4

  	
  Repayment of Loans; Evidence of Debt

  	
   

  
	
   

  	
  2.5

  	
  Prepayments of the Loans

  	
   

  
	
   

  	
  2.6

  	
  Conversions

  	
   

  
	
   

  	
  2.7

  	
  Interest Rate and Payment Dates

  	
   

  
	
   

  	
  2.8

  	
  Substituted Interest Rate

  	
   

  
	
   

  	
  2.9

  	
  Taxes; Net Payments

  	
   

  
	
   

  	
  2.10

  	
  Illegality

  	
   

  
	
   

  	
  2.11

  	
  Increased Costs

  	
   

  
	
   

  	
  2.12

  	
  Indemnification for Break Funding Losses

  	
   

  
	
   

  	
  2.13

  	
  Use of Proceeds

  	
   

  
	
   

  	
  2.14

  	
  Capital Adequacy

  	
   

  
	
   

  	
  2.15

  	
  Administrative Agent’s Records

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  PAYMENTS; APPLICATION OF PAYMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  4.

  	
  REPRESENTATIONS AND WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  4.1

  	
  Existence and Power

  	
   

  
	
   

  	
  4.2

  	
  Authority

  	
   

  
	
   

  	
  4.3

  	
  Binding Agreement

  	
   

  
	
   

  	
  4.4

  	
  Subsidiaries; DownREIT Partnerships

  	
   

  
	
   

  	
  4.5

  	
  Litigation

  	
   

  
	
   

  	
  4.6

  	
  Required Consents

  	
   

  
	
   

  	
  4.7

  	
  No Conflicting Agreements

  	
   

  
	
   

  	
  4.8

  	
  Compliance with Applicable Laws

  	
   

  
	
   

  	
  4.9

  	
  Taxes

  	
   

  
	
   

  	
  4.10

  	
  Governmental Regulations

  	
   

  
	
   

  	
  4.11

  	
  Federal Reserve Regulations; Use of Loan
  Proceeds

  	
   

  
	
   

  	
  4.12

  	
  Plans; Multiemployer Plans

  	
   

  
	
   

  	
  4.13

  	
  Financial Statements

  	
   

  
	
   

  	
  4.14

  	
  Property

  	
   

  
	
   

  	
  4.15

  	
  Franchises, Intellectual Property, Etc.

  	
   

  
	
   

  	
  4.16

  	
  Environmental Matters

  	
   

  
	
   

  	
  4.17

  	
  Labor Relations

  	
   

  



 


i





















 


	
   

  	
  4.18

  	
  Solvency

  	
   

  
	
   

  	
  4.19

  	
  REIT Status

  	
   

  
	
   

  	
  4.20

  	
  List of Unencumbered Assets

  	
   

  
	
   

  	
  4.21

  	
  Operation of Business

  	
   

  
	
   

  	
  4.22

  	
  No Misrepresentation

  	
   

  
	
   

  	
  4.23

  	
  Anti-Terrorism Laws

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
  CONDITIONS TO EFFECTIVENESS OF THIS
  AGREEMENT

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  5.1

  	
  Evidence of Action

  	
   

  
	
   

  	
  5.2

  	
  This Agreement

  	
   

  
	
   

  	
  5.3

  	
  Notes

  	
   

  
	
   

  	
  5.4

  	
  Guaranty

  	
   

  
	
   

  	
  5.5

  	
  Litigation

  	
   

  
	
   

  	
  5.6

  	
  Opinion of Counsel to the Borrower

  	
   

  
	
   

  	
  5.7

  	
  Fees and Expenses of Special Counsel

  	
   

  
	
   

  	
  5.8

  	
  Compliance

  	
   

  
	
   

  	
  5.9

  	
  Loan Closings

  	
   

  
	
   

  	
  5.10

  	
  Documentation and Proceedings

  	
   

  
	
   

  	
  5.11

  	
  Required Acts and Conditions

  	
   

  
	
   

  	
  5.12

  	
  Approval of Special Counsel

  	
   

  
	
   

  	
  5.13

  	
  Other Documents

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
  [Intentionally Omitted.]

  	
   

  
	
   

  	
   

  	
   

  
	
  7.

  	
  AFFIRMATIVE COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  7.1

  	
  Financial Statements

  	
   

  
	
   

  	
  7.2

  	
  Certificates; Other Information

  	
   

  
	
   

  	
  7.3

  	
  Legal Existence

  	
   

  
	
   

  	
  7.4

  	
  Taxes

  	
   

  
	
   

  	
  7.5

  	
  Insurance

  	
   

  
	
   

  	
  7.6

  	
  Payment of Indebtedness and Performance of
  Obligations

  	
   

  
	
   

  	
  7.7

  	
  Maintenance of Property; Environmental
  Investigations

  	
   

  
	
   

  	
  7.8

  	
  Observance of Legal Requirements

  	
   

  
	
   

  	
  7.9

  	
  Inspection of Property; Books and Records;
  Discussions

  	
   

  
	
   

  	
  7.10

  	
  Licenses, Intellectual Property

  	
   

  
	
   

  	
  7.11

  	
  Additional Guarantors

  	
   

  
	
   

  	
  7.12

  	
  REIT Status; Operation of Business

  	
   

  
	
   

  	
  7.13

  	
  More Restrictive Agreements

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
  NEGATIVE COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  8.1

  	
  Liens

  	
   

  
	
   

  	
  8.2

  	
  Merger, Consolidation and Certain Dispositions
  of Property

  	
   

  
	
   

  	
  8.3

  	
  Investments, Loans, Etc.

  	
   

  
	
   

  	
  8.4

  	
  Business Changes

  	
   

  
	
   

  	
  8.5

  	
  Amendments to Organizational Documents

  	
   

  
	
   

  	
  8.6

  	
  [Intentionally Omitted.]

  	
   

  
	
   

  	
  8.7

  	
  Sale and Leaseback

  	
   

  



 


ii





















 


	
   

  	
  8.8

  	
  Transactions with Affiliates

  	
   

  
	
   

  	
  8.9

  	
  Issuance of Additional Capital Stock by
  Subsidiary Guarantors

  	
   

  
	
   

  	
  8.10

  	
  Hedging Agreements

  	
   

  
	
   

  	
  8.11

  	
  Restricted Payments

  	
   

  
	
   

  	
  8.12

  	
  Unencumbered Assets Coverage Ratio

  	
   

  
	
   

  	
  8.13

  	
  Fixed Charge Coverage Ratio

  	
   

  
	
   

  	
  8.14

  	
  Minimum Tangible Net Worth

  	
   

  
	
   

  	
  8.15

  	
  Maximum Total Indebtedness; Maximum Secured
  Indebtedness

  	
   

  
	
   

  	
  8.16

  	
  Unsecured Indebtedness to Unencumbered
  Assets Ratio

  	
   

  
	
   

  	
  8.17

  	
  Maximum Book Value of Ancillary Assets

  	
   

  
	
   

  	
  8.18

  	
  Development Activity

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
  DEFAULT

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  9.1

  	
  Events of Default

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
  THE AGENT

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  10.1

  	
  Appointment and Authority

  	
   

  
	
   

  	
  10.2

  	
  Rights as a Lender

  	
   

  
	
   

  	
  10.3

  	
  Exculpatory Provisions

  	
   

  
	
   

  	
  10.4

  	
  Reliance by Administrative Agent

  	
   

  
	
   

  	
  10.5

  	
  Notice of Default

  	
   

  
	
   

  	
  10.6

  	
  Delegation of Duties

  	
   

  
	
   

  	
  10.7

  	
  Indemnification

  	
   

  
	
   

  	
  10.8

  	
  Successor Administrative Agent

  	
   

  
	
   

  	
  10.9

  	
  Non-Reliance on Administrative Agent and
  Other Lenders

  	
   

  
	
   

  	
  10.10

  	
  No Other Duties, Etc.

  	
   

  
	
   

  	
  10.11

  	
  Administrative Agent May File Proofs
  of Claim

  	
   

  
	
   

  	
  10.12

  	
  Guaranty Matters

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  11.

  	
  OTHER PROVISIONS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  11.1

  	
  Amendments and Waivers

  	
   

  
	
   

  	
  11.2

  	
  Notices

  	
   

  
	
   

  	
  11.3

  	
  No Waiver; Cumulative Remedies

  	
   

  
	
   

  	
  11.4

  	
  Survival of Representations and Warranties

  	
   

  
	
   

  	
  11.5

  	
  Payment of Expenses and Taxes

  	
   

  
	
   

  	
  11.6

  	
  Lending Offices

  	
   

  
	
   

  	
  11.7

  	
  Successors and Assigns

  	
   

  
	
   

  	
  11.8

  	
  Counterparts; Integration; Effectiveness

  	
   

  
	
   

  	
  11.9

  	
  Adjustments; Set off

  	
   

  
	
   

  	
  11.10

  	
  Lenders’ Representations

  	
   

  
	
   

  	
  11.11

  	
  Indemnity

  	
   

  
	
   

  	
  11.12

  	
  Governing Law

  	
   

  
	
   

  	
  11.13

  	
  Headings Descriptive

  	
   

  
	
   

  	
  11.14

  	
  Severability

  	
   

  
	
   

  	
  11.15

  	
  Consent to Jurisdiction

  	
   

  
	
   

  	
  11.16

  	
  Service of Process

  	
   

  
	
   

  	
  11.17

  	
  No Limitation on Service or Suit

  	
   

  



 


iii





















 


	
   

  	
  11.18

  	
  WAIVER OF TRIAL BY JURY

  	
   

  
	
   

  	
  11.19

  	
  Termination

  	
   

  
	
   

  	
  11.20

  	
  Replacement Notes

  	
   

  
	
   

  	
  11.21

  	
  USA PATRIOT Act Notice

  	
   

  
	
   

  	
  11.22

  	
  Replacement of Lenders

  	
   

  
	
   

  	
  11.23

  	
  Relationships

  	
   

  



 


iv





















 


LIST OF EXHIBITS AND SCHEDULES


 


	
  EXHIBITS:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  -

  	
  Assignment
  and Assumption

  
	
   

  	
   

  	
   

  
	
  Exhibit B

  	
  -

  	
  Commitments
  and Domestic LIBOR Lending Offices

  
	
   

  	
   

  	
   

  
	
  Exhibit C

  	
  -

  	
  Compliance
  Certificate

  
	
   

  	
   

  	
   

  
	
  Exhibit D

  	
  -

  	
  Guaranty

  
	
   

  	
   

  	
   

  
	
  Exhibit E

  	
  -

  	
  Note

  
	
   

  	
   

  	
   

  
	
  Exhibit F

  	
  -

  	
  Form of
  Notice of Conversion

  
	
   

  	
   

  	
   

  
	
  Exhibit G

  	
  -

  	
  Secretary’s
  Certificate Borrower

  
	
   

  	
   

  	
   

  
	
  Exhibit H

  	
  -

  	
  Secretary’s
  Certificate Guarantor

  
	
   

  	
   

  	
   

  
	
  SCHEDULES:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 4.4

  	
  -

  	
  Subsidiaries
  (including Subsidiary Guarantors)

  
	
   

  	
   

  	
   

  
	
  Schedule 4.5

  	
  -

  	
  Litigation

  
	
   

  	
   

  	
   

  
	
  Schedule 4.12

  	
  -

  	
  Plans

  
	
   

  	
   

  	
   

  
	
  Schedule 4.20

  	
   

  	
  List of
  Unencumbered Assets

  



 


v





















 


TERM LOAN AGREEMENT, dated as of April 5, 2005, by and among NEW
PLAN EXCEL REALTY TRUST, INC., a Maryland corporation (the “Borrower”),
each lender party hereto or which becomes a “Lender” pursuant to the provisions
of Section 11.7 (each a “Lender” and, collectively, the “Lenders”),
and CITICORP NORTH AMERICA, INC. (“CNAI”), as administrative agent for
the Lenders (in such capacity, the “Administrative Agent”).


 


RECITALS


 


WHEREAS, the Lenders, at the request of the Borrower, have agreed to
make the Loans (as hereinafter defined) to the Borrower, the proceeds of which
will be used to refinance existing debt and to provide financing for general
corporate purposes of the Borrower and its Subsidiaries (as hereinafter
defined); and


 


WHEREAS, certain Subsidiaries of the Borrower have agreed to guarantee
the Obligations (as hereinafter defined);


 


NOW, THEREFORE, in consideration of the recitals herein and the mutual
covenants contained herein, the parties hereto hereby agree as follows:


 


1.                                       DEFINITIONS.


 


1.1                                 Defined
Terms.


 


As used in this Agreement, terms defined in the preamble have the
meanings therein indicated, and the following terms have the following
meanings:


 


“Accountants”:  any of
PricewaterhouseCoopers LLP; Deloitte & Touche LLP; Ernst &
Young LLP; KPMG LLP; or any successor to any of the foregoing; or such other
firm of certified public accountants selected by the Borrower and satisfactory
to the Administrative Agent.


 


“Adjusted Consolidated Total Assets”:  determined on a Consolidated basis in
accordance with GAAP for Borrower and its Subsidiaries, the sum (without
duplication) of the following:


 


(i)                                     the
Operating Property Value; plus


 


(ii)                                  the
book value of Land Assets, Redevelopment Assets, New Construction Assets and
Notes Receivable of Borrower and its Subsidiaries (including, without
limitation, all capitalized costs incurred in connection therewith) on the last
day of the fiscal quarter just ended; plus


 


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


 





















 


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


 


Adjusted Consolidated Total Assets shall be calculated on a pro forma
basis as if assets acquired during the relevant period were owned as of the
beginning of the relevant period, and all assets disposed of during the
relevant period were not owned during any portion of the relevant period.


 


“Adjusted Net Operating Income”: 
for any period, the aggregate amount of the Net Operating Income from
each Unencumbered Asset or Operating Property, as applicable, during such
period, less the Capital Expense Reserve for such Unencumbered Asset or
Operating Property, as applicable, during such period.


 


“Administrative Agent’s Office”: the Administrative Agent’s address
as set forth in Section 11.2, or such other address as the Administrative
Agent may from time to time notify to the Borrower and the Lenders.


 


“Administrative Questionnaire”: an Administrative Questionnaire
in a form supplied by the Administrative Agent.


 


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


 


“Affected Advance”:  as
defined in Section 2.8.


 


“Affected Principal Amount”: 
in the event that (i) the Borrower shall fail for any reason to
borrow or convert after it shall have notified the Administrative Agent of its
intent to do so in any instance in which it shall have requested a LIBOR Loan
on the Effective Date or pursuant to Section 2.6, an amount equal to the
principal amount of such LIBOR Loan; (ii) a LIBOR Loan shall terminate for
any reason prior to the last day of the Interest Period applicable thereto, an
amount equal to the principal amount of such LIBOR Loan; or (iii) the
Borrower shall prepay or repay all or any part of the principal amount of a
LIBOR Loan prior to the last day of the Interest Period applicable thereto
(including, without limitation, any mandatory prepayment or a prepayment
resulting from acceleration or illegality), an amount equal to the principal
amount of such LIBOR Loan so prepaid or repaid.


 


“Affiliate”:  as to any
Person, any other Person which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person.  For purposes of this definition, control of a
Person shall mean the power, direct or indirect, (i) to vote 10% or more
of the securities having ordinary voting power for the election of directors of
such Person or (ii) to direct or cause the direction of the management and
policies of such Person, whether by contract or otherwise.


 


“Agreement”:  this Term
Loan Agreement, as the same may be amended, supplemented or otherwise modified
from time to time.


 


2





















 


“Ancillary Assets”:  at
any time (without duplication), (a) all Real Property of the Borrower and
its Subsidiaries which is (i) a mortgage, (ii) a New Construction
Asset, or (iii) any other Real Property other than an open air shopping
center (including single tenant retail properties), and (b) all
Investments of the Borrower and its Subsidiaries of the type described in Section 8.3(h) and
(q), including, without limitation, all Investments of the Borrower and its
Subsidiaries in any FIN 46 Entities.


 


“Applicable Lending Office”: 
in respect of any Lender, (i) in the case of such Lender’s Prime
Rate Loans, its Domestic Lending Office and (ii) in the case of such
Lender’s LIBOR Loans, its LIBOR Lending Office.


 


“Applicable Margin”:  with
respect to the unpaid principal balance of Prime Rate Loans or LIBOR Loans, at
all times during which the applicable Pricing Level set forth below is in
effect, the respective percentage set forth below next to such Pricing Level:


 


	
  Pricing Level

  	
   

  	
  LIBOR Loans

  	
   

  	
  Prime Rate Loans

  	
   

  
	
  Pricing Level I

  	
   

  	
  0.750

  	
  %

  	
  0.000

  	
  %

  
	
  Pricing Level II

  	
   

  	
  0.850

  	
  %

  	
  0.000

  	
  %

  
	
  Pricing Level III

  	
   

  	
  1.000

  	
  %

  	
  0.000

  	
  %

  
	
  Pricing Level IV

  	
   

  	
  1.375

  	
  %

  	
  0.250

  	
  %

  



 


Changes in the Applicable Margin resulting from a change in a Pricing
Level shall become effective as of the opening of business upon the date of any
change in the Senior Debt Rating of the Borrower, as determined by S&P or
Moody’s, as the case may be, which would affect the applicable Pricing Level.


 


“Approved Fund”: any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate
of an entity that administers or manages a Lender.


 


“Asset Sale”:  the sale or
other disposition by the Borrower or any Subsidiary Guarantor (the “Seller”)
to any Person other than the Borrower or a Subsidiary Guarantor of (i) any
equity Securities held by the Seller in any of its Subsidiaries or Joint
Ventures (other than any such equity Securities to the extent that the gross
purchase price thereof sold in any single transaction or related series of
transactions is equal to $35,000,000 or less) or (ii) any other Property
of the Seller (other than any such Property to the extent that the gross
purchase price of such Property sold in any single transaction or related
series of transactions is equal to $35,000,000 or less).


 


“Assignment and Assumption Agreement”:  an assignment and assumption entered into by
a Lender and an Eligible Assignee (with the consent of any party whose consent
is required by Section 11.7), and accepted by the Administrative Agent, in
substantially the form of Exhibit A or any other form approved by
the Administrative Agent.


 


“Authorized Signatory”: 
the chairman of the board, the chief executive officer, the president,
any executive vice president, the Chief Financial Officer or any other duly
authorized officer (acceptable to the Administrative Agent) of the Borrower.


 


3





















 


“Benefited Lender”:  as
defined in Section 11.9.


 


“Book Managers”: 
Citigroup and MLPFS, in their capacities as joint book running managers.


 


“Borrower’s Interest”: 
for any period, (i) with respect to Unencumbered Assets or
Operating Properties, as applicable, owned by a DownREIT Partnership or a
wholly owned Subsidiary of a DownREIT Partnership, a fraction, expressed as a
percentage, the numerator of which is the Net Operating Income of such
Unencumbered Assets or Operating Properties, as applicable, for such period,
less any distributions required to be made, directly or indirectly, to partners
or members of such DownREIT Partnership, other than the Borrower and its
Subsidiaries, and the denominator of which is the Net Operating Income of such
Unencumbered Assets or Operating Properties, as applicable, for such period,
and (ii) with respect to any Ancillary Asset or Redevelopment Asset, the
percentage of profits and losses with respect thereto to which the Borrower or
its wholly owned Subsidiaries, directly or indirectly, may be entitled to
receive for such period.


 


“Borrowing Date”: the date on which the Borrower requests the
Lenders to make the Loans, which date shall be the Effective Date.


 


“Business Day”:  any day
other than a Saturday, Sunday or other day on which commercial banks are
authorized to close under the Laws of, or are in fact closed in, the state
where the Administrative Agent’s Office is located and, if such day relates to
any LIBOR Loan, means any such day on which dealings in Dollar deposits are
conducted by and between banks in the London interbank eurodollar market.


 


“Capital Expense Reserve”: 
during any period, with respect to each Unencumbered Asset or Operating
Property, as applicable, an amount equal to (A) a per annum rate of $.15
times (B) the total Net Rentable Area of such Unencumbered Asset or
Operating Property, as applicable (in each case whether or not such reserves
are actually established by the Borrower).


 


“Capital Leases”:  leases
which have been, or under GAAP are required to be, capitalized.


 


“Cash”:  means money,
currency or a credit balance in a Deposit Account.


 


“Change of Control”:  the
occurrence of any one of the following events:


 


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


 


(b)                                 during
any twelve month period on or after the Effective Date, individuals who at the
beginning of such period constituted the Board of Directors of the Borrower
(together with any new directors whose election by the Board of Directors or
whose nomination for election by the shareholders of the Borrower was approved
by a vote of at least a majority of the members of the Board of Directors then
in office who either were members of the Board of Directors at the beginning of
such period or whose election or nomination for election was


 


4





















 


previously so approved) cease for any reason
to constitute a majority of the members of the Board of Directors then in
office; or


 


(c)                                  there
occurs a change of control of the Borrower of a nature that would be required
to be reported in response to Item 1a of Form 8 K in effect on the date
hereof (or any successor provision, including, without limitation, Item 5.01 set
forth in SEC Release 33-8400; 34-49424, if and when such changes become
effective) filed pursuant to Section 13 or 15 under the Securities
Exchange Act of 1934, or in any other filing by the Borrower with the
Securities and Exchange Commission; or


 


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


 


“Chief Financial Officer”: 
at any time, the chief financial officer of the Borrower, or if the
Borrower does not have a chief financial officer at such time, the officer
designated by the Borrower as its principal financial officer or such other
officer of the Borrower that is acceptable to the Administrative Agent.


 


“Citigroup”:  Citigroup
Global Markets Inc.


 


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


 


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


 


“Commitment Amount”:  the
amount set forth next to the name of such Lender in Exhibit B under
the heading “Commitments” as such Lender’s Commitment Amount, as the same may
be changed in accordance with the terms of this Agreement.


 


“Commitment Percentage”: 
on any day, and as to any Lender, the quotient of (i) such Lender’s
Commitment Amount on such day, divided by (ii) the aggregate of the
Commitment Amounts of all Lenders on such day.


 


“Compliance Certificate”: 
a certificate substantially in the form of Exhibit C.


 


“Consolidated”:  the
Borrower and its Subsidiaries which are consolidated for financial reporting purposes.  Notwithstanding anything contained herein to
the contrary, for purposes of this Agreement, the phrase “Borrower and its
Subsidiaries determined on a Consolidated basis in accordance with GAAP” (and
similar phrases having the same meaning) shall not be deemed to include the
consolidation of FIN 46 Entities (other than the inclusion of the applicable
pro-rata share of assets, liabilities, income or loss attributable to such FIN
46 Entities to the extent required pursuant to this Agreement).


 


5





















 


“Consolidated EBITDA”: 
with respect to any period an amount equal to the EBITDA of Borrower and
its Subsidiaries for such period, determined on a Consolidated basis in
accordance with GAAP.


 


“Consolidated Fixed Charges”: 
during any period, the sum of each of the following with respect to the
Borrower and its Subsidiaries (without duplication), determined on a
Consolidated basis in accordance with GAAP: 
(i) the aggregate amount of all interest expense, both expensed and
capitalized (including Consolidated Interest Expense) for such period, (ii) the
aggregate of all scheduled principal amounts that become payable during such
period in respect of any Indebtedness of the Borrower or its Subsidiaries
(excluding balloon payments at maturity) and (iii) the aggregate amount of
all cash dividends paid during such period in respect of preferred equity of
the Borrower or its Subsidiaries (including, without limitation, in respect of
preferred operating units).


 


“Consolidated Interest Expense”: 
for any period, interest and fees accrued, accreted or paid by the
Borrower and its Subsidiaries during such period in respect of Consolidated
Total Indebtedness, determined in accordance with GAAP, including (a) the
amortization of debt discounts to the extent included in interest expense in
accordance with GAAP, (b) the amortization of all fees (including fees
with respect to Hedging Agreements entered into by the Borrower or any of its
Subsidiaries) payable in connection with the incurrence of any Indebtedness to
the extent included in interest expense in accordance with GAAP and (c) the
portion of any rents payable under capital leases allocable to interest expense
in accordance with GAAP.


 


“Consolidated Total Indebtedness”:  as of any date, the aggregate principal
amount of all Indebtedness of the Borrower and its Subsidiaries determined on a
Consolidated basis in accordance with GAAP, plus, if not otherwise required to
be reflected in the Borrower’s Consolidated balance sheet (and without
duplication) (i) Contingent Obligations of the Borrower and its
Subsidiaries on such date which are required in accordance with GAAP to be
disclosed in a footnote to any such balance sheet, and (ii) any guarantee
by the Borrower of any Indebtedness of an unconsolidated Subsidiary or Joint
Venture in which the Borrower is a direct or indirect investor (to the full
extent of the amount of such guaranteed Indebtedness on such date); provided,
however, that with respect to Joint Ventures in which Borrower is a direct or
indirect investor that are not consolidated in the Borrower’s Consolidated
balance sheet or that are FIN 46 Entities, Consolidated Total Indebtedness
shall also include (x) the aggregate principal amount of all Indebtedness of
such Joint Ventures if such Indebtedness is recourse to the Borrower or one of
its Subsidiaries, and (y) Borrower’s pro rata share of the aggregate principal
amount of all Indebtedness of such Joint Ventures if such Indebtedness is
Non-Recourse Indebtedness.  Notwithstanding
the foregoing, unfunded portions of any Indebtedness (and any Contingent
Obligations relating solely to such unfunded amounts) shall not be included in
Consolidated Total Indebtedness.


 


“Contingent Obligation”: 
as to any Person, any obligation of such Person guaranteeing or in
effect guaranteeing any Indebtedness, leases, dividends or other obligations (“Primary
Obligations”) of any other Person (the “Primary Obligor”) in any manner,
whether directly or indirectly, and whether arising from partnership or keep
well agreements, including, without limitation, any obligation of such Person,
whether contingent or not contingent (a) to purchase


 


6





















 


any such Primary Obligation or any Property
constituting direct or indirect security therefor, (b) to advance or
supply funds (i) for the purchase or payment of any such Primary
Obligation or (ii) to maintain working capital or equity capital of the
Primary Obligor or otherwise to maintain net worth, solvency or other financial
statement condition of the Primary Obligor, (c) to purchase Property,
securities or services primarily for the purpose of assuring the beneficiary of
any such Primary Obligation of the ability of the Primary Obligor to make
payment of such Primary Obligation, or (d) otherwise to assure, protect
from loss or hold harmless the beneficiary of such Primary Obligation against
loss in respect thereof; provided, however, that the term Contingent Obligation
shall not include (a) the endorsement of instruments for deposit or
collection in the ordinary course of business, or (b) guarantees or
carve-outs that constitute Non-Recourse Exclusions until a claim is made with
respect thereto, and then shall be included only to the extent of the amount of
such claim.  The term Contingent
Obligation shall also include the liability of a general partner in respect of
the liabilities of the partnership in which it is a general partner, but shall
not include the liability of a member (managing or otherwise) of a limited
liability company in respect of the liabilities of such limited liability
company to the extent not imposed by agreement or by law.  The amount of any Contingent Obligation of a
Person shall be deemed to be an amount equal to the stated or determinable
amount of the Primary Obligation in respect of which such Contingent Obligation
is made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by such Person in good faith.


 


“Conversion Date”:  the
date on which a LIBOR Loan is converted to a Prime Rate Loan, or the date on
which a Prime Rate Loan is converted to a LIBOR Loan, or the date on which a
LIBOR Loan is converted to a new LIBOR Loan, all in accordance with Section 2.6.


 


“Credit Party”:  the
Administrative Agent, the Lead Arrangers, the Syndication Agent, the Book
Managers, each Lender, and their successors and assigns.


 


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


 


“Defaulting Lender”:  at
any time, any Lender that, at such time, (i) has failed to comply with any
of its obligations to make a Loan as required pursuant to this Agreement within
one (1) Business Day of the date required to be funded by it hereunder, (ii) has
failed to pay to the Administrative Agent or any Lender any other amount owed
by such Lender pursuant to the terms of this Agreement or any of the other Loan
Documents within one (1) Business Day of the date when due, unless the
subject of a good faith dispute, or (iii) has been deemed insolvent or
become subject to a bankruptcy or insolvency proceeding.


 


“Deposit Account”:  means
a demand, time, savings, passbook or like account with a bank, savings and loan
association, credit union or like organization, other than an account evidenced
by or constituting a certificate of deposit.


 


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


 


7





















 


“Domestic Lending Office”: 
in respect of any Lender, initially, the office or offices of such
Lender designated as such on Exhibit B; thereafter, such other
office of such Lender through which it shall be making or maintaining Prime
Rate Loans, as reported by such Lender to the Administrative Agent and the
Borrower.


 


“DownREIT Partnership”: 
Excel Realty Partners, L.P. and any other partnership or limited
liability company hereafter created by the Borrower for the purpose of
acquiring assets qualifying as “real estate assets” under Section 856(c) of
the Code through the issuance of partnership or limited liability company units
in such partnership or limited liability company to third parties, provided
that, in the case of each such entity (including Excel Realty Partners, L.P.) (i) the
Borrower or a wholly owned Subsidiary of the Borrower is the sole general
partner or managing member of such partnership or limited liability company, as
the case may be, and (ii) the Borrower or its wholly owned Subsidiary
shall be entitled to receive not less than 95% of the net income and gains
before depreciation, if any, from such partnership or limited liability company
after the limited partners or non managing members of such partnership or
limited liability company receive a stipulated distribution. Any partnership or
limited liability company created after the Effective Date must be approved by
the Administrative Agent as a “DownREIT Partnership” for purposes of being
included in this definition.


 


“EBITDA”:  with respect to
a Person or a Subsidiary of a Person (or any asset of a Person or a Subsidiary
of such Person) for any period, an amount equal to the sum of (a) the net
income (or loss) of such Person (or attributable to such asset) for such period
plus (b) depreciation and amortization, interest, and any extraordinary or
non recurring losses or charges for impairment of real estate deducted in
calculating such net income minus (c) any extraordinary or non-recurring
gains included in calculating such net income, all as determined in accordance
with GAAP.  EBITDA shall be calculated on
a pro forma basis as if assets acquired during the relevant period were owned
as of the beginning of the relevant period, and all assets disposed of during
the relevant period were not owned during any portion of the relevant
period.  Adjustments for unconsolidated
partnerships, Joint Ventures and FIN 46 Entities will be calculated to reflect
EBITDA on the same basis.


 


“Effective Date”:  the
date of this Agreement or such other date as may be agreed upon by the
Administrative Agent and the Borrower.


 


“Eligible Assignee”: (a) a Lender; (b) an Affiliate of
a Lender; (c) an Approved Fund; and (d) any other Person (other than
a natural person) approved by (i) the Administrative Agent (provided,
however, that the Administrative Agent’s approval shall not be required
following and during the continuation of an Event of Default so long as such
assignee is a financial institution having a net worth of not less than
$300,000,000.00 as of the date of such assignment), and (ii) unless an
Event of Default has occurred and is continuing, the Borrower (each such
approval not to be unreasonably withheld or delayed); provided that
notwithstanding the foregoing, “Eligible Assignee” shall not include the
Borrower, any Subsidiary Guarantor or any of the Borrower’s or any Subsidiary
Guarantor’s Affiliates or Subsidiaries.


 


“Environmental Laws”:  any
and all federal, state and local laws relating to the environment, the use,
storage, transporting, manufacturing, handling, discharge, disposal or
recycling of hazardous substances, materials or pollutants or industrial
hygiene and including,


 


8





















 


without limitation, (i) the Comprehensive
Environmental Response, Compensation and Liability Act, as amended, 42 USCA
§9601 et seq.; (ii) the Resource Conservation and Recovery Act of 1976, as
amended, 42 USCA §6901 et seq.; (iii) the Toxic Substance Control Act, as
amended, 15 USCA §2601 et seq.; (iv) the Water Pollution Control Act, as
amended, 33 USCA §1251 et seq.; (v) the Clean Air Act, as amended, 42 USCA
§7401 et seq.; (vi) the Hazardous Material Transportation Act, as amended,
49 USCA §1801 et seq. and (viii) all rules, regulations, judgments,
decrees, injunctions and restrictions thereunder and any analogous state law.


 


“Environmental Risk Property”: 
any Real Property of the Borrower, a Subsidiary, a DownREIT Partnership
or a Subsidiary of a DownREIT Partnership in respect of which, at any time:


 


(i)                                     Hazardous
Substances are (A) generated or manufactured on, transported to or from,
treated at, stored at or discharged from such Real Property in violation of any
Environmental Laws; (B) discharged into subsurface waters under such Real
Property in violation of any Environmental Laws; or (C) discharged from
such Real Property on or into property or waters (including subsurface waters)
adjacent to such Real Property in violation of any Environmental Laws, and any
of the foregoing events in (A), (B) or (C) has an Adverse
Environmental Impact; or


 


(ii)                                  there
exists with respect to such Real Property (A) a claim, demand, suit,
action, proceeding, condition, report, directive, lien, violation, or non
compliance concerning any liability (including, without limitation, potential
liability for enforcement, investigatory costs, cleanup costs, government
response costs, removal costs, remedial costs, natural resources damages,
property damages, personal injuries or penalties) arising in connection with:  (x) any non compliance with or violation of
the requirements of any applicable Environmental Laws, or (y) the presence of
any Hazardous Substance on such Real Property or the release of any Hazardous
Substance into the environment from such Real Property, or (B) any actual
liability in connection with the presence of any Hazardous Substance on such
Real Property or the release of any Hazardous Substance into the environment
from such Real Property, and any of the foregoing events in (A) or (B) has
an Adverse Environmental Impact.


 


For purposes of this definition, the term “Adverse Environmental Impact”
shall mean any event described in clauses (A), (B) or (C) of
paragraph (i) above or clauses (A) or (B) of paragraph (ii) above
which could reasonably be expected to have a material adverse effect on (1) the
value of such Real Property, (2) the marketability of such Real Property,
or (3) the ability to finance or refinance such Real Property.


 


“ERISA”:  the Employee
Retirement Income Security Act of 1974, as amended from time to time, and the rules and
regulations issued thereunder, as from time to time in effect.


 


“ERISA Affiliate”:  any
Person which is a member of any group of organizations (i) described in Section 414(b) or
(c) of the Code of which the Borrower is a member, or (ii) solely for
purposes of potential liability under Section 302(c)(11) of ERISA and Section 412(c)(11)
of the Code and the Lien created under Section 302(f) of ERISA and Section 412(n)
of the Code, described in Section 414(m) or (o) of the Code of which the
Borrower is a member.


 


9





















 


“ERISA Liabilities”: 
without duplication, the aggregate of all unfunded vested benefits under
all Plans and all potential withdrawal liabilities under all Multiemployer
Plans.


 


“Event of Default”:  any
of the events specified in Section 10, provided that any requirement for
the giving of notice, the lapse of time or any other condition specified in Section 10
has occurred or been satisfied.


 


“Excluded Subsidiary”:  (i) any
DownREIT Partnership and any wholly owned Subsidiary of a DownREIT Partnership,
(ii) CA New Plan Fixed Rate Partnership, L.P., a Delaware limited
partnership, (iii) any Subsidiary all of the Real Property of which is
encumbered in favor of a Person other than Borrower or any of its Subsidiaries,
(iv) any Consolidated Joint Venture or any Subsidiary, the sole asset of
which is an interest as a partner, member or similar interest in an
unconsolidated or Consolidated Joint Venture (including a FIN 46 Entity), (v) any
Subsidiary that does not directly own any Real Property, or (vi) any
Subsidiary which is established as a special purpose entity to own Real
Property or equity interests related thereto in a bankruptcy remote manner to
secure secured Indebtedness permitted by this Agreement.


 


“Existing Credit Agreements”: 
collectively, (i) that certain First Amended and Restated Revolving
Credit Agreement, dated as of June 29, 2004, among the Borrower, Bank of
America, as administrative agent, and the lenders signatory thereto, and (ii) that
certain First Amended and Restated Term Loan Agreement, dated as of June 29,
2004, among the Borrower, Bank of America, as administrative agent, and the
lenders signatory thereto, each as subsequently amended from time to time, and
any restatements, consolidations, replacements or refinancings thereof.


 


“Federal Funds Rate”:  for
any day, the rate per annum equal to the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve System
arranged by federal funds brokers on such day, as published by the Federal
Reserve Bank of New York on the Business Day next succeeding such day; provided
that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding Business
Day as so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate (rounded upward, if
necessary, to a whole multiple of 1/100 of 1%) charged to Administrative Agent
on such day on such transactions as determined by the Administrative Agent.


 


“FIN 46”:  the
pronouncement entitled Financial Interpretation 46 “Consolidation of Variable
Interest Entities” by the Financial Accounting Standards Board on January 17,
2003, as revised from time to time.


 


“FIN 46 Entities”:  any
entity in which Borrower or any Subsidiary directly or indirectly owns an
interest that is not a Subsidiary, but that is nonetheless consolidated with
Borrower or any Subsidiary for financial reporting purposes as a result of the
application of FIN 46.


 


“Financial Statements”: 
as defined in Section 4.13.


 


10





















 


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


 


“Fund”: any Person (other than a natural person) that is (or
will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of its
business.


 


“Funds from Operations”: 
with respect to any Person for any fiscal period, the sum of (i) the
net income of such Person for such fiscal period (computed in accordance with
GAAP), excluding (a) gains (or losses) from debt restructuring and sales
of property and (b) charges for impairment of real estate, (ii) depreciation
and amortization, and (iii) other non cash items, and after adjustments
for unconsolidated partnerships, Joint Ventures and FIN 46 Entities.  Adjustments for unconsolidated partnerships,
Joint Ventures and FIN 46 Entities will be calculated to reflect funds from
operations on the same basis.


 


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


 


“Governmental Authority”: 
the government of the United States or any other nation, or of any
political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other
entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government (including
any supra-national bodies such as the European Union or the European Central
Bank).


 


“Ground Lease”:  a ground
lease in favor of the Borrower, a wholly owned Subsidiary of Borrower, a
DownREIT Partnership or a wholly owned Subsidiary of a DownREIT Partnership,
which has an unexpired term of 30 years or more (inclusive of any tenant
controlled renewal options) and which includes within its terms those rights
customarily required by mortgagees making a loan secured by the interest of the
holder of the leasehold estate demised pursuant to such ground lease.


 


“Guaranty”:  collectively,
(i) the Guaranty, substantially in the form of Exhibit D,
executed by each of the Subsidiary Guarantors identified on Schedule 4.4
and delivered to the Administrative Agent for the benefit of the Lenders on or
prior to the Effective Date, and (ii) each additional Guaranty,
substantially in the form of Exhibit D, executed by each Required
Additional Guarantor and delivered to the Administrative Agent for the benefit
of the Lenders after the Effective Date.


 


“Hazardous Substance”: 
any hazardous or toxic substance, material or waste, including, but not
limited to, (i) those substances, materials, and wastes listed in the
United States Department of Transportation Hazardous Materials Table (49 CFR
172.101) or by the


 


11





















 


Environmental Protection Agency as hazardous
substances (40 CFR Part 302) and amendments thereto and replacements
therefor and (ii) any substance, pollutant or material defined as, or
designated in, any Environmental Law as a “hazardous substance,” “toxic
substance,” “hazardous material,” “hazardous waste,” “restricted hazardous
waste,” “pollutant,” “toxic pollutant” or words of similar import.


 


“Hedging Agreement”:  any
interest rate protection agreement, foreign currency exchange agreement,
commodity price protection agreement or other interest or currency exchange
rate or commodity price hedging arrangement.


 


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


 


“Indebtedness”:  as to any
Person, at a particular time, all items which constitute, without duplication, (a) indebtedness
for borrowed money (including, without limitation, indebtedness under this
Agreement and the Notes) or the deferred purchase price of Property (other than
trade payables incurred in the ordinary course of business), (b) indebtedness
evidenced by notes, bonds, debentures or similar instruments, (c) obligations
with respect to any conditional sale or title retention agreement, (d) indebtedness
arising under acceptance facilities and the amount available to be drawn under
all letters of credit issued for the account of such Person and, without
duplication, all drafts drawn thereunder to the extent such Person shall not
have reimbursed the issuer in respect of the issuer’s payment of such drafts, (e) all
liabilities secured by any Lien on any Property owned by such Person even
though such Person has not assumed or otherwise become liable for the payment
thereof (other than carriers’, warehousemen’s, mechanics’, repairmen’s or other
like non consensual statutory Liens arising in the ordinary course of
business), (f) obligations under Capital Leases, (g) Contingent
Obligations, (h) ERISA Liabilities and (i) all indebtedness,
obligations or other liabilities under or with respect to any Hedging
Agreements that in accordance with GAAP should be classified upon such Person’s
balance sheet as liabilities, or to which reference should be made by footnotes
thereto; provided, however, that the term Indebtedness shall not include
guarantees or carve-outs with respect to claims of the types referenced in (i)-(iv) of
the definition of Non-Recourse Exclusions until a claim is made with respect
thereto, and then shall be included only to the extent of the amount of such
claim.


 


“Indemnified Person”:  as defined
in Section 11.11.


 


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


 


“Interest Payment Date”:  (a) as
to any Loan other than a Prime Rate Loan, the last day of each Interest Period
applicable to such Loan and the Maturity Date; provided, however,
that if any Interest Period for a LIBOR Loan exceeds one month, the respective
dates that fall every one month after the beginning of such Interest Period
shall also be Interest Payment Dates; and (b) as to any Prime Rate Loan,
the last Business Day of each calendar month and the Maturity Date.


 


12





















 


“Interest Period”:  with
respect to any LIBOR Loans requested by the Borrower, the period commencing on,
as the case may be, the Effective Date or Conversion Date with respect to such
LIBOR Loans and ending one, two or three months thereafter, as selected by the
Borrower in its irrevocable request to the Administrative Agent with respect to
the Loans to be made on the Effective Date or its irrevocable notice of
conversion as provided in Section 2.6; provided, however, that all of the
foregoing provisions relating to Interest Periods are subject to the following:


 


(a)                                  any
Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless, in the case of a
LIBOR Loan, such Business Day falls in another calendar month, in which case
such Interest Period shall end on the immediately preceding Business Day;


 


(b)                                 if,
with respect to the borrowing of any Loan as a LIBOR Loan or the conversion of
one Advance to another pursuant to Section 2.6, the Borrower shall fail to
give due notice with respect to the Loans to be made on the Effective Date or
with respect to a conversion as provided in Section 2.6, as the case may
be, the Borrower shall be deemed to have elected that such Loan or Advance
shall be made as a Prime Rate Loan;


 


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


 


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


 


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


 


“Investments”:  as defined
in Section 8.3.


 


“Joint Venture”:  an
Investment by Borrower or any of its Subsidiaries with third persons in joint
ventures, general partnerships, limited partnerships, limited liability
companies or any other business association. 
Joint Ventures include non-wholly owned Subsidiaries of Borrower and FIN
46 Entities.


 


“Land Assets”:  any land
of the Borrower or its Subsidiaries, or in which the Borrower or any of its
Subsidiaries has an interest (either directly or indirectly, through a Joint
Venture or otherwise) with respect to which the commencement of grading,
construction of improvements or infrastructure has not yet commenced, and all
unimproved land according to GAAP.


 


“Laws”:  collectively, all
international, foreign, Federal, state and local statutes, treaties, rules,
guidelines, regulations, ordinances, codes and administrative or judicial
precedents or authorities, including the interpretation or administration
thereof by any Governmental Authority charged with the enforcement, interpretation
or administration thereof, and all applicable administrative orders, directed
duties, requests, licenses, authorizations and permits of, and


 


13





















 


agreements with, any Governmental Authority,
in each case whether or not having the force of law.


 


“Lead Arranger”: 
collectively, Citigroup and MLPFS, in their capacities as joint lead
arrangers.


 


“LIBOR”:  for any Interest
Period with respect to any LIBOR Loan:


 


(a)                                  the
rate per annum equal to the rate determined by the Administrative Agent to be
the offered rate that appears on the page of the Telerate screen (or any
successor thereto) that displays an average British Bankers Association
Interest Settlement Rate for deposits in Dollars (for delivery on the first day
of such Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period, or


 


(b)                                 if
the rate referenced in the preceding clause (a) does not appear on such page or
service or such page or service shall not be available, the rate per annum
equal to the rate determined by the Administrative Agent to be the offered rate
on such other page or other service that displays an average British
Bankers Association Interest Settlement Rate for deposits in Dollars (for
delivery on the first day of such Interest Period) with a term equivalent to
such Interest Period, determined as of approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period, or


 


(c)                                  if
the rates referenced in the preceding clauses (a) and (b) are not
available, the rate per annum determined by the Administrative Agent as the
rate of interest at which deposits in Dollars for delivery on the first day of
such Interest Period in same day funds in the approximate amount of the LIBOR
Loan being made, continued, or converted by the Administrative Agent and with a
term equivalent to such Interest Period would be offered by the Administrative
Agent’s London Branch to major banks in the London interbank eurodollar market
at their request at approximately 4:00 p.m. (London time) two Business
Days prior to the first day of such Interest Period.  In the event that the Board of Governors of the
Federal Reserve System shall impose a Reserve Percentage with respect to LIBOR
deposits of the Administrative Agent, then for any period during which such
Reserve Percentage shall apply, LIBOR shall be equal to the amount determined
above divided by an amount equal to 1 minus the Reserve Percentage.


 


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


 


“LIBOR Loans”:  loans
bearing interest calculated by reference to a LIBOR.


 


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


 


14





















 


“Loan” and “Loans”: 
an individual term loan or the aggregate term loans, as the case may be,
to be made by the Lenders hereunder.  All
Loans shall be made in Dollars.


 


“Loan Documents”: 
collectively, this Agreement, the Guaranty (and each Guaranty
subsequently delivered pursuant to Section 7.11), the Notes and all other
documents, instruments or agreements now or hereafter executed or delivered by
or on behalf of the Borrower, any Subsidiary Guarantor or any of their
respective Subsidiaries evidencing or otherwise relating to the Loans to which
the Administrative Agent and/or the Lenders are a party or an intended
beneficiary.


 


“Margin Stock”:  any “margin
stock”, as said term is defined in Regulation U of the Board of Governors of
the Federal Reserve System, as the same may be amended or supplemented from
time to time.


 


“Material Adverse Effect”: 
a material adverse effect on (i) the financial condition,
operations, business, or Properties of (A) the Borrower or (B) the
Borrower and its Subsidiaries taken as a whole, (ii) the ability of the
Borrower to perform any of its material obligations under the Loan Documents or
the ability of the Subsidiary Guarantors, taken as a whole, to perform their
material obligations under the Guaranty or (iii) the ability of the
Administrative Agent and the Lenders to enforce the Loan Documents.


 


“Maturity Date”:  the
earlier of (i) October 5, 2005, or (ii) the date on which the
Notes shall otherwise become due and payable, whether by acceleration or
otherwise.


 


“MLPFS”:  Merrill Lynch,
Pierce, Fenner & Smith Incorporated.


 


“Moody’s”:  Moody’s
Investors Services, Inc. and any successor thereto.


 


“Multiemployer Plan”:  a
plan defined as such Section 3(37) of ERISA to which contributions have
been made by the Borrower or any ERISA Affiliate and which is covered by Title
IV of ERISA.


 


“Net Asset Sale Proceeds”: 
with respect to any Asset Sale, Cash payments (including any Cash
received by way of deferred payment pursuant to, or by monetization of, a note
receivable or otherwise, but only as and when so received) received from such
Asset Sale, net of any costs and expenses incurred in connection with such
Asset Sale, including (i) income taxes reasonably estimated to be actually
payable within two years of the date of such Asset Sale as a result of any gain
recognized in connection with such Asset Sale, (ii) payment of the
outstanding principal amount of, premium or penalty, if any, and interest on
any Indebtedness that is secured by a Lien on the Property in question and that
is required to be repaid under the terms thereof as a result of such Asset Sale,
and (iii) underwriting discounts and commissions, brokerage costs, legal
fees, transfer taxes, title insurance premiums and other charges, survey
expenses, prorations and all other customary closing costs.


 


“Net Operating Income”: 
for any period and with respect to all assets which are Unencumbered
Assets or Operating Properties during such period, the sum of (a) net
income for such period, determined in accordance with GAAP, attributable to
Unencumbered Assets or Operating Properties, as applicable, plus (b) depreciation
and amortization, interest expense and


 


15





















 


any extraordinary or non recurring losses or
charges for impairment of real estate deducted in calculating such net income,
minus (c) extraordinary or non recurring gains and payments (including
rent insurance proceeds and condemnation awards) included in such net income,
minus (d) any portion of such net income attributable to rents paid by any
tenant which is an Affiliate of the Borrower, minus (e) an amount (but not
less than zero) equal to the excess (if any) of (i) 3% of operating income
for such period, over (ii) management fees payable in respect of such
Unencumbered Assets or Operating Properties, as applicable, during such
period.  For purposes of any calculation
of Net Operating Income, real estate taxes, ground rent and insurance shall be
included only at their stabilized, recurring levels.


 


“Net Rentable Area”:  with
respect to any Real Property, the floor area of any buildings, structures or
improvements thereof (expressed in square feet) available for leasing to
tenants, as determined in accordance with the leases or site plans or leasing
plans for such Real Property, or if such leases or site plans or leasing plans
do not set forth the floor area demised thereunder (or if such Real Property is
not subject to a lease), then as determined by the Borrower in accordance with
an industry accepted protocol approved by the Administrative Agent.


 


“Net Securities Proceeds”: 
with respect to the issuance of any debt or equity Securities of the
Borrower or any Subsidiary Guarantor (other than drawings under the Existing
Credit Agreements), Cash payments (including any Cash received by way of
deferred payment pursuant to, or by monetization of, a note receivable or
otherwise, but only as and when so received) received from such issuance, net
of any costs and expenses incurred in connection with such issuance, including (i) income
taxes reasonably estimated to be actually payable within two years of the date
of such issuance as a result of any gain recognized in connection with such
issuance, and (ii) underwriting discounts and commissions, legal fees and
all other customary closing costs.


 


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


 


“Non Recourse Exclusions”: 
with respect to any Non-Recourse Indebtedness of any Person, any usual
and customary exclusions from the non recourse limitations governing such
Indebtedness, including, without limitation, exclusions for claims that (i) are
based on fraud, intentional misrepresentation, misapplication of funds, gross
negligence or willful misconduct, (ii) result from intentional
mismanagement of or waste at the Real Property securing such Non-Recourse
Indebtedness, (iii) arise from the presence of Hazardous Substances on the
Real Property securing such Non-Recourse Indebtedness; or (iv) are the
result of any unpaid real estate taxes and assessments.


 


16





















 


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


 


“Note” and “Notes”: 
as defined in Section 2.2(a).


 


“Notes Receivable”: 
mortgage and notes receivable and reimbursement agreements (to the
extent obligations are payable under such reimbursement agreements), including
interest payments thereunder, of Borrower or any Subsidiary in a Person (other
than Borrower or its Subsidiaries).


 


“Operating Property”:  any
Real Property which at any time (i) is an income producing property in
operating condition and in respect of which no material part thereof has been (a) damaged
by fire or other casualty (unless such damage has been repaired) or (b) condemned
(unless such condemnation has been restored), (ii) is a retail shopping
center (including single tenant retail properties), and (iii) for which a
certificate of occupancy, whether temporary or permanent, or the functional
equivalent thereof, has been issued for the operating portions of the
improvements comprising the same (if required by law to occupy the same) and
are in full force and effect, and “Operating Properties” means all such
Operating Properties, collectively.  An
Operating Property shall not include any Redevelopment Asset or any New
Construction Asset.


 


“Operating Property Value”: 
as of any date the quotient of (i) an amount equal to the Adjusted
Net Operating Income for all Operating Properties in the aggregate for the four
fiscal quarters of the Borrower most recently ending as of such date, divided
by (ii) 9.0%. For purposes of any determination of Operating Property
Value, the following limitations and methodology shall apply:  (A) the Adjusted Net Operating Income of
any Operating Property owned by a DownREIT Partnership or a Subsidiary of a
DownREIT Partnership shall be based on the Borrower’s Interest in the Adjusted
Net Operating Income for each such Operating Property for the four fiscal
quarters having most recently ended as of such date; (B) in the event more
than 15% of the gross base rents payable under all leases for Properties of the
Borrower, its Subsidiaries, DownREIT Partnerships and Subsidiaries of DownREIT
Partnerships (including the Borrower’s Interest in any Properties) shall be
payable by one tenant and its Subsidiaries, then Operating Property Value shall
be reduced by the percentage amount of such excess multiplied by the Operating
Property Value attributable to the Properties leased or controlled by such
tenant and its Subsidiaries; and (C) in the event that the Borrower or a
Subsidiary of the Borrower shall not have owned an Operating Property for the
entire previous four fiscal quarters, then for the purposes of determining the
Operating Property Value with respect to such Operating Property, the Adjusted
Net Operating Income for such Operating Property shall be annualized in a
manner reasonably satisfactory to the Administrative Agent, provided, however,
that to the extent that a New Construction Asset or Redevelopment Asset becomes
an Operating Property during the relevant period, the Adjusted Net Operating
Income of such Operating


 


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Property during such period and the following
periods shall be annualized in a manner reasonably satisfactory to the
Administrative Agent until such time as such Operating Property has performed
as an Operating Property for four (4) full fiscal quarters.


 


“Organization Documents” (a) with respect to any
corporation, the certificate or articles of incorporation and the bylaws (or
equivalent or comparable constitutive documents with respect to any non-U.S.
jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement;
and (c) with respect to any partnership, joint venture, trust or other
form of business entity, the partnership, joint venture or other applicable
agreement of formation or organization and any agreement, instrument, filing or
notice with respect thereto filed in connection with its formation or
organization with the applicable Governmental Authority in the jurisdiction of
its formation or organization and, if applicable, any certificate or articles
of formation or organization of such entity.


 


“Participant” has the meaning specified in Section 11.7(d).


 


“PBGC”:  the Pension
Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of
ERISA, or any Governmental Authority succeeding to the functions thereof.


 


“Permitted Liens”:  Liens
permitted to exist under Section 8.1.


 


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


 


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


 


“Pricing Level”:  one of
the following four pricing levels, as applicable, provided that if the ratings
by S&P and Moody’s in any such Pricing Level are split by one equivalent
rating level, the operative rating would be deemed to be the higher of the two
ratings, and if the ratings by S&P and Moody’s in any such Pricing Level
are split by more than one equivalent rating level, the operative rating would
be deemed to be one rating level higher than the lower of the two ratings, and
provided, further, that during any period that the Borrower has no Senior Debt
Rating, Pricing Level IV would be the applicable Pricing Level:


 


“Pricing Level I”:  the
Pricing Level which would be applicable for so long as the Senior Debt Rating
is greater than or equal to BBB+ by S&P or Baa1 by Moody’s;


 


“Pricing Level II”:  the
Pricing Level which would be applicable for so long as the Senior Debt Rating
is equal to BBB by S&P or Baa2 by Moody’s and Pricing Level I is not
applicable;


 


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


 


18





















 


“Pricing Level IV”:  the
Pricing Level which would be applicable for so long as the Senior Debt Rating
is less than BBB- by S&P or Baa3 by Moody’s and Pricing Levels I, II
and III are not applicable.


 


“Prime Rate”:  for any
day, a fluctuating rate per annum equal to the higher of (a) the Federal
Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such
day as publicly announced from time to time by Citibank, N.A. (“Citibank”) in
New York, New York as its “prime rate.”  The “prime rate” is a rate set by Citibank
based upon various factors including Citibank’s costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate.  Any change in such rate announced
by Citibank shall take effect at the opening of business on the day specified
in the public announcement of such change.


 


“Prime Rate Loans”:  those
Loans bearing interest calculated by reference to the Prime Rate.


 


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


 


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


 


“Redevelopment Asset”: 
any Property of the Borrower or its Subsidiaries, or in which the
Borrower or any of its Subsidiaries has an interest (either directly or
indirectly, through a Joint Venture or otherwise) (i) which is not a New
Construction Asset, (ii) which is undergoing an expansion which will
increase the Net Rentable Area of such Property by 20,000 square feet or more
(provided that with respect to any Property which is under expansion, if the
balance thereof is a fully integrated, rentable property, then only the portion
of such Property that is under expansion shall be a Redevelopment Asset), and (iii) for
which a certificate of occupancy, whether temporary or permanent, or the
functional equivalent thereof, has not been issued with respect to such
construction or expansion (if required by law to occupy the same).  Notwithstanding the foregoing, any such
expansion which shall have been a Redevelopment Asset under the criteria of
this definition shall no longer be a Redevelopment Asset upon such time as (A) the
same is an income producing Property in operating condition, and (B) at
least 60% of the Net Rentable Area (determined on an “as completed” basis) of
such expansion is initially leased to tenants who have taken possession
thereof.  A Property shall not be
considered a Redevelopment Asset solely because such Property is being restored
to its prior condition following a casualty or condemnation.


 


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


 


“Related Parties”:  with
respect to any Person, such Person’s Affiliates and the partners, directors,
officers, employees, agents and advisors of such Person and of such Person’s
Affiliates.


 


“Remaining Interest Period”: 
(i) in the event that the Borrower shall fail for any reason to
borrow a Loan in respect of which it shall have requested a LIBOR Loan or to
convert an Advance to a LIBOR Loan after it shall have notified the
Administrative Agent of its intent to do


 


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so with respect to the Loans to be made on
the Effective Date or with respect to a conversion pursuant to Section 2.6,
a period equal to the Interest Period that the Borrower elected in respect of
such LIBOR Loan; or (ii) in the event that a LIBOR Loan shall terminate
for any reason prior to the last day of the Interest Period applicable thereto,
a period equal to the remaining portion of such Interest Period if such
Interest Period had not been so terminated; or (iii) in the event that the
Borrower shall prepay or repay all or any part of the principal amount of a
LIBOR Loan (including, without limitation, any mandatory prepayment or a
prepayment resulting from acceleration or illegality) prior to the last day of
the Interest Period applicable thereto, a period equal to the period from and
including the date of such prepayment or repayment to but excluding the last
day of such Interest Period.


 


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


 


“Required Additional Guarantors”:  any Subsidiary required to execute and
deliver a Guaranty pursuant to Section 7.11(a).


 


“Required Lenders”:  the
Lenders whose aggregate Commitment Percentage equals or exceeds fifty-one
percent (51%), provided that the Commitment of any Defaulting Lender
shall be excluded from the calculations of Commitment Amount and Total Commitment
Amount for purposes of making a determination of Required Lenders.


 


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


 


“Restricted Payment”:  as
to any Person, any dividend or other distribution by such Person (whether in
cash, securities or other property) with respect to any shares of any class of
equity securities or beneficial interests of such Person, or any payment
(whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such shares or beneficial
interests or any option, warrant or other right to acquire any such shares or
beneficial interests.


 


“Securities”:  means any
Stock, shares, partnership interests, limited liability company interests,
voting trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds, debentures,
notes or other evidences of


 


20





















 


indebtedness that constitute securities,
secured or unsecured, convertible, subordinated or otherwise, or in general any
instruments commonly known as “securities” or any certificates of interest,
shares or participations in temporary or interim certificates for the purchase
or acquisition of, or any right to subscribe to, purchase or acquire, any of
the foregoing.


 


“Senior Debt Rating”:  the
senior unsecured non-credit-enhanced debt rating of the Borrower, as determined
by S&P and/or Moody’s from time to time.


 


“Special Counsel”:  Sidley
Austin Brown & Wood LLP, special counsel to CNAI.


 


“S&P”:  Standard &
Poor’s Ratings Group and any successor thereto.


 


“Stock”:  any and all
shares, rights, interests, participations, warrants, depositary receipts or
other equivalents (however designated) of corporate stock, including, without
limitation, so called “phantom stock,” preferred stock and common stock.


 


“Subsidiary”:  as to any
Person, any corporation, association, partnership, limited liability company,
joint venture or other business entity (A) which is required pursuant to
GAAP to be consolidated with such Person for financial reporting purposes, and (B) of
which such Person, directly or indirectly, either (i) in respect of a
corporation, owns or controls more than 50% of the outstanding Stock having
ordinary voting power to elect a majority of the board of directors or similar
managing body, irrespective of whether a class or classes shall or might have
voting power by reason of the happening of any contingency, or (ii) in
respect of an association, partnership, limited liability company, joint
venture or other business entity (other than a corporation which is provided
for in (i) above), is entitled to share, either directly or indirectly
through an entity described in clause (i) above, in more than 50% of the
profits and losses, however determined (without taking into account returns of
capital to such Person as an equity investor or payment of fees to such Person
for services rendered to such entity).


 


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


 


“Supermajority Lenders”: the Lender or Lenders whose aggregate
Commitment Percentage exceeds sixty-six and two-thirds percent (66.67%),
provided that the Commitment of any Defaulting Lender shall be excluded from
the calculations of Commitment Amount and Total Commitment Amount for purposes
of making a determination of Supermajority Lenders.


 


“Syndication Agent”: 
MLPFS, in its capacity as syndication agent.


 


“Tangible Net Worth”:  as
of any date of determination thereof with respect to the Borrower and its
Subsidiaries, determined on a Consolidated basis in accordance with GAAP, the
remainder of (i) the amounts which would, in conformity with GAAP, be
included under “shareholder’s equity” (or any like caption) on a Consolidated
balance sheet of the Borrower and its Subsidiaries as at such date, minus (ii) the
net book value of all assets of the Borrower and its Subsidiaries on a
Consolidated basis (to the extent reflected in the Consolidated balance sheet
of the Borrower at such date) which would be treated as intangibles under GAAP,
including, without limitation, goodwill (whether representing the excess cost
over book value of assets


 


21





















 


acquired or otherwise), patents, trademarks, trade names, franchises,
copyrights, licenses, service marks, rights with respect to the foregoing and
deferred charges (including, without limitation, unamortized debt discount and
expense, organization costs and research and development costs).


 


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


 


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


 


“Unencumbered Asset”:  any
Operating Property which Borrower desires to have treated as an Unencumbered
Asset and which at any time (i) is wholly owned in fee simple by the
Borrower or a DownREIT Partnership or a direct or indirect wholly owned
Subsidiary of the Borrower or a DownREIT Partnership (or is the subject of a
Ground Lease), (ii) is free and clear of all Liens, including any Liens on
any direct or indirect interest of Borrower or any Subsidiary therein (other
than Liens permitted under clauses (i), (ii), (iii), (iv), (v) (vi), (viii) and
(ix) of Section 8.1), (iii) does not have applicable to it (or
to any such Ground Lease) any restriction on the pledge, transfer, mortgage or
assignment of such Operating Property or Ground Lease (including any
restriction imposed by the organizational documents of any such Subsidiary or
DownREIT Partnership, but excluding (a) any requirement in a Ground Lease
that such Ground Lease be assumed upon the assignment thereof and (b) any
restrictions on transfers applicable to an Operating Property or Ground Lease
owned by a DownREIT Partnership or a wholly owned Subsidiary of a DownREIT
Partnership, so long as any such transfer restrictions shall not prohibit such
DownREIT Partnership or such wholly owned Subsidiary of a DownREIT Partnership
from transferring such Operating Property or Ground Lease either (x) in a
manner that does not trigger the built in gains of the applicable unit holders
in such DownREIT Partnership, including, without limitation, exchanges pursuant
to Section 1031 of the Code, or (y) subject only to the payment of any tax
liability and related expenses of the applicable unit holders in such DownREIT
Partnership in connection with such transfers, including a reimbursement for
taxes imposed upon the applicable unit holders as a result of such payment), (iv) if
owned by any such Subsidiary or DownREIT Partnership, the Stock, partnership
interests or membership interests, as the case may be, of such Subsidiary or
DownREIT Partnership that are owned by the Borrower, any Subsidiary or any
DownREIT Partnership are not subject to any pledge or security interest in
favor of any Person other than the Borrower or a Subsidiary Guarantor, (v) is
not an Environmental Risk Property; (vi) does not have, to the best of the
Borrower’s knowledge, any title, survey, or other defect which could reasonably
be expected to materially and adversely affect the value, use, financeability
or marketability thereof, and (vii) is located within the contiguous 48
states of the continental United States; and “Unencumbered Assets” means all
such Unencumbered Assets, collectively. 
The Unencumbered Assets which are retail shopping centers shall on an
aggregate basis have an occupancy level of tenants in possession and operating
and which are paying base, minimum or similar regularly scheduled fixed
payments of rent (but not pass-throughs of common area maintenance charges,
operating expenses, taxes, insurance and similar charges) in accordance with
the terms of their leases of at least eighty percent (80%) of the Net Rentable
Area within such Unencumbered Assets based on bona fide arms-length tenant
leases requiring current rental payments.


 


22





















 


“Unencumbered Assets Coverage Ratio”:  on any date of determination the ratio of (i) the
sum of all Adjusted Net Operating Income for all Unencumbered Assets of the
Borrower and its Subsidiaries determined on a Consolidated basis in accordance
with GAAP, plus (without duplication) the Borrower’s Interest in all Adjusted
Net Operating Income for all Unencumbered Assets owned by any DownREIT
Partnerships and by wholly owned Subsidiaries of any DownREIT Partnerships, in
each case, for the period of four (4) fiscal quarters just ended prior to
the date of determination, to (ii) the portion of the Consolidated
Interest Expense (which excludes interest on unsecured Indebtedness of Joint
Ventures (including FIN 46 Entities) that are not Subsidiaries) consisting of
interest on all unsecured Indebtedness of the Borrower and its Subsidiaries for
such period.


 


“Unencumbered Asset Value”: 
as of any date the quotient of (i) an amount equal to the Adjusted
Net Operating Income for all Unencumbered Assets in the aggregate for the four
fiscal quarters of the Borrower most recently ending as of such date, divided
by (ii) 9.0%. For purposes of any determination of Unencumbered Asset
Value, the following limitations and methodology shall apply:  (A) the Adjusted Net Operating Income of
any Unencumbered Asset owned by a DownREIT Partnership or a wholly owned
Subsidiary of a DownREIT Partnership shall be based on the Borrower’s Interest
in the Adjusted Net Operating Income for each such Unencumbered Asset for the
four fiscal quarters having most recently ended as of such date; (B) in
the event more than 15% of the gross base rents payable under all leases for
Properties of the Borrower, its Subsidiaries, DownREIT Partnerships and wholly
owned Subsidiaries of DownREIT Partnerships (including the Borrower’s Interest
in any Properties) shall be payable by one tenant and its Subsidiaries, then
Unencumbered Asset Value shall be reduced by the percentage amount of such
excess multiplied by the Unencumbered Asset Value attributable to the
Properties leased or controlled by such tenant and its Subsidiaries; and (C) in
the event that the Borrower or a Subsidiary of the Borrower shall not have
owned an Unencumbered Asset for the entire previous four fiscal quarters, then
for the purposes of determining the Unencumbered Asset Value with respect to
such Unencumbered Asset, the Adjusted Net Operating Income for such
Unencumbered Asset shall be annualized in a manner reasonably satisfactory to
the Administrative Agent, provided, however, that to the extent that a New
Construction Asset or Redevelopment Asset becomes an Operating Property during
the relevant period, the Adjusted Net Operating Income of such Operating
Property during such period and the following periods shall be annualized until
such time as such Operating Property has performed as an Operating Property for
four (4) full fiscal quarters.


 


1.2                                 Other Interpretive
Provisions.  With reference to this
Agreement and each other Loan Document, unless otherwise specified herein or in
such other Loan Document:


 


(a)                                  The
definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined.  Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms.  The words “include,”
“includes” and “including” shall be deemed to be followed by the
phrase “without limitation.”  The word “will”
shall be construed to have the same meaning and effect as the word “shall.”  Unless the context requires otherwise, (i) any
definition of or reference to any agreement, instrument or other document
(including any Organization Document) shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or


 


23





















 


modifications set forth herein or in any other Loan Document), (ii) any
reference herein to any Person shall be construed to include such Person’s
successors and assigns, (iii) the words “herein,” “hereof” and
“hereunder,” and words of similar import when used in any Loan Document,
shall be construed to refer to such Loan Document in its entirety and not to
any particular provision thereof, (iv) all references in a Loan Document
to Articles, Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, the Loan Document in
which such references appear, (v) any reference to any law shall include
all statutory and regulatory provisions consolidating, amending replacing or
interpreting such law and any reference to any law or regulation shall, unless
otherwise specified, refer to such law or regulation as amended, modified or
supplemented from time to time, and (vi) the words “asset” and “property”
shall be construed to have the same meaning and effect and to refer to any and
all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.


 


(b)                                 In
the computation of periods of time from a specified date to a later specified
date, the word “from” means “from and including;” the words “to”
and “until” each mean “to but excluding;” and the word “through”
means “to and including.”


 


(c)                                  Section headings
herein and in the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any
other Loan Document.


 


1.3                                 Accounting
Terms.


 


(a)                                  Generally.  All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to
time, applied in a manner consistent with that used in preparing the audited
Financial Statements pursuant to Section 4.13, except as otherwise
specifically prescribed herein.


 


(b)                                 Changes
in GAAP.  If at any time any change
in GAAP would affect the computation of any financial ratio or requirement set
forth in any Loan Document, and either the Borrower or the Required Lenders
shall so request, the Administrative Agent, the Lenders and the Borrower shall
negotiate in good faith to amend such ratio or requirement to preserve the original
intent thereof in light of such change in GAAP (subject to the approval of the
Required Lenders); provided that, until so amended, (i) such ratio or
requirement shall continue to be computed in accordance with GAAP prior to such
change therein and (ii) the Borrower shall provide to the Administrative
Agent and the Lenders financial statements and other documents required under
this Agreement or as reasonably requested hereunder setting forth a
reconciliation between calculations of such ratio or requirement made before
and after giving effect to such change in GAAP.


 


1.4                                 Rounding.  Any financial ratios required to be
maintained by the Borrower pursuant to this Agreement shall be calculated by
dividing the appropriate component by the other component, carrying the result
to one place more than the number of places by which such


 


24





















 


ratio is expressed herein and rounding the result up or down to the
nearest number (with a rounding-up if there is no nearest number).


 


1.5                                 Times
of Day.  Unless otherwise specified,
all references herein to times of day shall be references to Eastern time
(daylight or standard, as applicable).


 


2.                                       AMOUNT
AND TERMS OF LOANS.


 


2.1                                 Loans.  Subject to the terms and conditions set forth
in this Agreement, each of the Lenders severally agrees to lend to the Borrower
on the Effective Date the aggregate principal amount of such Lender’s
Commitment Amount, for the purposes set forth in Section 2.13.  On the Effective Date, the Total Commitment
Amount as of the Effective Date shall be disbursed to Borrower in a single
advance.  The Loans shall be made pro
rata in accordance with each Lender’s Commitment Percentage.  The acceptance by Borrower of the Loans
hereunder shall constitute a representation and warranty by the Borrower that
all of the conditions set forth in Section 5 have been satisfied or waived.  No Lender shall have any obligation to make a
Loan to the Borrower of more than the principal face amount of its Note.  No portion of any Loan that is repaid or
prepaid may be reborrowed hereunder.


 


2.2                                 Notes.


 


(a)                                  Notes
as Evidence of Indebtedness.  The
Loan of each Lender shall be evidenced by a promissory note of the Borrower,
substantially in the form of Exhibit E, with appropriate insertions
therein as to date and principal amount (each, as endorsed or modified from
time to time, a “Note” and, collectively with the Notes of all other
Lenders, the “Notes”), payable to the order of such Lender for the
account of its Applicable Lending Office in the principal face amount equal to
the original amount of the Commitment of such Lender and representing the
obligation of the Borrower to pay the lesser of (a) the original amount of
the Commitment of such Lender and (b) the aggregate unpaid principal
balance of all Loans of such Lender, plus interest and other amounts due and
owing to the Lenders under the Loan Documents.


 


(b)                                 Notes
Generally.  Each Note shall bear
interest from the date thereof on the unpaid principal balance thereof at the
applicable interest rate or rates per annum determined as provided in Section 2.7
and shall be stated to mature on the Maturity Date.  The following information shall be recorded
by each Lender on its books:  (i) the
date and amount of the Loan of such Lender; (ii) its character as a Prime
Rate Loan, a LIBOR Loan or a combination thereof; (iii) the interest rate
and Interest Period applicable to LIBOR Loans; and (iv) each payment and
prepayment of the principal thereof; provided, that the failure of such Lender
to make any such recordation or endorsement shall not affect the obligations of
the Borrower to make payment when due of any amount owing under the Loan
Documents.


 


2.3                                 Procedure for Loan
Borrowings.


 


(a)                                  Borrowing
Request.  The Borrower shall notify
the Administrative Agent on or before the Effective Date, as to the following
matters with respect to the Loans requested to be made on the Effective Date: (i) the
aggregate amount of the requested borrowing of Loans; (ii) whether the
requested Loans are to be Prime Rate Loans or LIBOR Loans; (iii) in the
case of


 


25





















 


LIBOR Loans,
the initial Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term “Interest Period”; and (iv) the
location and number of the Borrower’s account to which funds are to be
disbursed.  Such telephonic borrowing
request shall be irrevocable and shall be confirmed promptly by hand delivery
or facsimile to the Administrative Agent of a written borrowing request signed
by the Borrower.


 


(b)                                 Funding
of Loans.  Each Lender will make its
Loan, in an amount equal to its Commitment Amount, available to the
Administrative Agent for the account of the Borrower at the office of the
Administrative Agent set forth in Section 11.2 not later than 12:00 noon
on the Borrowing Date in funds immediately available to the Administrative
Agent at such office.  The amounts so
made available to the Administrative Agent on the Borrowing Date will then,
subject to the satisfaction of the terms and conditions of this Agreement, as
determined by the Administrative Agent, be made available on such date to the
Borrower by the Administrative Agent at the office of the Administrative Agent specified
in Section 11.2 by crediting the account of the Borrower on the books of
such office with the aggregate of said amounts received by the Administrative
Agent.


 


(c)                                  Administrative
Agent’s Assumption.  Unless the
Administrative Agent shall have received prior notice from a Lender (by
telephone or otherwise, such notice to be promptly confirmed by facsimile or
other writing) that such Lender will not make available to the Administrative
Agent such Lender’s pro rata share of the Loans, the Administrative Agent may
assume that such Lender has made such share available to the Administrative
Agent on the Borrowing Date in accordance with this Section, provided that such
Lender received notice of the proposed borrowing from the Administrative Agent,
and the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower on the Borrowing Date a corresponding amount.  If and to the extent such Lender shall not
have so made such pro rata share available to the Administrative Agent, such
Lender and the Borrower severally agree to pay to the Administrative Agent
forthwith on demand such corresponding amount (to the extent not previously
paid by the other), together with interest thereon for each day from the date
such amount is made available to the Borrower until the date such amount is
paid to the Administrative Agent, at a rate per annum equal to, in the case of
the Borrower, the applicable interest rate set forth in Section 2.7 for
Prime Rate Loans or LIBOR Loans, as initially requested by Borrower, and, in
the case of a payment to be made by such Lender, the greater of the Federal
Funds Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation.  Such payment by the Borrower, however, shall
be without prejudice to its rights against such Lender.  If such Lender shall pay to the
Administrative Agent such corresponding amount, such amount so paid shall
constitute such Lender’s Loan as part of the Loans for purposes of this
Agreement, which Loan shall be deemed to have been made by such Lender on the
Borrowing Date applicable to such Loans, but without prejudice to the Borrower’s
rights against such Lender.


 


2.4                                 Repayment of Loans;
Evidence of Debt.


 


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


 


26





















 


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


 


(c)                                  Administrative
Agent’s Accounts.  The Administrative
Agent shall maintain accounts in which it shall record (i) the amount of
each Loan made hereunder, the type of Advance thereof and the Interest Period
applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender hereunder
and (iii) the amount of any other sum received by the Administrative Agent
hereunder for the account of the Lenders and each Lender’s share thereof.


 


(d)                                 Entries
Made in Accounts.  The entries made
in the accounts maintained pursuant to paragraphs (b) and (c) of this
Section shall, to the extent not inconsistent with any entries made in any
Note and absent manifest error, be prima facie evidence of the existence and
amounts of the obligations recorded therein, provided that the failure of any
Lender or the Administrative Agent, to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement or otherwise to make
any payments in accordance with the terms of the Loan Documents.


 


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


 


2.5                                 Prepayments of the
Loans.


 


(a)                                  Voluntary
Prepayments. The Borrower may, at its option, prepay the Prime Rate Loans
and LIBOR Loans, in whole or in part, without premium or penalty (other than
any indemnification amounts, as provided for in Section 2.12) at any time
and from time to time by notifying the Administrative Agent in writing at least
one Business Day prior to the proposed prepayment date in the case of Loans
consisting of Prime Rate Loans and at least three Business Days prior to the
proposed prepayment date in the case of Loans consisting of LIBOR Loans,
specifying the Loans to be prepaid consisting of Prime Rate Loans, LIBOR Loans
or a combination thereof, the amount to be prepaid and the date of
prepayment.  Such notice shall be
irrevocable and the amount specified in such notice shall be due and payable on
the date specified, together with accrued interest to the date of such payment
on the amount prepaid.  Upon receipt of
such notice, the Administrative Agent shall promptly notify each Lender of the
contents thereof.  Partial prepayments of
Prime Rate Loans and/or LIBOR Loans shall be in an aggregate minimum principal
amount of $5,000,000 or such amount plus a whole multiple of $1,000,000 in
excess thereof, or, if less, the outstanding principal balance thereof.  After giving effect to any partial prepayment
with respect to LIBOR Loans which were converted on the same date and which had
the same Interest Period, the outstanding principal amount of such LIBOR Loans
shall be at least $1,000,000 or such amount plus a whole multiple of $100,000
in excess thereof.


 


27










 













 


(b)                                 Mandatory
Prepayments.  If not sooner paid, the
principal Indebtedness evidenced by the Notes shall be payable as follows:


 


(i)                                     no
later than the third Business Day following the date of receipt by the Borrower
or any Subsidiary Guarantor of any Net Asset Sale Proceeds in respect of any
Asset Sale, the Borrower shall prepay the Loans in an aggregate amount equal to
such Net Asset Sale Proceeds and the Commitments shall be reduced by the amount
of such Net Asset Sale Proceeds (applied to the Commitment of each Lender on
the basis of such Lender’s Commitment Percentage).


 


(ii)                                  no
later than the third Business Day following the date of receipt by the Borrower
or any Subsidiary Guarantor of any Net Securities Proceeds, the Borrower shall
prepay the Loans in an aggregate amount equal to such Net Securities Proceeds
and the Commitments shall be reduced by the amount of such Net Securities
Proceeds (applied to the Commitment of each Lender on the basis of such Lender’s
Commitment Percentage).


 


(c)                                  In
General.  If any prepayment is made
in respect of any Advance, in whole or in part, prior to the last day of the
applicable Interest Period, the Borrower agrees to indemnify the Lenders in
accordance with Section 2.12.


 


(d)                                 Partial
Prepayments.  Each partial prepayment
of the Loans (other than Prime Rate Loans) under Section 2.5(a) shall
be accompanied by the payment of accrued interest on the principal prepaid to
the date of payment and, after payment of such interest, shall be applied, in
the absence of instruction by the Borrower to the Lenders in accordance with
the provisions of Section 3.


 


2.6                                 Conversions.


 


(a)                                  Conversion
Elections.  The Borrower may elect
from time to time to convert LIBOR Loans to Prime Rate Loans by giving the
Administrative Agent at least one Business Day’s prior irrevocable notice of
such election, specifying the amount to be so converted, provided, that any
such conversion of LIBOR Loans shall only be made on the last day of the
Interest Period applicable thereto.  In
addition, the Borrower may elect from time to time to convert Prime Rate Loans
to LIBOR Loans or to convert LIBOR Loans to new LIBOR Loans by giving the
Administrative Agent at least three (3) Business Days’ prior irrevocable
notice of such election, specifying the amount to be so converted and the
initial Interest Period relating thereto, provided that any such conversion of
Prime Rate Loans to LIBOR Loans shall only be made on a Business Day and any
such conversion of LIBOR Loans to new LIBOR Loans shall only be made on the last
day of the Interest Period applicable to the LIBOR Loans which are to be
converted to such new LIBOR Loans.  Each
such notice shall be in the form of Exhibit F and must be delivered
to the Administrative Agent prior to 12:00 noon on the Business Day required by
this Section for the delivery of such notices to the Administrative
Agent.  The Administrative Agent shall
promptly provide the Lenders with notice of any such election.  Prime Rate Loans and LIBOR Loans may be
converted pursuant to this Section in whole or in part, provided that
conversions of Prime Rate Loans to LIBOR Loans, or LIBOR Loans to new LIBOR
Loans, shall be in an aggregate principal amount of $5,000,000 or such amount
plus a whole multiple of $100,000 in excess thereof.


 


28





















 


(b)                                 Effect
on Conversions if an Event of Default. 
Notwithstanding anything in this Section to the contrary, no Prime
Rate Loan may be converted to a LIBOR Loan, and no LIBOR Loan may be converted
to a new LIBOR Loan, if a Default or Event of Default has occurred and is
continuing either (i) at the time the Borrower shall notify the
Administrative Agent of its election to convert or (ii) on the requested
Conversion Date.  In such event, such
Prime Rate Loan shall be automatically continued as a Prime Rate Loan or such
LIBOR Loan shall be automatically converted to a Prime Rate Loan on the last
day of the Interest Period applicable to such LIBOR Loan.


 


(c)                                  Conversion
not a Borrowing.  Each conversion
shall be effected by each Lender by applying the proceeds of its new Prime Rate
Loan or LIBOR Loan, as the case may be, to its Advances (or portion thereof)
being converted (it being understood that such conversion shall not constitute
a borrowing for purposes of Sections 4 or 5).


 


2.7                                 Interest Rate and
Payment Dates.


 


(a)                                  Prior
to Maturity.  Except as otherwise
provided in Section 2.7(b), prior to the Maturity Date, the Loans shall
bear interest on the outstanding principal balance thereof at the applicable
interest rate or rates per annum set forth below:


 


	
  ADVANCES

  	
   

  	
  RATE

  
	
   

  	
   

  	
   

  
	
  Each Prime
  Rate Loan

  	
   

  	
  Prime Rate
  plus the Applicable Margin.

  
	
   

  	
   

  	
   

  
	
  Each LIBOR
  Loan

  	
   

  	
  LIBOR for
  the applicable Interest Period plus the Applicable Margin.

  



 


(b)                                 Event
of Default.  After the occurrence and
during the continuance of an Event of Default, the outstanding principal
balance of (a) the LIBOR Rate Loans and any overdue interest with respect
thereto shall bear interest, whether before or after the entry of any judgment
thereon, at a rate per annum equal to LIBOR for the applicable Interest Period
plus the Applicable Margin plus 2% and (b) the Prime Rate Loans and any
overdue interest with respect thereto or other amount payable under the Loan
Documents shall bear interest, whether before or after the entry of any
judgment thereon, at a rate per annum equal to the Prime Rate plus 2% (the “Default
Rate”).


 


(c)                                  Interest
Payment Dates.  Accrued interest on
each Loan shall be payable in arrears on each Interest Payment Date for such
Loan, provided that (i) interest accrued pursuant to paragraph (b) of
this Section shall be payable on demand, (ii) in the event of any
repayment or prepayment of any Loan, accrued interest on the principal amount
repaid or prepaid shall be payable on the date of such repayment or prepayment
and (iii) in the event of any conversion of any LIBOR Loans prior to the
end of the current Interest Period therefor, accrued interest on such Loan
shall be payable on the effective date of such conversion.


 


(d)                                 General.  Interest on (i) Prime Rate Loans shall
be calculated on the basis of a year of 365 or 366 days, as the case may be,
and (ii) LIBOR Loans shall be calculated on the basis of a 360 day year,
in each case for the actual number of days elapsed, including the first


 


29





















 


day but
excluding the last.  Any change in the
interest rate on the Loans resulting from a change in the Prime Rate or a
Pricing Level shall become effective as of the opening of business on the day
on which such change shall become effective. 
The Administrative Agent shall, as soon as practicable, notify the
Borrower and the Lenders of the effective date and the amount of each such
change in the Prime Rate or a Pricing Level, but any failure to so notify shall
not in any manner affect the obligation of the Borrower to pay interest on the
Loans in the amounts and on the dates required. 
Each determination of the Prime Rate, a LIBOR or a Pricing Level by the
Administrative Agent pursuant to this Agreement shall be conclusive and binding
on the Borrower and the Lenders absent manifest error.  At no time shall the interest rate payable on
the Loans of any Lender, together with all other amounts payable under the Loan
Documents, to the extent the same are construed to constitute interest, exceed
the Highest Lawful Rate.  If interest
payable to a Lender on any date would exceed the maximum amount permitted by
the Highest Lawful Rate, such interest payment shall automatically be reduced
to such maximum permitted amount, and interest for any subsequent period, to
the extent less than the maximum amount permitted for such period by the
Highest Lawful Rate, shall be increased by the unpaid amount of such
reduction.  Any interest actually received
for any period in excess of such maximum allowable amount for such period shall
be deemed to have been applied as a prepayment of the Loans.  The Borrower acknowledges that the Prime Rate
is only one of the bases for computing interest on loans made by the Lenders,
and by basing interest payable on Prime Rate Loans on the Prime Rate, the
Lenders have not committed to charge, and the Borrower has not in any way
bargained for, interest based on a lower or the lowest rate at which the
Lenders may now or in the future make loans to other borrowers.


 


2.8                                 Substituted
Interest Rate.


 


In the event that (i) the Administrative Agent shall have
reasonably determined (which determination shall be conclusive and binding upon
the Borrower) that by reason of circumstances affecting the interbank eurodollar
market adequate and reasonable means do not exist for ascertaining the LIBOR
applicable pursuant to Section 2.7 or (ii) the Required Lenders shall
have notified the Administrative Agent that they have reasonably determined
(which determination shall be conclusive and binding on the Borrower) that the
applicable LIBOR will not adequately and fairly reflect the cost to such
Lenders of maintaining or funding loans bearing interest based on such LIBOR,
with respect to any portion of the Loans that the Borrower has requested be
made as LIBOR Loans or LIBOR Loans that will result from the requested
conversion of any portion of the Advances into LIBOR Loans (each, an “Affected
Advance”), the Administrative Agent shall promptly notify the Borrower and the
Lenders (by telephone or otherwise, to be promptly confirmed in writing) of
such determination, on or, to the extent practicable, prior to the requested
Borrowing Date or Conversion Date for such Affected Advances.  If the Administrative Agent shall give such
notice, (a) any Affected Advances shall be made as Prime Rate Loans, (b) the
Advances (or any portion thereof) that were to have been converted to Affected
Advances shall be converted to or continued as Prime Rate Loans and (c) any
outstanding Affected Advances shall be converted, on the last day of the then
current Interest Period with respect thereto, to Prime Rate Loans.  Until any notice under clauses (i) or
(ii), as the case may be, of this Section has been withdrawn by the
Administrative Agent (by notice to the Borrower promptly upon either (x) the
Administrative Agent having determined that such circumstances affecting the
LIBOR market no longer exist and that adequate and reasonable means do exist
for determining the LIBOR pursuant to Section 2.7 or (y) the
Administrative


 


30





















 


Agent having been notified by such Required
Lenders that circumstances no longer render the Advances (or any portion
thereof) Affected Advances), no further LIBOR Loans shall be required to be
made by the Lenders nor shall the Borrower have the right to convert all or any
portion of the Loans to LIBOR Loans.


 


2.9                                 Taxes; Net
Payments.


 


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


 


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


 


2.10                           Illegality.


 


Notwithstanding any other provisions herein, if any law, regulation,
treaty or directive hereafter enacted, promulgated, approved or issued, or any
change in any presently existing law, regulation, treaty or directive, or in
the interpretation or application thereof, shall make it unlawful for any
Credit Party to make or maintain its LIBOR Loans as contemplated by this
Agreement, such Credit Party shall so notify the Administrative Agent and the
Administrative Agent shall forthwith give notice thereof to the other Credit
Parties and the Borrower, whereupon (i) the commitment of such Credit
Party hereunder to make LIBOR Loans or convert Prime Rate Loans to LIBOR Loans
shall forthwith be suspended and (ii) such Credit Party’s Loans then
outstanding as LIBOR Loans affected hereby, if any, shall be converted
automatically to Prime Rate Loans on the last day of the then current Interest
Period applicable thereto or within such earlier period as required by
law.  If the commitment of any Credit
Party with respect to LIBOR Loans is suspended pursuant to this Section and
thereafter it is once again legal for such Credit Party to make or maintain
LIBOR Loans, such Credit Party’s commitment to make or maintain LIBOR Loans
shall be reinstated and such Credit Party shall notify the Administrative Agent
and the Borrower of such event. 
Notwithstanding the foregoing, to the extent that the conditions giving
rise to the notice requirement set forth in this Section can be eliminated
by the transfer of such Credit Party’s Loans or Commitment to another of its
branches, and to the extent that such transfer is not inconsistent with such
Credit Party’s internal policies of general application and only if, as
determined by such Credit Party in its sole discretion, the transfer of such
Loan or Commitment, as the case may be, would not otherwise


 


31





















 


adversely affect such Loans or such Credit
Party, the Borrower may request, and such Credit Party shall use reasonable
efforts to effect, such transfer.


 


2.11                           Increased
Costs.


 


In the event that any law, regulation, treaty or directive hereafter
enacted, promulgated, approved or issued or any change in any presently
existing law, regulation, treaty or directive therein or in the interpretation
or application thereof by any Governmental Authority charged with the
administration thereof or compliance by any Credit Party (or any corporation
directly or indirectly owning or controlling such Credit Party) with any
request or directive, whether or not having the force of law, from any central
bank or other Governmental Authority, agency or instrumentality:


 


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


 


(b)                                 does
or shall impose, modify or make applicable any reserve, special deposit,
compulsory loan, assessment, increased cost or similar requirement against
assets held by, or deposits of, or advances or loans by, or other credit
extended by, or any other acquisition of funds by, any office of such Credit
Party in respect of its LIBOR Loans, which, in the case of LIBOR Loans, is not
otherwise included in the determination of the LIBOR;


 


and the result of any of the foregoing is to increase the cost to such
Credit Party of making, issuing, renewing, converting or maintaining its LIBOR
Loans, or its commitment to make such LIBOR Loans, or to reduce any amount
receivable hereunder in respect of its LIBOR Loans, then, in any such case, the
Borrower shall pay such Credit Party, upon its demand, any additional amounts
necessary to compensate such Credit Party for such additional cost or reduction
in such amount receivable which such Credit Party deems to be material as
reasonably determined by such Credit Party; provided, however, that nothing in
this Section shall require the Borrower to indemnify the Credit Parties
with respect to withholding Taxes for which the Borrower has no obligation
under Section 2.9.  No failure by
any Credit Party to demand compensation for any increased cost during any
Interest Period shall constitute a waiver of such Credit Party’s right to
demand such compensation at any time.  A
statement setting forth the calculations of any additional amounts payable
pursuant to the foregoing sentence submitted by a Credit Party to the Borrower
shall be conclusive absent manifest error. 
The obligations of the Borrower under this Section shall survive
the termination of this Agreement and any of the Commitments or the payment of
the Notes and all other amounts payable under the Loan Documents for a period
of one hundred eighty (180) days and shall thereafter terminate forever.  Failure to demand compensation pursuant to
this Section shall not constitute a waiver of such Credit Party’s right to
demand such compensation.  To the extent
that any increased costs of the type referred to in this


 


32





















 


Section are being incurred by a Credit Party and such costs can be
eliminated or reduced by the transfer of such Credit Party’s Loans or
Commitment to another of its branches, and to the extent that such transfer is
not inconsistent with such Credit Party’s internal policies of general
application and only if, as determined by such Credit Party in its sole
discretion, the transfer of such Loan or Commitment, as the case may be, would
not otherwise materially adversely affect such Loan or such Credit Party, the
Borrower may request, and such Lender shall use reasonable efforts to effect,
such transfer.


 


2.12                           Indemnification for Break
Funding Losses.


 


Notwithstanding anything contained herein to the contrary, if (i) the
Borrower shall fail to borrow on the Borrowing Date, if it shall have requested
a LIBOR Loan, or shall fail to convert on a Conversion Date, after it shall
have given notice to do so in which it shall have requested a LIBOR Loan
pursuant to Section 2.6 or (ii) a LIBOR Loan shall be terminated or
prepaid for any reason prior to the last day of the Interest Period applicable
thereto (including, without limitation, any mandatory prepayment or a
prepayment resulting from acceleration or illegality), the Borrower agrees to
indemnify each Credit Party against, and to pay on demand directly to such
Credit Party, any loss or expense suffered by such Credit Party as a result of
such failure to borrow or convert, or such termination or repayment, including,
without limitation, an amount, if greater than zero, equal to:


 


A x (B-C) x D/360


 


where:


 


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


 


“B” equals the applicable LIBOR;


 


“C” equals the applicable LIBOR (expressed as a decimal) in effect on
or about the first day of the applicable Remaining Interest Period, based on
the applicable rates offered or bid, as the case may be, on or about such date,
for deposits in an amount equal approximately to such Credit Party’s pro rata
share of the Affected Principal Amount with an Interest Period equal
approximately to the applicable Remaining Interest Period, as determined by
such Credit Party;


 


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


 


and any other out of pocket loss or expense (including any internal
processing charge customarily charged by such Credit Party) suffered by such
Credit Party in connection with such LIBOR Loan including, without limitation,
in liquidating or employing deposits acquired to fund or maintain the funding
of its pro rata share of the Affected Principal Amount, or redeploying funds
prepaid or repaid, in amounts which correspond to its pro rata share of the
Affected Principal Amount.  A statement
setting forth the calculations of any amounts payable pursuant to this Section submitted
by a Credit Party to the Borrower shall be conclusive and binding on the
Borrower absent manifest error.  The
obligations of the Borrower under this Section shall survive


 


33





















 


the termination of this Agreement and the Commitments and the payment
of the Notes and all other amounts payable under the Loan Documents.


 


2.13                           Use
of Proceeds.


 


The proceeds of Loans shall be used solely to refinance existing debt
and for general corporate purposes of the Borrower and its Subsidiaries.


 


2.14                           Capital
Adequacy.


 


If (i) after the date hereof, the enactment or promulgation of, or
any change or phasing in of, any United States or foreign law or regulation or
in the interpretation thereof by any Governmental Authority charged with the
administration thereof, (ii) compliance with any directive or guideline
from any central bank or United States or foreign Governmental Authority (whether
or not having the force of law) promulgated or made after the date hereof, or (iii) compliance
with the Risk Based Capital Guidelines of the Board of Governors of the Federal
Reserve System as set forth in 12 CFR Parts 208 and 225, or of the Comptroller
of the Currency, Department of the Treasury, as set forth in 12 CFR Part 3,
or similar legislation, rules, guidelines, directives or regulations under any
applicable United States or foreign Governmental Authority affects or would
affect the amount of capital required to be maintained by a Credit Party (or
any lending office of such Credit Party) or any corporation directly or
indirectly owning or controlling such Credit Party or imposes any restriction
on or otherwise adversely affects such Credit Party (or any lending office of
such Credit Party) or any corporation directly or indirectly owning or
controlling such Credit Party and such Credit Party shall have reasonably
determined that such enactment, promulgation, change or compliance has the effect
of reducing the rate of return on such Credit Party’s capital or the asset
value to such Credit Party of any Loan made by such Credit Party as a
consequence, directly or indirectly, of its obligations to make and maintain
the funding of its Loans at a level below that which such Credit Party could
have achieved but for such enactment, promulgation, change or compliance (after
taking into account such Credit Party’s policies regarding capital adequacy) by
an amount deemed by such Credit Party to be material, then, upon demand by such
Credit Party, the Borrower shall promptly pay to such Credit Party such
additional amount or amounts as shall be sufficient to compensate such Credit
Party for such reduction in such rate of return or asset value.  A certificate in reasonable detail as to such
amounts submitted to the Borrower and the Administrative Agent setting forth
the determination of such amount or amounts that will compensate such Credit
Party for such reductions shall be presumed correct absent manifest error.  No failure by any Credit Party to demand
compensation for such amounts hereunder shall constitute a waiver of such
Credit Party’s right to demand such compensation at any time.  Such Credit Party shall, however, use
reasonable efforts to notify the Borrower of such claim within 90 days after
the officer of such Credit Party having primary responsibility for this
Agreement has obtained knowledge of the events giving rise to such claim.  The obligations of the Borrower under this Section shall
survive the termination of this Agreement and the Commitments and the payment
of the Notes and all other amounts payable under the Loan Documents.


 


34





















 


2.15                           Administrative Agent’s
Records.


 


The Administrative Agent’s records with respect to the Loans, the
interest rates applicable thereto, each payment by the Borrower of principal
and interest on the Loans, and fees, expenses and any other amounts due and
payable in connection with this Agreement shall be presumptively correct absent
manifest error as to the amount of the Loans, and the amount of principal and
interest paid by the Borrower in respect of such Loans and as to the other
information relating to the Loans, and amounts paid and payable by the Borrower
hereunder and under the Notes.  The
Administrative Agent will when requested by the Borrower advise the Borrower of
the principal and interest outstanding under the Loans as of the date of such
request and the dates on which such payments are due.


 


3.                                       PAYMENTS;
APPLICATION OF PAYMENTS.


 


Each payment, including each prepayment, of principal and interest on
the Loans and any other amounts due hereunder shall be made by the Borrower to
the Administrative Agent without set off, deduction or counterclaim, at its
office set forth in Section 11.2 in funds immediately available to the
Administrative Agent at such office by 12:00 noon on the due date for such
payment.  Promptly upon receipt thereof
by the Administrative Agent, the Administrative Agent shall remit, in like funds
as received, to the Lenders who maintain any of their Loans as Prime Rate Loans
or LIBOR Loans, each such Lender’s pro rata share of such payments which are in
respect of principal or interest due on such Prime Rate Loans or LIBOR
Loans.  The failure of the Borrower to
make any such payment by such time shall not constitute a default hereunder,
provided that such payment is made on such due date, but any such payment made
after 12:00 noon on such due date shall be deemed to have been made on the next
Business Day for the purpose of calculating interest on amounts outstanding on
the Loans.  If any payment hereunder or
under the Notes shall be due and payable on a day which is not a Business Day,
the due date thereof (except as otherwise provided in the definition of
Interest Period) shall be extended to the next Business Day and interest shall
be payable at the applicable rate specified herein during such extension.  If any payment is made with respect to any
LIBOR Loans prior to the last day of the applicable Interest Period, the
Borrower shall indemnify each Lender in accordance with Section 2.12.


 


4.                                       REPRESENTATIONS
AND WARRANTIES.


 


In order to induce the Administrative Agent and the Lenders to enter
into this Agreement and to make the Loans, the Borrower makes the following
representations and warranties to the Administrative Agent and each Lender:


 


4.1                                 Existence
and Power.


 


(a)                                  The
Borrower (i) is a Maryland corporation duly organized and validly existing
and in good standing under the laws of Maryland, (ii) has all requisite
power and authority to own its Property and to carry on its business as now
conducted, and (iii) is in good standing and authorized to do business in
each jurisdiction in which the nature of the business conducted therein or the
Property owned therein make such qualification necessary, except where such
failure to qualify could not reasonably be expected to have a Material Adverse
Effect.


 


35





















 


(b)                                 Each
Subsidiary of the Borrower (including each Subsidiary Guarantor) (i) is a
corporation, partnership, limited liability company, real estate investment
trust or business trust, is validly existing and in good standing under the
laws of the jurisdiction of its organization and has all requisite power and
authority to own its Property and to carry on its business as now conducted,
and (ii) is in good standing and authorized to do business in each other
jurisdiction in which the nature of the business conducted therein or the
Property owned therein make such qualification necessary, except where such
failure to qualify could not reasonably be expected to have a Material Adverse
Effect.


 


4.2                                 Authority.


 


The Borrower has full legal power and authority to enter into, execute,
deliver and perform the terms of the Loan Documents to which it is a party and
to make the borrowings contemplated thereby, to execute, deliver and carry out
the terms of the Notes and to incur the obligations provided for herein and
therein, all of which have been duly authorized by all proper and necessary
corporate action.


 


4.3                                 Binding
Agreement.


 


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


 


(b)                                 The
execution, delivery and performance by the Borrower of the Loan Documents to
which it is a party do not violate the provisions of any applicable statute,
law (including, without limitation, any applicable usury or similar law), rule or
regulation of any Governmental Authority.


 


4.4                                 Subsidiaries;
DownREIT Partnerships.


 


As of the Effective Date, the Borrower has only the Subsidiaries set
forth on Schedule 4.4.  Schedule 4.4
sets forth the name of, and the ownership interest of the Borrower in, each
Subsidiary of the Borrower and identifies each Subsidiary that is a Subsidiary
Guarantor, in each case as of the Effective Date. The shares of each corporate
Subsidiary of the Borrower that are owned by the Borrower are duly authorized,
validly issued, fully paid and nonassessable and are owned free and clear of
any Liens.  The interest of the Borrower
in each non corporate Subsidiary is owned free and clear of any Liens (other
than Liens applicable to a partner under the terms of any partnership
agreement, or those applicable to a member under the terms of any limited
liability company operating agreement, to secure the Borrower’s obligation to
make capital contributions or similar payments thereunder).  As of the Effective Date, the only DownREIT
Partnership is Excel Realty Partners, L.P. and the only Subsidiaries of Excel
Realty Partners, L.P. are as set forth on Schedule 4.4.  As of the Effective Date, there is no
Subsidiary of the Borrower (other than ERT Development Corporation) that is a
guarantor of any unsecured Indebtedness of the Borrower that is not also a
Subsidiary Guarantor.


 


36





















 


4.5                                 Litigation.


 


(a)                                  There
are no actions, suits or proceedings at law or in equity or by or before any
Governmental Authority (whether or not purportedly on behalf of the Borrower or
any Subsidiary of the Borrower) pending or, to the knowledge of the Borrower,
threatened against the Borrower or any Subsidiary of the Borrower or any of
their respective Properties or rights, which (i) if adversely determined,
could reasonably be expected to have a Material Adverse Effect, (ii) call
into question the validity or enforceability of any of the Loan Documents, or (iii) could
reasonably be expected to result in the rescission, termination or cancellation
of any franchise, right, license, permit or similar authorization held by the
Borrower or any Subsidiary of the Borrower, which rescission, termination or
cancellation could reasonably be expected to have a Material Adverse Effect.


 


(b)                                 As
of the date hereof, Schedule 4.5 sets forth all actions, suits and
proceedings at law or in equity or by or before any Governmental Authority
(whether or not purportedly on behalf of the Borrower or any Subsidiary of the
Borrower) pending or, to the knowledge of the Borrower, threatened against the
Borrower, any Subsidiary of the Borrower or any of their respective Properties
or rights which, if adversely determined, could reasonably be expected to have
a Material Adverse Effect.


 


4.6                                 Required
Consents.


 


No consent, authorization or approval of, filing with, notice to, or exemption
by, stockholders, any Governmental Authority or any other Person not obtained
is required to be obtained by the Borrower to authorize, or is required in
connection with the execution, delivery and performance of the Loan Documents
or is required to be obtained by the Borrower as a condition to the validity or
enforceability of the Loan Documents.


 


4.7                                 No Conflicting
Agreements.


 


Neither the Borrower nor any Subsidiary of the Borrower is in default
beyond any applicable grace or cure period under any mortgage, indenture,
contract or agreement to which it is a party or by which it or any of its
Property is bound, the effect of which default could reasonably be expected to
have a Material Adverse Effect.  The execution,
delivery or carrying out of the terms of the Loan Documents will not constitute
a default under, or result in the creation or imposition of, or obligation to
create, any Lien upon any Property of the Borrower or any Subsidiary of the
Borrower pursuant to the terms of any such mortgage, indenture, contract or
agreement.


 


4.8                                 Compliance with
Applicable Laws.


 


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


 


37





















 


4.9                                 Taxes.


 


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


 


4.10                           Governmental Regulations.


 


Neither the Borrower nor any Subsidiary of the Borrower is subject to
regulation under the Public Utility Holding Company Act of 1935, as amended,
the Federal Power Act, as amended, or the Investment Company Act of 1940, as
amended, and neither the Borrower nor any Subsidiary of the Borrower is subject
to any statute or regulation which prohibits or restricts the incurrence of
Indebtedness under the Loan Documents, including, without limitation, statutes
or regulations relative to common or contract carriers or to the sale of
electricity, gas, steam, water, telephone, telegraph or other public utility
services.


 


4.11                           Federal Reserve
Regulations; Use of Loan Proceeds.


 


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


 


4.12                           Plans; Multiemployer
Plans.


 


As of the Effective Date, each of the Borrower and its ERISA Affiliates
maintains or makes contributions only to the Plans and Multiemployer Plans
listed on Schedule 4.12.  Each Plan,
and, to the best knowledge of the Borrower, each Multiemployer Plan, is in
compliance in all material respects with, and has been administered in all
material respects in compliance with, the applicable provisions of ERISA, the
Code and any other applicable Federal or state law, and no event or condition
is occurring or exists concerning which the Borrower would be under an
obligation to furnish a report to the Administrative Agent and each Lender as
required by Section 7.2(d).  As of December 31,
2004, each Plan was “fully funded”, which for purposes of this Section means
that the fair market value of the assets of such Plan is not less than the
present


 


38





















 


value of the accrued benefits of all
participants in the Plan, computed on a plan termination basis.  To the best knowledge of the Borrower, no
Plan has ceased being fully funded.


 


4.13                           Financial Statements.


 


The Borrower has heretofore delivered to the Administrative Agent and
the Lenders copies of the audited Consolidated Balance Sheet of the Borrower
and its Consolidated Subsidiaries as of December 31, 2004, and the audited
Consolidated Statements of Operations, Stockholders’ Equity and Cash Flows for
the Borrower and its Consolidated Subsidiaries for the fiscal year then ended
(collectively, with the related notes and schedules, the “Financial
Statements”).  The Financial
Statements fairly present in all material respects the Consolidated financial
condition and results of the operations of the Borrower and its Consolidated
Subsidiaries as of the dates and for the periods indicated therein and have
been prepared in conformity with GAAP. 
Except as reflected in the Financial Statements or in the notes thereto,
neither the Borrower nor any Subsidiary of the Borrower has any obligation or
liability of any kind (whether fixed, accrued, contingent, unmatured or otherwise)
involving material amounts which, in accordance with GAAP, should have been
shown on the Financial Statements and was not. 
Since December 31, 2004, there has been no material adverse change
in the condition (financial or otherwise), operations, prospects or business of
the Borrower and its Subsidiaries taken as a whole.


 


4.14                           Property.


 


Each of the Borrower and its Subsidiaries has good and marketable title
to all of its Property, title to which is material to the Borrower or such
Subsidiary, subject to no Liens, except Permitted Liens.  There are no unpaid or outstanding real
estate or similar taxes or assessments on or against any Real Property other
than (i) real estate or other taxes or assessments that are not yet due
and payable, and (ii) such taxes as the Borrower or any Subsidiary of the
Borrower is contesting in good faith or which individually or in the aggregate
could not reasonably be expected to have a Materially Adverse Effect.  There are no pending eminent domain
proceedings against any Real Property, and, to the knowledge of the Borrower,
no such proceedings are presently threatened or contemplated by any
Governmental Authority against any Real Property, which pending, threatened or
contemplated proceedings individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect. 
None of the Real Property is now damaged as a result of any fire,
explosion, accident, flood or other casualty which individually or in the aggregate
could reasonably be expected to have a Material Adverse Effect.


 


4.15                           Franchises, Intellectual
Property, Etc.


 


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


 


39





















 


franchise, Intellectual Property, license or
other right and which revocation or termination could reasonably be expected to
have a Material Adverse Effect.


 


4.16                           Environmental Matters.


 


(a)                                  The
Borrower and each of its Subsidiaries is in compliance with the requirements of
all applicable Environmental Laws except for such non compliance which could
not, either individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.


 


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


 


(c)                                  Neither
the Borrower nor any of its Subsidiaries (i) has received notice (written
or oral) or otherwise learned of any claim, demand, suit, action, proceeding,
event, condition, report, directive, lien, violation, non compliance or
investigation indicating or concerning any potential or actual liability
(including, without limitation, potential liability for enforcement,
investigatory costs, cleanup costs, government response costs, removal costs,
remedial costs, natural resources damages, property damages, personal injuries
or penalties) arising in connection with (x) any non compliance with or
violation of the requirements of any applicable Environmental Laws, or (y) the
presence of any Hazardous Substance on any Real Property (or any Real Property
previously owned by the Borrower or any Subsidiary of the Borrower) or the
release or threatened release of any Hazardous Substance into the environment
which, in either case, could, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, (ii) has any
threatened or actual liability in connection with the presence of any Hazardous
Substance on any Real Property (or any Real Property previously owned by the
Borrower or any Subsidiary of the Borrower) or the release or threatened
release of any Hazardous Substance into the environment which, in either case,
could, either individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect, (iii) has received notice of any federal or
state investigation evaluating whether any remedial action is needed to respond
to the presence of any Hazardous Substance on any Real Property (or any Real
Property previously owned by the Borrower or any Subsidiary of the Borrower) or
a release or threatened release of any Hazardous Substance into the environment
for which the Borrower or any Subsidiary of the Borrower is or may be liable
the results of which could, in either case, either individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect, or (iv) has
received notice that the Borrower or any Subsidiary of the Borrower is or may
be liable to any Person under any Environmental Law which liability could,
either individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.


 


(d)                                 To
the best of the Borrower’s knowledge, no Real Property is located in an area
identified by the Secretary of Housing and Urban Development as an area having
special flood hazards, or if any such Real Property is located in such a
special flood hazard area, then the


 


40





















 


Borrower has obtained all insurance that is required to be maintained
by law or which is customarily maintained by Persons engaged in similar
businesses and owning similar Properties in the same general areas in which the
Borrower operates.


 


4.17                           Labor
Relations.


 


Neither the Borrower nor any of its Subsidiaries is a party to any
collective bargaining agreement, other than the collective bargaining agreement
covering fewer than 25 employees at the Roosevelt Mall Shopping Center in
Philadelphia, Pennsylvania, and, to the best knowledge of the Borrower, no
petition has been filed or proceedings instituted by any employee or group of
employees with any labor relations board seeking recognition of a bargaining
representative with respect to the Borrower or such Subsidiary.  There are no material controversies pending
between the Borrower or any Subsidiary and any of their respective employees,
which could reasonably be expected to have a Material Adverse Effect.


 


4.18                           Solvency.


 


On the Effective Date and immediately following the making of the
Loans, and after giving effect to the application of the proceeds of such
Loans:  (a) the fair value of the
assets of the Borrower and its Subsidiaries, taken as a whole, at a fair
valuation, will exceed the debts and liabilities, including Contingent
Obligations, of the Borrower and its Subsidiaries, taken as a whole; (b) the
present fair saleable value of the Property of the Borrower and its
Subsidiaries, taken as a whole, will be greater than the amount that will be
required to pay the probable liability of the debts and other liabilities,
subordinated, contingent or otherwise of the Borrower and its Subsidiaries, as
such debts and other liabilities become absolute and mature; (c) the
Borrower and its Subsidiaries, taken as a whole, will be able to pay its debts
and liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and mature; and (d) the Borrower and its
Subsidiaries, taken as a whole, will not have unreasonably small capital with
which to conduct the business in which they are engaged as such business is now
conducted and is proposed to be conducted hereafter.


 


4.19                           REIT
Status.


 


The Borrower (i) has made an election pursuant to Section 856
of the Code to qualify as a REIT, (ii) has satisfied and continues to
satisfy all of the requirements under §§ 856 859 of the Code and the
regulations and rulings issued thereunder which must be satisfied for the
Borrower to maintain its status as a REIT, and (iii) is in compliance in
all material respects with all Code sections applicable to REITs generally and
the regulations and rulings issued thereunder.


 


4.20                           List of Unencumbered
Assets.


 


A list of all the Unencumbered Assets as of the date of this Agreement
is attached hereto as Schedule 4.20.


 


4.21                           Operation of Business.


 


The Borrower is a self advised and self managed REIT.


 


41





















 


4.22                           No Misrepresentation.


 


No representation or warranty contained herein and no certificate or
report furnished or to be furnished by the Borrower or any Subsidiary of the
Borrower in connection with the transactions contemplated hereby, contains or
will contain a misstatement of material fact, or, to the best knowledge of the
Borrower, omits or will omit to state a material fact required to be stated in
order to make the statements herein or therein contained not misleading in the
light of the circumstances under which made.


 


4.23                           Anti-Terrorism Laws.


 


Neither Borrower nor any Subsidiary Guarantor is (or will be) a person
with whom a Lender is restricted from doing business under regulations of the
Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury of
the United States of America (including, those Persons named on OFAC’s
Specially Designated and Blocked Persons list) or under any statute, executive
order (including, the September 24, 2001 Executive Order Blocking Property
and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or
Support Terrorism), or other governmental action and is not and shall not
knowingly engage in any dealings or transactions or otherwise knowingly be
associated with such persons.  In
addition, Borrower hereby agrees to (a) take any such actions as any
Lender deems reasonably necessary, and (b) provide to any Lender any
additional information that such Lender deems reasonably necessary, from time
to time in order to ensure compliance with all applicable Laws concerning money
laundering and similar activities.


 


5.                                       CONDITIONS
TO EFFECTIVENESS OF THIS AGREEMENT.


 


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


 


5.1                                 Evidence
of Action.


 


(a)                                  The
Administrative Agent shall have received a certificate, dated the Effective
Date, of the Secretary or Assistant Secretary of the Borrower substantially in
the form of Exhibit G (i) attaching a true and complete copy
of the resolutions of its Board of Directors authorizing the execution and
delivery of the Loan Documents by the Borrower and the performance of the
Borrower’s obligations thereunder, and of all other documents evidencing other
necessary action (in form and substance reasonably satisfactory to the
Administrative Agent) taken by it to authorize the Loan Documents and the
transactions contemplated thereby, (ii) attaching a true and complete copy
of its articles of incorporation and by laws, (iii) setting forth the
incumbency of its officer or officers who may sign the Loan Documents,
including therein a signature specimen of such officer or officers, and (iv) certifying
that said corporate charter and by laws are true and complete copies thereof,
are in full force and effect and have not been amended or modified.


 


(b)                                 The
Administrative Agent shall have received a certificate, dated the Effective
Date, of the Secretary or Assistant Secretary of each Subsidiary Guarantor (or
such Subsidiary Guarantor’s managing partner, general partner or managing member,
as applicable) substantially in the form of Exhibit H (i) attaching
a true and complete copy of the resolutions of


 


42





















 


its Board of Directors, Trustees or Managers, as the case may be,
authorizing its execution and delivery of the Guaranty and the performance of
its obligations thereunder, and of all other documents evidencing other
necessary action (in form and substance reasonably satisfactory to the
Administrative Agent) taken by it to authorize the Guaranty and the
transactions contemplated thereby, (ii) attaching a true and complete copy
of its articles of incorporation or corporate charter, declaration of trust or
certificate of formation and, if applicable, by laws, operating agreement or
agreement of limited liability company, and if such certificate is from such
Subsidiary Guarantor’s managing partner, general partner or managing member,
attaching a true and complete copy of the applicable Subsidiary Guarantor’s
partnership agreement or operating agreement and other organizational
documents, (iii) setting forth the incumbency of its officer or officers
who may sign the Guaranty, including therein a signature specimen of such
officer or officers, and (iv) certifying that said organizational documents
are true and complete copies thereof, are in full force and effect and have not
been amended or modified.


 


(c)                                  The
Administrative Agent shall have received certificates of good standing for the
Borrower from the Maryland State Department of Assessments and Taxation and for
each Subsidiary Guarantor from the Secretary of State for the State in which
such Subsidiary Guarantor is incorporated or formed, as applicable, and for the
Borrower from each jurisdiction other than Maryland in which the Borrower is
qualified to do business, provided that such Secretaries issue such
certificates with respect to the Borrower.


 


5.2                                 This
Agreement.


 


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


 


5.3                                 Notes.


 


The Administrative Agent shall have received, for the benefit of each
Lender, a Note in favor of each Lender, each of which Notes shall be duly
executed by an Authorized Signatory of the Borrower.


 


5.4                                 Guaranty.


 


The Administrative Agent shall have received counterparts of the Guaranty
signed by each of the Subsidiary Guarantors (or receipt by the Administrative
Agent from a party hereto of a facsimile signature page signed by such
party which shall have agreed to promptly provide the Administrative Agent with
originally executed counterparts thereof).


 


5.5                                 Litigation.


 


There shall be no injunction, writ, preliminary restraining order or
other order of any nature issued by any Governmental Authority in any respect
affecting the transactions provided for herein and no action or proceeding by
or before any Governmental Authority shall have been commenced and be pending
or, to the knowledge of the Borrower, threatened, seeking to prevent or delay
the transactions contemplated by the Loan Documents or challenging any other
terms


 


43





















 


and provisions hereof or thereof or seeking
any damages in connection therewith and the Administrative Agent shall have
received a certificate of an Authorized Signatory of the Borrower to the
foregoing effects.


 


5.6                                 Opinion of Counsel
to the Borrower.


 


The Administrative Agent shall have received an opinion of (i) Hogan &
Hartson L.L.P., outside counsel to the Borrower, and (ii) Steven F. Siegel, Esq.,
in house counsel to the Borrower, and (iii) counsel to each Subsidiary
Guarantor, and their respective general partners, managing partners or managing
members, as applicable, each addressed to the Administrative Agent and the
Lenders, and each dated the Effective Date, and each in form and substance
satisfactory to Administrative Agent, covering such matters as Administrative
Agent may reasonably request.


 


5.7                                 Fees and Expenses
of Special Counsel.


 


The fees and expenses of Special Counsel in connection with the
preparation, negotiation and closing of the Loan Documents shall have been
paid.


 


5.8                                 Compliance.


 


On the Effective Date and after giving effect to the Loans to be made
or created, (a) the Borrower shall be in compliance with all of the terms,
covenants and conditions hereof, (b) there shall not exist and be continuing
any Default or Event of Default, (c) the representations and warranties
contained in the Loan Documents shall be true and correct, and (d) the
aggregate outstanding principal balance of the Loans shall not exceed the Total
Commitment Amount.  Each notice
requesting a Loan shall be deemed to constitute a representation and warranty
by the Borrower on the date thereof that each of the foregoing matters is true
and correct in all respects.


 


5.9                                 Loan
Closings.


 


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


 


5.10                           Documentation and
Proceedings.


 


All corporate matters and legal proceedings and all documents and
papers in connection with the transactions contemplated by the Loan Documents
shall be reasonably satisfactory in form and substance to the Administrative
Agent and the Administrative Agent shall have received all information and
copies of all documents which the Administrative Agent or the Required Lenders
may reasonably have requested in connection therewith, such documents (where
appropriate) to be certified by an Authorized Signatory of the Borrower or
proper Governmental Authorities.


 


44





















 


5.11                           Required Acts and
Conditions.


 


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


 


5.12                           Approval of Special
Counsel.


 


All legal matters in connection with the making of the Loans shall be
reasonably satisfactory to Special Counsel.


 


5.13                           Other
Documents.


 


The Administrative Agent shall have received such other documents and
information with respect to the Borrower and its Subsidiaries or the
transactions contemplated hereby as the Administrative Agent or the Lenders
shall reasonably request.


 


6.                                       [Intentionally
Omitted.]


 


7.                                       AFFIRMATIVE
COVENANTS.


 


The Borrower agrees that, so long as any Loan remains outstanding and
unpaid, or any other amount is owing under any Loan Document to any Lender or
the Administrative Agent, the Borrower shall:


 


7.1                                 Financial
Statements.


 


Maintain a standard system of accounting in accordance with GAAP, and
furnish or cause to be furnished to the Administrative Agent and each Lender:


 


(a)                                  Annual
Statements.  As soon as available, but
in any event within 120 days after the end of each fiscal year of the Borrower,
a copy of its Consolidated Balance Sheet as at the end of such fiscal year,
together with the related Consolidated Statements of Income, Stockholders’
Equity and Cash Flows as of and through the end of such fiscal year, setting
forth in each case in comparative form the figures for the preceding fiscal
year.  The Consolidated Balance Sheets
and Consolidated Statements of Income, Stockholders’ Equity and Cash Flows
shall be audited and certified without qualification by the Accountants, which
certification shall (i) state that the examination by such Accountants in
connection with such Consolidated financial statements has been made in
accordance with generally accepted auditing standards and, accordingly,
includes the examination, on a test basis, of evidence supporting the amounts
and disclosures in such Consolidated financial statements, and (ii) include
the opinion of such Accountants that such Consolidated financial statements
present fairly, in all material respects, the Consolidated financial position
of the Borrower and its Subsidiaries, as of the date of such Consolidated
financial statements, and the Consolidated results of their operations and
their cash flows for each of the years identified therein in conformity with
GAAP (subject to any change in the requirements of GAAP).


 


45





















 


(b)                                 Annual
Operating Statements and Rent Roll. 
As soon as available, but in any event within 120 days after the end of
each fiscal year of the Borrower, and, if requested by Administrative Agent,
within sixty (60) days after the end of the first three fiscal quarters of each
year of the Borrower, copies of (i) the operating statements (in a form
reasonably satisfactory to the Administrative Agent) for all Real Property of
the Borrower, and (ii) a Rent Roll, each of which shall be certified by
the Chief Financial Officer to be true, correct and complete in all material
respects.  Additionally, upon the request
of the Administrative Agent, the Borrower shall deliver to the Administrative
Agent a Rent Roll.


 


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


 


(d)                                 Quarterly
Information Regarding Unencumbered Assets. 
Concurrently with the delivery of the financial statements referred to
in Sections 7.1(a) and 7.1(c), a list of all the Unencumbered Assets owned
by the Borrower, any wholly owned Subsidiary of the Borrower, each DownREIT
Partnership and any wholly owned Subsidiary of a DownREIT Partnership as of the
last day of such fiscal quarter setting forth the following information with
respect to each such Unencumbered Asset as of such date:  (i) location; (ii) percentage of
the Unencumbered Asset owned by the Borrower, any wholly owned Subsidiary of
the Borrower, each DownREIT Partnership and any wholly owned Subsidiary of a
DownREIT Partnership; and (iii) the Net Operating Income for such
Unencumbered Asset during such fiscal quarter.


 


(e)                                  Compliance
Certificate.  Concurrently with the
delivery of the financial statements referred to in Sections 7.1(a) and 7.1(c),
a Compliance Certificate, certified by the Chief Financial Officer, setting
forth in reasonable detail the computations demonstrating the Borrower’s
compliance with the provisions of Sections 8.12, 8.13, 8.14, 8.15, 8.16, 8.17
and 8.18.


 


(f)                                    Other
Information.  Such other information
as the Administrative Agent or any Lender may reasonably request from time to
time.


 


Administrative Agent, the Lenders and Borrower acknowledge and agree
that the Consolidated financial statements of the Borrower that are required to
be delivered pursuant hereto may include FIN 46 Entities, provided, however,
that the Borrower covenants and agrees to provide to the Administrative Agent
and the Lenders simultaneously with the delivery of such financial statements
the back-up information and calculations utilized by the Borrower in performing
the calculations set forth in the Compliance Certificate (in a form reasonably
satisfactory to the Administrative Agent).


 


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7.2                                 Certificates; Other
Information.


 


Furnish to the Administrative Agent and each Lender:


 


(a)                                  Defaults
Under Other Indebtedness.  Prompt
written notice if:  (i) any
Indebtedness of the Borrower or any Subsidiary of the Borrower is declared or
shall become due and payable prior to its stated maturity, or called and not
paid when due, or (ii) a default that extends beyond any applicable notice
or grace period shall have occurred under any note (other than the Notes) or
the holder of any such note, or other evidence of Indebtedness, certificate or
security evidencing any such Indebtedness or any obligee with respect to any
other Indebtedness of the Borrower or any Subsidiary of the Borrower has the
right to declare any such Indebtedness due and payable prior to its stated
maturity, and, in the case of either (i) or (ii), the Indebtedness that is
the subject of (i) or (ii) is, in the aggregate, $15,000,000 or more;


 


(b)                                 Action
of Governmental Authorities.  Prompt
written notice of:  (i) receipt of
any citation, summons, subpoena, order to show cause or other document naming
the Borrower or any Subsidiary of the Borrower a party to any proceeding before
any Governmental Authority which could reasonably be expected to have a
Material Adverse Effect or which calls into question the validity or
enforceability of any of the Loan Documents, and include with such notice a
copy of such citation, summons, subpoena, order to show cause or other
document; (ii) any lapse or other termination of any Intellectual
Property, license, permit, franchise or other authorization issued to the
Borrower or any Subsidiary of the Borrower by any Person or Governmental
Authority, which lapse or termination could reasonably be expected to have a
Material Adverse Effect; and (iii) any refusal by any Person or
Governmental Authority to renew or extend any such material Intellectual
Property, license, permit, franchise or other authorization, which refusal
could reasonably be expected to have a Material Adverse Effect;


 


(c)                                  SEC
or other Governmental Reports and Filings. 
Promptly upon becoming available, if requested by the Administrative
Agent or any Lender, copies of all regular, periodic or special reports which
the Borrower or any Subsidiary of the Borrower may now or hereafter be required
to file with or deliver to any securities exchange or the Securities and
Exchange Commission, or any other Governmental Authority succeeding to the
functions thereof, pursuant to the Securities Exchange Act of 1934, as amended.


 


(d)                                 ERISA
Information.  Promptly, and in any
event within ten Business Days, after the Borrower knows or has reason to know
that any of the events or conditions enumerated below with respect to any Plan
or Multiemployer Plan has occurred or exists, a statement signed by the Chief
Financial Officer setting forth details with respect to such event or condition
and the action, if any, which the Borrower or an ERISA Affiliate proposes to
take with respect thereto; provided, however, that if such event or condition
is required to be reported or noticed to the PBGC, such statement, together
with a copy of the relevant report or notice to the PBGC, shall be furnished
promptly and in any event not later than ten days after it is reported or
noticed to the PBGC:


 


(i)                                     any
reportable event, as defined in Section 4043(b) of ERISA with respect
to a Plan, as to which the PBGC has not by regulation waived the requirement of
Section 4043(a) of ERISA that it be notified within thirty days of
the occurrence of such event (provided that a failure to meet the minimum
funding standard of Section 412 of the Code or of Section 302 of
ERISA, including, without limitation, the failure to make, on or before its due
date, a


 


47





















 


required installment
under Section 412(m) of the Code or Section 302(e) of ERISA or
the disqualification of such Plan for purposes of Section 4043(b)(1) of
ERISA, shall be a reportable event regardless of the issuance of any waivers in
accordance with Section 412(d) of the Code) and any request for a
waiver under Section 412(d) of the Code for any Plan;


 


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


 


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


 


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


 


(v)                                 the
institution of a proceeding by a fiduciary of any Multiemployer Plan against
the Borrower or any ERISA Affiliate to enforce Section 515 of ERISA, which
proceeding is not dismissed within thirty days from its commencement;


 


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


 


(vii)                           any
event or circumstance exists which may reasonably be expected to constitute
grounds for the incurrence of material liability by the Borrower or any ERISA
Affiliate under Title IV of ERISA or under Sections 412(c)(11) or 412(n) of the
Code with respect to any employee benefit plan;


 


(e)                                  ERISA
Reports.  Promptly after the request
of the Administrative Agent or any Lender, copies of each annual report filed
pursuant to Section 104 of ERISA with respect to each Plan (including, to
the extent required by Section 104 of ERISA, the related financial and
actuarial statements and opinions and other supporting statements,
certifications, schedules and information referred to in Section 103 of
ERISA) and each annual report filed with respect to each Plan under Section 4065
of ERISA; provided, however, that in the case of a Multiemployer Plan, such
annual reports shall be furnished only if they are available to the Borrower or
any ERISA Affiliate;


 


(f)                                    Notice
of Sales or Transfers.  Quarterly, on
each date that a Compliance Certificate is to be delivered pursuant to Section 7.1(e),
a list of all sales or transfers of any Unencumbered Assets that occurred
during such quarter; provided that, if during any fiscal quarter of the
Borrower any sale or transfer of an Unencumbered Asset, which combined with all


 


48





















 


other such
sales or transfers of Unencumbered Assets during such fiscal quarter, would
exceed $100,000,000 in the aggregate, then the Borrower shall promptly provide
such list and a certification of the Chief Financial Officer as to the Borrower’s
compliance with Sections 8.12 and 8.16;


 


(g)                                 Casualties
or Condemnations.  Prompt written
notice of any casualty or condemnation of any Real Property, if such casualty
or condemnation, individually or together with any other casualty or
condemnation of any Real Property in the aggregate, could reasonably be
expected to have a Material Adverse Effect;


 


(h)                                 Environmental
Law Notices.  Prompt written notice
of any order, notice, claim or proceeding received by, or brought against, the
Borrower or any Subsidiary of the Borrower, or with respect to any of the Real
Property, under any Environmental Law, which could reasonably be expected to
have a Material Adverse Effect;


 


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


 


(j)                                     New
Subsidiary Guarantors.  Notice of any
Subsidiary (i) which Borrower is adding as a Subsidiary Guarantor in the
event that the Borrower and the then current Subsidiary Guarantors contribute
less than 80% of Adjusted Net Operating Income (as further described in Section 7.11)
as of the end of any fiscal quarter of Borrower, or (ii) that has become a
guarantor under any existing or future unsecured Indebtedness of Borrower (as
further described in Section 7.11), such notice to be delivered to the
Administrative Agent concurrently with the delivery of the Compliance
Certificate with respect to such quarter;


 


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


 


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


 


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


 


7.3                                 Legal
Existence.


 


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


 


(b)                                 Legal
Existence of Subsidiaries.  Cause
each Subsidiary of the Borrower to maintain its status as a real estate
investment trust, business trust, corporation, limited liability company or
partnership, as the case may be, in good standing in its state of formation and
in each other jurisdiction in which the failure so to do could reasonably be
expected to have a Material


 


49





















 


Adverse Effect; provided, that Borrower may cause any Subsidiary (other
than a Subsidiary Guarantor, except as allowed by Section 8.2) to be
liquidated or dissolved.


 


7.4                                 Taxes.


 


Pay and discharge when due, and cause each Subsidiary of the Borrower
so to do, all Taxes, assessments and governmental charges, license fees and
levies upon, or with respect to, the Borrower or such Subsidiary and all Taxes
upon the income, profits and Property of the Borrower and its Subsidiaries,
which if unpaid, could reasonably be expected to have a Material Adverse
Effect, unless and to the extent only that such Taxes, assessments,
governmental charges, license fees and levies shall be contested in good faith
and by appropriate proceedings diligently conducted by the Borrower or such
Subsidiary and such contest has the effect of staying the collection of any
Lien from any Property of the Borrower or its Subsidiaries arising from such
non payment, and provided that the Borrower shall give the Administrative Agent
prompt notice of such contest and that such reserve or other appropriate
provision as shall be required in accordance with GAAP (as determined by the
Accountants) shall have been made therefor.


 


7.5                                 Insurance.


 


Maintain, and cause each Subsidiary of the Borrower to maintain,
insurance on its Property against such risks and in such amounts as is
customarily maintained by Persons engaged in similar businesses and owning
similar Properties in the same general areas in which the Borrower or the
relevant Subsidiary operates, and file with the Administrative Agent within 10
Business Days after request therefor a detailed list of such insurance then in
effect, stating the names of the carriers thereof, the policy numbers, the
insureds thereunder, the amounts of insurance, dates of expiration thereof, and
the Property and risks covered thereby, together with a certificate of the
Chief Financial Officer certifying that in the opinion of such officer such
insurance complies with the obligations of the Borrower under this Section, and
is in full force and effect.


 


7.6                                 Payment of
Indebtedness and Performance of Obligations.


 


Pay and discharge when due, and cause each Subsidiary of the Borrower
to pay and discharge, all lawful Indebtedness, obligations and claims for
labor, materials and supplies or otherwise which, if unpaid, could reasonably
be expected to have a Material Adverse Effect, unless such Indebtedness shall
be contested in good faith and by appropriate proceedings diligently conducted
by the Borrower or such Subsidiary and such contest has the effect of staying
the collection of any Lien from any Property of the Borrower or its
Subsidiaries arising from such non payment, and provided that the Borrower
shall give the Administrative Agent prompt notice of such contest and that such
reserve or other appropriate provision as shall be required in accordance with
GAAP (as determined by the Accountants) shall have been made therefor.


 


7.7                                 Maintenance of
Property; Environmental Investigations.


 


(a)                                  In
all material respects, at all times, maintain, protect and keep in good repair,
working order and condition (ordinary wear and tear excepted), and cause each


 


50





















 


Subsidiary of
the Borrower so to do, all Property necessary to the operation of the Borrower’s
or such Subsidiary’s business.


 


(b)                                 In
the event that the Administrative Agent shall have a reasonable basis for
believing that Hazardous Substances may be on, at, under or around any Real
Property in violation of any applicable Environmental Law which, individually
or in the aggregate could reasonably be expected to have a Material Adverse
Effect, promptly conduct and complete (at the Borrower’s expense) all
investigations, studies, samplings and testings relative to such Hazardous
Substances as the Administrative Agent may reasonably request.


 


7.8                                 Observance of Legal
Requirements.


 


(a)                                  Observe
and comply in all respects, and cause each Subsidiary of the Borrower so to do,
with all laws, ordinances, orders, judgments, rules, regulations,
certifications, franchises, permits, licenses, directions and requirements of
all Governmental Authorities, which now or at any time hereafter may be
applicable to it, except (i) where noncompliance with any of the foregoing
(individually or in the aggregate) could not reasonably be expected to have a
Material Adverse Effect, or (ii) such thereof as shall be contested in
good faith and by appropriate proceedings diligently conducted by it and such
contest has the effect of staying the collection of any Lien from any Property
of the Borrower or its Subsidiaries arising from such noncompliance, and
provided that the Borrower shall give the Administrative Agent prompt notice of
any contest with respect to clause (ii) to the extent that noncompliance
could reasonably be expected to have a Material Adverse Effect and that such
reserve or other appropriate provision as shall be required in accordance with
GAAP (as determined by the Accountants) shall have been made therefor.


 


(b)                                 Use
and operate all of its facilities and property in compliance with all
Environmental Laws and cause each of its Subsidiaries so to do, and keep all
necessary permits, approvals, certificates, licenses and other authorizations
relating to environmental matters in effect and remain in compliance therewith
and cause each of its Subsidiaries so to do, and handle all Hazardous Materials
in compliance with all applicable Environmental Laws and cause each of its
Subsidiaries so to do, except where noncompliance with any of the foregoing
(individually or in the aggregate) could not reasonably be expected to have a
Material Adverse Effect.


 


7.9                                 Inspection of
Property; Books and Records; Discussions.


 


Keep, and cause its Subsidiaries to keep, proper books of record and
account in which full, true and correct entries in conformity with GAAP and all
requirements of law shall be made of all dealings and transactions in relation
to its and its Subsidiaries’ business and activities and permit representatives
of the Administrative Agent and any Lender during normal business hours and on
reasonable prior notice to visit its offices and its Subsidiaries’ offices, to
inspect any of its Property and any of its Subsidiaries’ Property and to
examine and make copies or abstracts from any of its and its Subsidiaries’
books and records as often as may reasonably be required under the circumstances,
and to discuss the business, operations, prospects, licenses, Property and
financial condition of the Borrower and its Subsidiaries with the officers
thereof and the Accountants.  Borrower
may have a representative accompany Administrative Agent or any Lender on any
such visit, inspection or discussion.


 


51





















 


7.10                           Licenses, Intellectual
Property.


 


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


 


7.11                           Additional Guarantors.


 


At any time after the date hereof, in the event that, during any fiscal
quarter of Borrower, Borrower and the Subsidiary Guarantors do not own
Unencumbered Assets which contribute at least eighty percent (80%) of the
Adjusted Net Operating Income for all Unencumbered Assets of the Borrower and
its Subsidiaries determined on a Consolidated basis in accordance with GAAP,
then, at the time that Borrower is to provide the Compliance Certificate with
respect to such quarter to Administrative Agent, Borrower shall cause such
Subsidiaries of Borrower, as designated by the Borrower and approved by
Administrative Agent (such approval not to be unreasonably withheld), to
execute and deliver a Guaranty to the Administrative Agent, for the benefit of
the Lenders, duly executed by such Subsidiaries (together with certificates and
attachments of a nature similar to those described in Section 5.1(b) and
(c) with respect to such Subsidiaries and an opinion of counsel of a
nature similar to those in the form required pursuant to Section 5.6 (iii))
so that Borrower and the Subsidiary Guarantors will again own Unencumbered
Assets which contribute at least 80% of the Adjusted Net Operating Income for
all Unencumbered Assets of the Borrower and its Subsidiaries on a Consolidated
basis.  Additionally, in the event that
any Subsidiary of the Borrower, whether presently existing or hereafter formed
or acquired, which is not a Subsidiary Guarantor at such time, shall after the
date hereof become a guarantor under any existing or future unsecured Indebtedness
of Borrower, then promptly after the Administrative Agent’s request therefor,
Borrower shall cause such Subsidiary to execute and deliver a Guaranty to the
Administrative Agent, for the benefit of the Lenders, duly executed by such
Subsidiaries (together with certificates and attachments of a nature similar to
those described in Section 5.1(b) and (c) with respect to such
Subsidiaries and an opinion of counsel of a nature similar to those in the form
required pursuant to Section 5.6 (iii)). 
Notwithstanding the foregoing, the foregoing Adjusted Net Operating
Income for all Unencumbered Assets threshold of this Section shall not be
applicable from and after the occurrence of, and during the continuance of, (i) an
Event of Default, or (ii) a reduction by S&P of its Senior Debt Rating
below BBB- or a reduction by Moody’s of its Senior Debt Rating below Baa3 (it
being understood that at such time, the Administrative Agent can require any
Subsidiary of the Borrower (other than an Excluded Subsidiary) which has not
executed a Guaranty to immediately comply with requirements of this Section).


 


7.12                           REIT Status; Operation of
Business.


 


(a)                                  Maintain
its status under §§856 et seq. of the
Code as a REIT.


 


(b)                                 Carry
on all business operations of the Borrower as a self advised, self managed
REIT.


 


52





















 


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


 


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


 


7.13                           More Restrictive
Agreements.


 


Should Borrower or any Subsidiary Guarantor after the date hereof enter
into any agreement or modify any existing agreement (a “More Restrictive
Agreement”) relating to any unsecured Indebtedness of Borrower or any
Subsidiary Guarantor that includes negative covenants or default provisions (or
any other provision which may have the same practical effect) which are more
restrictive against Borrower or any Subsidiary Guarantor than those set forth
in Section 9, Section 9.1(g) or Section 9.1(j) of this
Agreement (the “Original Provisions”), the Borrower shall promptly notify the
Administrative Agent and, if requested by the Required Lenders, the Borrower,
the Administrative Agent, and the Required Lenders shall (and if applicable,
the Borrower shall cause any Subsidiary Guarantor to) promptly amend this Agreement
and the other Loan Documents to include some or all of such more restrictive
provisions as determined by the Required Lenders in their sole discretion.  The Borrower and each Subsidiary Guarantor
agree to deliver to the Administrative Agent copies of any agreements or
documents (or modifications thereof) pertaining to any such Indebtedness as the
Administrative Agent from time to time may request.  Notwithstanding the foregoing, any amendments
to provisions contained in this Agreement and the other Loan Documents made
pursuant to this Section 7.13 shall only be effective for such period of
time as the applicable More Restrictive Agreement is in full force and effect
(or continues to be more restrictive), and upon the termination of the
effectiveness of such More Restrictive Agreement (or upon such More Restrictive
Agreement becoming less restrictive than the corresponding Original Provision),
the provisions affected by such amendment shall return to the applicable
Original Provisions.


 


8.                                       NEGATIVE
COVENANTS.


 


The Borrower agrees that, so long as any Loan remains outstanding and
unpaid or any other amount is owing under any Loan Document to any Lender or
the Administrative Agent, the Borrower shall not, directly or indirectly:


 


8.1                                 Liens.


 


Create, incur, assume or suffer to exist any Lien upon any of its
Property, whether now owned or hereafter acquired, or permit any Subsidiary of
the Borrower so to do, except the following “Permitted Liens”:  (i) Liens for Taxes, assessments or
similar charges incurred in the ordinary course of business which are not
delinquent or the existence of which do not otherwise violate the covenants in Section 7.4,
(ii) Liens in connection with workers’ compensation, unemployment
insurance or other social security obligations (but not ERISA and other types
of similar statutory obligations incurred in the ordinary course of business), (iii) Liens,
deposits or pledges to secure bids, tenders, contracts (other than contracts
for the payment of money), leases,


 


53





















 


statutory obligations, surety or appeal
bonds, performance bonds, completion bonds or other obligations of like nature
arising in the ordinary course of business, (iv) zoning ordinances,
easements, rights of way, use restrictions, exclusive use limitations in any
lease of Real Property, reciprocal easement agreements, minor defects,
irregularities, and other restrictions, charges or encumbrances affecting Real
Property (whether or not recorded), which do not materially adversely affect
the value of such Real Property or materially impair its use for the operation
of the business of the Borrower or such Subsidiary, (v) statutory Liens
arising by operation of law such as mechanics’, materialmen’s, carriers’,
warehousemen’s liens incurred in the ordinary course of business which are not
delinquent or the existence of which do not otherwise violate the covenants in Section 7.6,
(vi) Liens arising out of judgments or decrees which are being contested
in accordance with Section 7.8(a) or the existence of which do not
otherwise violate the covenants in Section 7.8(a) or result in a default
pursuant to Section 9.1(j), (vii) mortgages and related financing
statements and security agreements on Real Property, provided that the
existence of such mortgages, and the Indebtedness secured thereby, does not
cause the Borrower to be in violation of Section 8.15 or 8.16, (viii) Liens
in favor of the Borrower or any Subsidiary Guarantor, provided that the
Indebtedness secured by any such Lien is held by the Borrower or such
Subsidiary Guarantor, (ix) the interests of lessees and lessors under
leases of real or personal property made in the ordinary course of business
which could not reasonably be expected (individually or in the aggregate) to
have a Material Adverse Effect, (x) Liens on the interests of Borrower or any
Subsidiary of Borrower in any Joint Venture (including, without limitation, in
any FIN 46 Entity) or in any Subsidiary of Borrower, provided that the
existence of such Liens, and the Indebtedness secured thereby, does not cause
the Borrower to be in violation of Section 8.15, (xi) Liens under Capital
Leases, provided that the existence of such Capital Lease, and the indebtedness
secured thereby, does not cause the Borrower to be in violation of Section 8.15,
(xii) Liens (A) in existence on the Effective Date created in connection
with the Existing Credit Agreements, or (B) created after the Effective
Date in accordance with the terms of the Existing Credit Agreements as in
effect on the Effective Date, and (xiii) Liens not otherwise permitted by
clauses (i) through (xii) of this Section which do not in the
aggregate exceed, in principal amount, $15,000,000.


 


8.2                                 Merger,
Consolidation and Certain Dispositions of Property.


 


(a)                                  Consolidate
with, be acquired by, or merge into or with any Person, or sell, lease or
otherwise dispose of all or substantially all of its Property (in one
transaction or a series of transactions), or permit any Subsidiary Guarantor so
to do, or liquidate or dissolve, except, subject to the last sentence of this Section 8.2(a),
(i) the merger or consolidation of any Subsidiary Guarantor of the
Borrower into or with the Borrower, (ii) the merger or consolidation of
any two or more Subsidiary Guarantors (including any Subsidiaries that become
Subsidiary Guarantors upon the consummation of such a transaction with a
Subsidiary Guarantor), (iii) the merger or consolidation of the Borrower
or a Subsidiary Guarantor with any other Person, provided that (A) the
Borrower or such Subsidiary Guarantor is the surviving entity in such merger or
consolidation, or contemporaneously with the consummation of such transaction
the surviving entity becomes a Subsidiary Guarantor, (B) the total book
value of the assets of the entity which is merged into or consolidated with the
Borrower or such Subsidiary Guarantor is less than 35% of the total book value
of the assets of the Borrower and its Subsidiaries determined on a Consolidated
basis in accordance with GAAP immediately following such merger or
consolidation, (C) immediately prior to such merger or consolidation the
Borrower


 


54





















 


shall have
provided to the Administrative Agent a Compliance Certificate prepared on a pro
forma basis (and adjusted in the best good faith estimate of the Borrower,
based on the advice of the Accountants, to give effect to such merger or
consolidation) demonstrating that after giving effect to such merger or
consolidation, no Default shall exist with respect to any of the covenants set
forth in Sections 8.12, 8.13, 8.14, 8.15, 8.16, 8.17 and 8.18, and (D) after
giving effect to such merger or consolidation, no Event of Default shall then
exist, or (iv)  the merger or consolidation of a Subsidiary Guarantor with
any other Person in which such other Person shall be the surviving entity, the
liquidation or dissolution of a Subsidiary Guarantor, or the sale, lease or
other disposition by a Subsidiary Guarantor of all or substantially all of its
Property, so long as, after giving effect to such transaction, (x) no Default
or Event of Default shall then exist, (y) such transaction does not violate Section 8.2(b) and
(z) Borrower and/or the Subsidiary Guarantors (including any new Subsidiary
Guarantors provided by the Borrower pursuant to Section 7.11 in connection
with such transaction) own Unencumbered Assets which contribute at least 80% of
the Adjusted Net Operating Income for all Unencumbered Assets of the Borrower
and its Subsidiaries determined on a Consolidated basis in accordance with
GAAP.  In the event that a Subsidiary
Guarantor shall engage in a transaction permitted by Section 8.2(a)(iv) (other
than a lease of all or substantially all of its assets), then such Subsidiary
Guarantor shall be released by Administrative Agent from liability under the
Subsidiary Guaranty, provided that the Borrower shall deliver to Administrative
Agent evidence satisfactory to Administrative Agent that (X) the Borrower will
be in compliance with all covenants of this Agreement after giving effect to
such transaction, (Y) if such transaction involves the sale or disposition by a
Subsidiary Guarantor of all or substantially all of its Property, such
Subsidiary Guarantor shall be legally dissolved after its release from the
Subsidiary Guaranty (provided further that a Subsidiary Guarantor that has
transferred substantially all of its assets may be released from its liability
under the Subsidiary Guaranty without dissolving upon the approval of the
Administrative Agent, which approval may be withheld in its sole discretion)
and (Z) the net cash proceeds from such sale or disposition are being
distributed to Borrower as part of such dissolution.  Except as set forth in the following sentence,
nothing in this Section 8.2(a) shall in any way restrict the
activities of a Subsidiary that is not a Subsidiary Guarantor.  Notwithstanding anything contained herein to
the contrary, the Borrower shall not, directly or indirectly, permit any merger
or consolidation of any Subsidiary which owns any Unencumbered Assets with CA
New Plan Fixed Rate Partnership, L.P., any DownREIT Partnership or any
Subsidiary of a DownREIT Partnership.


 


(b)                                 Except
as expressly permitted by Section 8.2(a), sell, transfer, contribute,
master lease or dispose of any of its Property, either directly or indirectly,
or permit any Subsidiary Guarantor so to do, except, subject to the last
sentence of this Section 8.2(b), that if at the time thereof and
immediately after giving effect thereto, no Default shall have occurred and be
continuing, (i) any Subsidiary Guarantor may sell, transfer, contribute,
master lease or otherwise dispose of its assets to the Borrower or to any other
Subsidiary Guarantor, (ii) the Borrower may sell, transfer, contribute,
master lease or otherwise dispose of its assets to any Subsidiary Guarantor, (iii) in
connection with any transaction pursuant to which a Real Property asset of
Borrower or any Subsidiary Guarantor is or will be encumbered with a mortgage
(as permitted under Section 8.1(vii)), the Borrower or any Subsidiary
Guarantor may transfer such asset to any Subsidiary, (iv) Borrower or any
Subsidiary Guarantor of Borrower may sell, transfer, contribute or dispose of
worn-out or obsolete Property, (v) Borrower or any Subsidiary Guarantor
may sell, transfer, contribute, master lease or otherwise dispose of any of its
assets to


 


55





















 


any Subsidiary, so long as, after giving effect to such transaction,
Borrower and/or the Subsidiary Guarantors (including any new Subsidiary
Guarantors provided by the Borrower pursuant to Section 7.11 in connection
with such transaction) own Unencumbered Assets which contribute at least 80% of
the Adjusted Net Operating Income for all Unencumbered Assets of the Borrower
and its Subsidiaries determined on a Consolidated basis in accordance with
GAAP, and (vi) the Borrower or any Subsidiary of the Borrower may sell,
transfer, contribute, master lease or otherwise dispose of Property in an arm’s
length transaction (or, if the transaction involves an Affiliate of the
Borrower, if the transaction complies with Section 8.8), including,
without limitation, a disposition of Property pursuant to a merger or
consolidation (so long as such merger or consolidation is not prohibited by Section 8.2(a)),
provided, however, that for any fiscal year of the Borrower, any sale,
transfer, master lease, contribution or other disposition of Property in
reliance on this clause (vi) which when combined with all other sales,
transfers, master leases, contributions or dispositions of Property in reliance
on this clause (vi) made in such fiscal year shall not exceed 25% of the
total book value of all Property of the Borrower and its Subsidiaries
determined as of the date of each such transaction.  Except as set forth in the following sentence,
nothing in this Section 8.2(b) (other than clause (vi)) shall in any
way restrict the activities of a Subsidiary that is not a Subsidiary
Guarantor.  Notwithstanding anything
contained herein to the contrary, neither the Borrower nor any Subsidiary of
the Borrower shall, directly, or indirectly, sell, transfer, contribute, master
lease or dispose of any Unencumbered Assets to CA New Plan Fixed Rate
Partnership, L.P., any DownREIT Partnership or any Subsidiary of a DownREIT
Partnership other than in connection with any transaction which is otherwise
permitted pursuant to this Section 8.2(b) pursuant to which such
Unencumbered Asset will no longer constitute an Unencumbered Asset as a result
of such transaction.


 


8.3                                 Investments, Loans,
Etc.


 


At any time, purchase or otherwise acquire, hold or invest in the Stock
of, or any other interest in, any Person, or make any loan or advance to, or
enter into any arrangement for the purpose of acquiring, holding or investing
in or loaning or advancing to, or make any other investment, whether by way of
capital contribution, time deposit or otherwise, in or with any Person, or
permit any Subsidiary of the Borrower so to do, (all of which are sometimes
referred to herein as “Investments”, it being understood, without
limitation, that the provision by Borrower or any Subsidiary of guarantees
and/or letters of credit to other Persons shall not constitute Investments but
shall instead constitute Indebtedness) except the following (to the extent that
maintaining any thereof would not at any time violate the requirements of Section 856(c) of
the Code):


 


(a)                                  demand
deposits, certificates of deposit, bankers acceptances and domestic and
eurodollar time deposits with any Lender, or any other commercial bank, trust
company or national banking association incorporated under the laws of the
United States or any State thereof and having undivided capital, surplus and
undivided profits exceeding $500,000,000 and a long term debt rating of A or
A2, as determined, respectively, by S&P and Moody’s;


 


(b)                                 short
term direct obligations of the United States of America or agencies thereof
whose obligations are guaranteed by the United States of America;


 


56










 













 


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


 


(d)                                 mortgage
backed securities guaranteed by the Governmental National Mortgage Association,
the Federal National Mortgage Association or the Federal Home Loan Mortgage
Corporation and other mortgage backed bonds which at the time of purchase are
rated by S&P or Moody’s at not less than “Aa” or “AA,” respectively;


 


(e)                                  repurchase
agreements having a term not greater than 90 days and fully secured by
securities described in the foregoing paragraph (b) or (d) with banks
described in the foregoing paragraph (a) or with financial institutions or
other corporations having total assets in excess of $50,000,000;


 


(f)                                    shares
of “money market funds” registered with the SEC under the Investment Company
Act of 1940 which maintain a level per share value, invest principally in the
investments described in one or more of the foregoing paragraphs (a) through
(e) and have total assets of in excess of $50,000,000;


 


(g)                                 Real
Property;


 


(h)                                 Subject
to Section 8.17, equity investments in any Person (other than Subsidiaries)
and Notes Receivable investments;


 


(i)                                     Subject
to Section 8.17, Investments (debt or equity) in Subsidiaries of the
Borrower;


 


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


 


(k)                                  Hedging
Agreements made in connection with any Indebtedness;


 


(l)                                     repurchases
of any common or preferred stock or other equity interests (or securities
convertible into such interests) in the Borrower that have been previously
issued by the Borrower which do not exceed, in any calendar year, (1) 10%
of the aggregate outstanding shares of common and preferred stock and other
equity interests in Borrower as of the date hereof, in any combination, plus (2) 10%
of the aggregate of any additional shares of common and preferred stock and
other equity interests in Borrower issued after the date hereof, in any
combination;


 


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


 


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


 


57





















 


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


 


(p)                                 Capital
Leases; and


 


(q)                                 subject
to Section 8.17, any other Investments not included in paragraphs (a) through
(p) deemed appropriate by the Borrower (provided that in no event shall
Investments made in reliance upon the exception set forth in this paragraph (q)
exceed $75,000,000 in any fiscal year of Borrower).


 


8.4                                 Business
Changes.


 


Change in any material respect the nature of the business of the Borrower
or its Subsidiaries as conducted on the Effective Date.


 


8.5                                 Amendments
to Organizational Documents.


 


Amend or otherwise modify its corporate charter or by laws in any way
(other than in connection with the issuance or classification of preferred
stock of the Borrower) which would adversely affect the interests of the
Administrative Agent and the Lenders under any of the Loan Documents, or permit
any Subsidiary of the Borrower to amend its organizational documents in a
manner which could have the same result.


 


8.6                                 [Intentionally
Omitted.]


 


8.7                                 Sale
and Leaseback.


 


Enter into any arrangement with any Person providing for the leasing by
it of Property which has been or is to be sold or transferred by it to such
Person or to any other Person to whom funds have been or are to be advanced by
such Person on the security of such Property or its rental obligations, or
permit any Subsidiary of the Borrower so to do, except for sale and leasing
transactions described herein for which the combined selling price of all
Property subject to all such transactions does not exceed $100,000,000 in any
fiscal year of Borrower.


 


8.8                                 Transactions
with Affiliates.


 


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


 


8.9                                 Issuance
of Additional Capital Stock by Subsidiary Guarantors.


 


Permit any Subsidiary Guarantor to issue any additional Stock or other
equity interest of such Subsidiary Guarantor, other than the issuance of
partnership or limited liability company


 


58





















 


units in a DownREIT Partnership which is a
Subsidiary Guarantor, provided that such units are issued in consideration of
the contribution to the DownREIT Partnership of assets qualifying as “real
estate assets” under Section 856(c) of the Code.


 


8.10                           Hedging
Agreements.


 


Enter into, or permit any of its Subsidiaries to enter into, any
Hedging Agreement, other than Hedging Agreements entered into in the ordinary
course of business to hedge or mitigate interest rate risks to which the
Borrower or any Subsidiary of the Borrower is exposed in the conduct of its
business or the management of its liabilities.


 


8.11                           Restricted
Payments.


 


Make Restricted Payments, except that:


 


(i)                                     except
as set forth in clause (ii) below, the Borrower may declare and pay
dividends payable with respect to its equity securities in any fiscal quarter
of the Borrower if after giving effect to such dividend, such dividend, when
added to the amount of all other such dividends paid in the same fiscal quarter
and the preceding three (3) fiscal quarters, would not exceed the greater
of (A) ninety-five percent (95%) of its Funds from Operations for the four
fiscal quarters ending prior to the quarter in which such dividend is paid or (B) the
minimum amount of such dividends required under the Code to enable the Borrower
to continue to maintain its status under the Code as a REIT, as evidenced (in
the case of clause (B)) by a certification of Chief Financial Officer
containing calculations in reasonable detail satisfactory in form and substance
to Administrative Agent;


 


(ii)                                  if
an Event of Default under Section 9.1(a) or (b) has occurred and
is continuing, the Borrower may only declare and pay dividends with respect to
its equity securities which shall not exceed the minimum amount of such
dividends required under the Code to enable the Borrower to continue to
maintain its status under the Code as a REIT, as evidenced by a certification
of Chief Financial Officer containing calculations in reasonable detail
reasonably satisfactory in form and substance to Administrative Agent;


 


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


 


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


 


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


 


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


 


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8.12                           Unencumbered
Assets Coverage Ratio.


 


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


 


8.13                           Fixed
Charge Coverage Ratio.


 


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


 


8.14                           Minimum
Tangible Net Worth.


 


Permit the Tangible Net Worth of the Borrower and its Subsidiaries
determined on a Consolidated basis in accordance with GAAP at any time to be
less than the sum of (i) $1,278,400,000, plus (ii) 80% of the
aggregate net proceeds received by the Borrower from and after the Effective
Date in connection with the issuance of any capital stock of the Borrower.


 


8.15                           Maximum
Total Indebtedness; Maximum Secured Indebtedness.


 


(a)                                  Permit
at any time Consolidated Total Indebtedness to be more than 57.5% of Adjusted
Consolidated Total Assets at such time; or


 


(b)                                 Permit
at any time the portion of the Consolidated Total Indebtedness (which shall
exclude Indebtedness of FIN 46 Entities and other Joint Ventures that are not
Subsidiaries) consisting of Consolidated secured Indebtedness of Borrower and
its Subsidiaries at such time to exceed 40% of Adjusted Consolidated Total
Assets at such time.


 


8.16                           Unsecured
Indebtedness to Unencumbered Assets Ratio.


 


Permit at any time the portion of the Consolidated Total Indebtedness
(which shall exclude Indebtedness of FIN 46 Entities and other Joint Ventures
that are not Subsidiaries) consisting of Consolidated unsecured Indebtedness of
the Borrower and its Subsidiaries at such time to be more than 55% of
Unencumbered Asset Value at such time.


 


8.17                           Maximum
Book Value of Ancillary Assets.


 


Permit the book value of the Ancillary Assets at any time to be more than
25% of the Adjusted Consolidated Total Assets of the Borrower and its
Subsidiaries determined on a Consolidated basis in accordance with GAAP at such
time.  For purposes of this Section 8.17,
the book value of any Ancillary Asset not owned 100%, directly or indirectly,
by the Borrower or any of its Subsidiaries shall be adjusted by multiplying the
same by the Borrower’s Interest in such Ancillary Asset during the fiscal
quarter of the Borrower ending as of any date of determination of such book
value.


 


8.18                           Development
Activity.


 


Engage, directly or indirectly, or permit any Subsidiary or Joint
Venture to engage, in the ground-up development of Real Property except for the
ground-up development of New Construction Assets to be used principally as a
retail shopping center, provided that the book value of New Construction Assets
owned by the Borrower and its Subsidiaries and Joint Ventures shall not at any
time exceed fifteen percent (15%) of the Borrower’s Adjusted Consolidated Total
Assets.  For purposes of this Section 8.18,
the book value of any New


 


60





















 


Construction Assets not owned 100%, directly
or indirectly, by the Borrower or any of its Subsidiaries shall be adjusted by
multiplying the same by the Borrower’s Interest in such New Construction Asset
during the fiscal quarter of the Borrower ending as of any date of
determination of such book value.


 


9.                                       DEFAULT.


 


9.1                                 Events
of Default.


 


The following shall each constitute an “Event of Default” hereunder:


 


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


 


(b)                                 The
failure of the Borrower to pay any installment of interest or any other
expenses or other charges payable under any Loan Document within five Business
Days of the date when due and payable; or


 


(c)                                  The
use of the proceeds of any Loan in a manner inconsistent with or in violation
of Section 2.13; or


 


(d)                                 The
failure of the Borrower to observe or perform any covenant or agreement contained
in Section 7.12(a), 7.12(b), or 8 (other than Sections 8.1, 8.3, 8.5, 8.7,
8.8 and 8.10 as to which the provisions of paragraph (e) below shall
apply); or


 


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


 


(f)                                    Any
representation or warranty of the Borrower or any of its Subsidiaries (or of
any officer of such Person on its behalf) made in any Loan Document to which it
is a party or in any certificate, report, opinion (other than an opinion of
counsel) or other document delivered or to be delivered pursuant thereto, shall
prove to have been incorrect or misleading (whether because of misstatement or
omission) in any material respect when made; or


 


(g)                                 Any
obligation of the Borrower (other than its obligations under the Notes) or any
Subsidiary of the Borrower, whether as principal, guarantor, surety or other
obligor, for the payment of any Indebtedness shall (i) become or shall be
declared to be due and payable prior to the expressed maturity thereof, or (ii) shall
not be paid when due or within any grace period for the payment thereof, or (iii) shall
be subject, by the holder of the obligation evidencing such Indebtedness, to
acceleration (after the expiration of any applicable notice and cure periods)
prior to the expressed maturity thereof, and the sum of all such Indebtedness
which is the subject of paragraphs (i) through (iii) inclusive
exceeds (A) at any time, in the case of


 


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Indebtedness
other than Non Recourse Indebtedness, $15,000,000, and (B) in any calendar
year, in the case of Non Recourse Indebtedness, $50,000,000 in the aggregate
during such year;  or


 


(h)                                 The
Borrower or any Subsidiary of the Borrower shall (i) suspend or
discontinue its business (except as permitted by Section 7.3 or 8.2), (ii) make
an assignment for the benefit of creditors, (iii) generally not be paying
its debts as such debts become due, (iv) admit in writing its inability to
pay its debts as they become due, (v) file a voluntary petition in
bankruptcy, (vi) become insolvent (however such insolvency shall be
evidenced), (vii) file any petition or answer seeking for itself any
reorganization, arrangement, composition, readjustment of debt, liquidation or
dissolution or similar relief under any present or future statute, law or
regulation of any jurisdiction, (viii) petition or apply to any tribunal
for any receiver, custodian or any trustee for any substantial part of its
Property, (ix) be the subject of any such proceeding filed against it
which remains undismissed for a period of 60 days, (x) file any answer
admitting or not contesting the material allegations of any such petition filed
against it or any order, judgment or decree approving such petition in any such
proceeding, (xi) seek, approve, consent to, or acquiesce in any such
proceeding, or in the appointment of any trustee, receiver, custodian,
liquidator, or fiscal agent for it, or any substantial part of its Property, or
an order is entered appointing any such trustee, receiver, custodian,
liquidator or fiscal agent and such order remains in effect for 60 days, or
(xii) take any formal action for the purpose of effecting any of the foregoing;
provided that the events described in this Section 9.1(h) as to any
Subsidiary of the Borrower that is not a Subsidiary Guarantor shall not
constitute an Event of Default unless the aggregate book value of Borrower’s
direct or indirect equity Investment in all such Subsidiaries exceeds
$50,000,000; or


 


(i)                                     An
order for relief is entered under the United States bankruptcy laws or any
other decree or order is entered by a court having jurisdiction (i) adjudging
the Borrower or any Subsidiary bankrupt or insolvent, (ii) approving as
properly filed a petition seeking reorganization, liquidation, arrangement,
adjustment or composition of or in respect of the Borrower or any Subsidiary
under the United States bankruptcy laws or any other applicable Federal or
state law, (iii) appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator (or other similar official) of the Borrower or any
Subsidiary or of any substantial part of the Property thereof, or (iv) ordering
the winding up or liquidation of the affairs of the Borrower or any Subsidiary,
and any such decree or order continues unstayed and in effect for a period of
60 days; provided that the events described in this Section 9.1(i) as
to any Subsidiary of the Borrower that is not a Subsidiary Guarantor shall not
constitute an Event of Default unless the aggregate book value of Borrower’s
direct or indirect equity Investment in all such Subsidiaries exceeds
$50,000,000; or


 


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


 


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


 


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(l)                                     An
event or condition specified in Section 7.2(d) shall occur or exist
with respect to any Plan or Multiemployer Plan and, as a result of such event
or condition, together with all other such events or conditions, the Borrower
shall be reasonably likely to incur a liability to a Plan, a Multiemployer
Plan, the PBGC, or any combination thereof, equal to or in excess of
$15,000,000 individually or in the aggregate; or


 


(m)                               There
shall occur a Change of Control; or


 


(n)                                 If
any Loan Document (i) is determined by any court or Governmental Authority
to be illegal, invalid or unenforceable in accordance with its terms, or (ii) shall
be canceled, terminated, revoked or rescinded other than in accordance with its
terms or with the written consent or approval of the Lenders; or


 


(o)                                 (i) Any
Subsidiary Guarantor shall fail to comply in any material respect with any covenant
made by it in the Guaranty or if at any time any representation or warranty
made by any Subsidiary Guarantor in the Guaranty or in any other document,
statement or writing made to the Administrative Agent, the Lead Arrangers or
the Lenders shall prove to have been incorrect or misleading in any material
respect when made, or (ii) if a default by any Subsidiary Guarantor shall
occur under the Guaranty after the expiration of any applicable notice and
grace period; or (iii) if any Subsidiary Guarantor shall revoke or attempt
to revoke, contest, commence any action or raise any defense (other than the
defense of payment) against its obligations under the Guaranty; or


 


(p)                                 There
shall occur and be continuing an Event of Default under and as defined in either
of the Existing Credit Agreements.


 


Upon the occurrence of an Event of Default or at any time thereafter
during the continuance thereof, (a) if such event is an Event of Default
specified in clause (h) or (i) above, the Loans, all accrued and
unpaid interest thereon, and all other amounts owing under the Loan Documents
shall immediately become due and payable, and the Administrative Agent may, and
upon the direction of the Required Lenders shall, exercise any and all remedies
and other rights provided in the Loan Documents, and (b) if such event is
any other Event of Default, with the consent of the Required Lenders, the
Administrative Agent may, and upon the direction of the Required Lenders shall,
by notice of default to the Borrower, declare the Loans, all accrued and unpaid
interest thereon and all other amounts owing under the Loan Documents to be due
and payable forthwith, whereupon the same shall immediately become due and
payable, and the Administrative Agent may, and upon the direction of the Required
Lenders shall, exercise any and all remedies and other rights provided pursuant
to the Loan Documents.  Except as
otherwise provided in this Section, presentment, demand, protest and all other
notices of any kind are hereby expressly waived.  The Borrower hereby further expressly waives
and covenants not to assert any appraisement, valuation, stay, extension,
redemption or similar laws, now or at any time hereafter in force which might
delay, prevent or otherwise impede the performance or enforcement of any Loan
Document.


 


In the event that the Notes shall have been declared due and payable
pursuant to the provisions of this Section, any funds received by the
Administrative Agent and the Lenders from or on behalf of the Borrower shall be
applied by the Administrative Agent and the Lenders in


 


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liquidation of the Loans and the obligations
of the Borrower under the Loan Documents in the following manner and
order:  (i) first, to the payment of
interest on and then the principal portion of any Loans which the
Administrative Agent may have advanced on behalf of any Lender for which the
Administrative Agent has not then been reimbursed by such Lender or the
Borrower; (ii) second, to reimburse the Administrative Agent and the
Lenders for any expenses due from the Borrower pursuant to the provisions of Section 11.5;
(iii) third, to the payment of all other fees, expenses and amounts due
under the Loan Documents (other than principal and interest on the Notes); provided,
however, that distributions in respect of such fees and expenses due to the
Administrative Agent from the Borrower shall be made pari passu with respect to
the payment of any other fees, expenses or amounts due the Lenders from the
Borrower; (iv) fourth, to the payment of interest due on the Notes; (v) fifth,
to the payment of principal outstanding on the Notes; and (vi) sixth, to
the payment of any other amounts owing to the Administrative Agent, the Lead
Arrangers and the Lenders under any Loan Document or other document or
agreement entered into in connection with the transactions contemplated
thereby.


 


10.                                 THE
AGENT.


 


10.1                           Appointment
and Authority.


 


Each of the Lenders hereby irrevocably appoints CNAI to act on its
behalf as the Administrative Agent hereunder and under the other Loan Documents
and authorizes the Administrative Agent to take such actions on its behalf and
to exercise such powers as are delegated to the Administrative Agent by the
terms hereof or thereof, together with such actions and powers as are
reasonably incidental thereto.  The
provisions of this Article are solely for the benefit of the
Administrative Agent and the Lenders, and neither the Borrower nor any
Subsidiary Guarantor shall have rights as a third party beneficiary of any of
such provisions.


 


10.2                           Rights
as a Lender.


 


The Person serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent and the term “Lender”
or “Lenders” shall, unless otherwise expressly indicated or unless the context
otherwise requires, include the Person serving as the Administrative Agent
hereunder in its individual capacity. 
Such Person and its Affiliates may accept deposits from, lend money to,
act as the financial advisor or in any other advisory capacity for and
generally engage in any kind of business with the Borrower or any Subsidiary or
other Affiliate thereof as if such Person were not the Administrative Agent
hereunder and without any duty to account therefor to the Lenders.


 


10.3                           Exculpatory
Provisions.


 


The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein and in the other Loan Documents.  Without limiting the generality of the
foregoing, the Administrative Agent:


 


(a)                                  shall
not be subject to any fiduciary or other implied duties, regardless of whether
a Default has occurred and is continuing;


 


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(b)                                 shall
not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents that the Administrative
Agent is required to exercise as directed in writing by the Required Lenders
(or such other number or percentage of the Lenders as shall be expressly
provided for herein or in the other Loan Documents), provided that the
Administrative Agent shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose the Administrative Agent to
liability or that is contrary to any Loan Document or applicable law; and


 


(c)                                  shall
not, except as expressly set forth herein and in the other Loan Documents, have
any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrower or any of its Affiliates that is
communicated to or obtained by the Person serving as the Administrative Agent
or any of its Affiliates in any capacity.


 


The Administrative Agent shall not be liable for any action taken or
not taken by it (i) with the consent or at the request of the Required
Lenders (or such other number or percentage of the Lenders as shall be
necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 11.1 and 9.1) or (ii) in
the absence of its own gross negligence or willful misconduct.


 


The Administrative Agent shall not be responsible for or have any duty
to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance
or observance of any of the covenants, agreements or other terms or conditions
set forth herein or therein or the occurrence of any Default, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement, any
other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article V or elsewhere herein,
other than to confirm receipt of items expressly required to be delivered to
the Administrative Agent.


 


10.4                           Reliance
by Administrative Agent.


 


The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying in good faith upon, any notice, request,
certificate, consent, statement, instrument, document or other writing
(including any electronic message, Internet or intranet website posting or
other distribution) believed by it to be genuine and to have been signed, sent
or otherwise authenticated by the proper Person.  The Administrative Agent also may rely upon
any statement made to it orally or by telephone and believed by it to have been
made by the proper Person, and shall not incur any liability for relying
thereon.  In determining compliance with
any condition hereunder to the making of a Loan, that by its terms must be
fulfilled to the satisfaction of a Lender, the Administrative Agent may presume
that such condition is satisfactory to such Lender unless the Administrative
Agent shall have received notice to the contrary from such Lender prior to the
making of such Loan.  The Administrative
Agent may consult with legal counsel, independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.


 


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10.5                           Notice
of Default.  The Administrative Agent
shall not be deemed to have knowledge or notice of the occurrence of any
Default or Event of Default, except with respect to defaults in the payment of
principal, interest and fees required to be paid to the Administrative Agent
for the account of the Lenders, unless the Administrative Agent has received
written notice thereof from a Lender or the Borrower.  In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall promptly give notice
thereof to the Lenders.  The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders,
provided, however, that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem to be in the best
interests of the Lenders.


 


10.6                           Delegation
of Duties.


 


The Administrative Agent may perform any and all of its duties and
exercise its rights and powers hereunder or under any other Loan Document by or
through its Related Parties.  The
exculpatory provisions of this Article shall apply to any such Related
Parties of the Administrative Agent, and shall apply to any such Related
Parties’ activities in connection with the syndication of the loans provided
for herein as well as activities as Administrative Agent.


 


10.7                           Indemnification.  Each Lender agrees to indemnify and reimburse
the Administrative Agent in its capacity as such (to the extent not promptly
reimbursed by the Borrower and without limiting the obligation of the Borrower
to do so), pro rata according to its Commitment, from and against any and all
liabilities, obligations, claims, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever
including, without limitation, any amounts paid to the Lenders (through the
Administrative Agent) by the Borrower, any Subsidiary Guarantor pursuant to the
terms of the Loan Documents, that are subsequently rescinded or avoided, or
must otherwise be restored or returned) which may at any time (including,
without limitation, at any time following the payment of the Notes) be imposed
on, incurred by or asserted against the Administrative Agent in any way
relating to or arising out of the Loan Documents or any other documents
contemplated by or referred to therein or the transactions contemplated thereby
or any action taken or omitted to be taken by the Administrative Agent under or
in connection with any of the foregoing; provided, however, that no Lender
shall be liable for the payment of any portion of such liabilities,
obligations, claims, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements to the extent resulting solely from the gross
negligence or willful misconduct of the Administrative Agent.  The agreements in this Section shall
survive the payment of all amounts payable under the Loan Documents.


 


10.8                           Successor
Administrative Agent.


 


The Administrative Agent may at any time give notice of its resignation
to the Lenders and the Borrower.  Upon
receipt of any such notice of resignation, the Required Lenders shall have the
right, in consultation with the Borrower, to appoint a successor, which shall
be a bank with an office in the United States, or an Affiliate of any such bank
with an office in the United States.  If
no such successor shall have been so appointed by the Required Lenders and
shall


 


66





















 


have accepted such appointment in writing
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent shall, in consultation with
the Borrower, appoint a successor Administrative Agent on behalf of the Lenders
prior to the end of the 60th day from such notice from among any of the Lenders
who shall have at such time agreed to act as the successor Administrative Agent
and shall have at such time a Commitment of at least $10,000,000 (an “Approved
Successor”).  If no Lender has a
Commitment of at least $10,000,000 (or no Lender whose Commitment is at least
$10,000,000 shall agree to accept such appointment), then the retiring
Administrative Agent shall, in consultation with the Borrower (unless an Event
of Default has occurred and is continuing), appoint any other Lender or any
other commercial bank organized under the laws of the United States of America
or any State thereof and having a combined capital and surplus of at least
$100,000,000 as a successor Administrative Agent.  Any appointment of a successor Administrative
Agent shall be subject to the approval of the Borrower, which approval shall
not be unreasonably withheld or delayed, and shall be given in any event prior
to the end of the 60th day from the date of the retiring Administrative Agent’s
notice of removal or resignation, provided that during any period in which
there exists and is continuing an Event of Default, no consultation with, or
approval from, the Borrower with respect to the appointment of an Approved
Successor shall be required.  Upon the
acceptance of an appointment as Administrative Agent hereunder by a successor
Administrative Agent and any required approval of such successor Administrative
Agent by the Borrower in accordance with the terms of this Section, such
successor Administrative Agent shall thereupon succeed to and become vested
with all of the rights, powers, privileges and duties of the retiring (or
retired) Administrative Agent, and the retiring Administrative Agent shall be
discharged from all of its duties and obligations as Administrative Agent
hereunder or under the other Loan Documents (if not already discharged
therefrom as provided above in this Section). 
The fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. 
The Supermajority Lenders may remove the Administrative Agent from its
capacity as administrative agent in the event of the Administrative Agent’s
willful misconduct or gross negligence. 
Such removal shall be effective upon appointment and acceptance of a
successor Administrative Agent selected by the Supermajority Lenders.  Any successor Administrative Agent must
satisfy the conditions set forth in this Section 10.8 (including, without
limitation, the consultation with, and approval from, the Borrower, to the
extent required under this Section 10.8). 
Upon the acceptance of any appointment as Administrative Agent hereunder
by a successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all rights, powers, privileges and
duties of the removed Administrative Agent, and the removed Administrative
Agent shall be discharged from all further duties and obligations as Administrative
Agent under this Agreement and the Loan Documents, provided that the
Administrative Agent shall remain liable to the extent provided in the Loan
Documents for its actions and omissions occurring prior to such removal.  The Commitment of the Lender which is acting
as Administrative Agent shall not be taken into account in the calculation of
Supermajority Lenders for the purposes of removing Administrative Agent in the
event of the Administrative Agent’s willful misconduct or gross
negligence.  After the retiring or
removed Administrative Agent’s resignation or removal hereunder and under the
other Loan Documents, the provisions of this Article and Sections 11.5 and
11.11 shall continue in effect for the benefit of such retiring or removed
Administrative Agent, its sub agents and their respective Related


 


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Parties in respect of any actions taken or
omitted to be taken by any of them while the retiring or removed Administrative
Agent was acting as Administrative Agent.


 


10.9                           Non-Reliance
on Administrative Agent and Other Lenders.


 


Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender or any of their
Related Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement.  Each Lender also acknowledges
that it will, independently and without reliance upon the Administrative Agent
or any other Lender or any of their Related Parties and based on such documents
and information as it shall from time to time deem appropriate, continue to
make its own decisions in taking or not taking action under or based upon this
Agreement, any other Loan Document or any related agreement or any document
furnished hereunder or thereunder.


 


10.10                     No Other
Duties, Etc.


 


Anything herein to the contrary notwithstanding, none of the Book
Managers, Lead Arrangers or Syndication Agent listed on the cover page hereof
shall have any powers, duties or responsibilities under this Agreement or any
of the other Loan Documents.


 


10.11                     Administrative
Agent May File Proofs of Claim.


 


In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Borrower or any Subsidiary Guarantor, the
Administrative Agent (irrespective of whether the principal of any Loan shall
then be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand on
the Borrower) shall be entitled and empowered, by intervention in such
proceeding or otherwise:


 


(a)                                  to
file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans and all other obligations of the Borrower
and the Subsidiary Guarantors under the Loan Documents that are owing and
unpaid and to file such other documents as may be necessary or advisable in order
to have the claims of the Lenders and the Administrative Agent (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Lenders and the Administrative Agent and their respective agents and
counsel and all other amounts due the Lenders and the Administrative Agent
under Sections 3.1, 11.5 and 11.11) allowed in such judicial proceeding; and


 


(b)                                 to
collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such
judicial proceeding is hereby authorized by each Lender to make such payments
to the Administrative Agent and, in the event that the Administrative Agent
shall consent to the making of such payments directly to the Lenders, to pay to
the Administrative Agent any amount due for the reasonable compensation,
expenses, disbursements and advances of the Administrative Agent and its agents
and counsel, and any other amounts due the Administrative Agent under
Sections  3.1, 11.5 and 11.11.


 


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Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or adopt, on behalf
of any Lender, any plan of reorganization, arrangement, adjustment or
composition affecting the obligations of the Borrower and the Subsidiary
Guarantors under the Loan Documents or the rights of any Lender or to authorize
the Administrative Agent to vote in respect of the claim of any Lender in any
such proceeding.


 


10.12                     Guaranty
Matters.  The Lenders irrevocably
authorize the Administrative Agent, at its option and in its discretion, to
release any Subsidiary Guarantor from its obligations under the Guaranty if (i) such
Person ceases to be a Subsidiary as a result of a transaction permitted
hereunder or (ii) such release is permitted pursuant to and in accordance
with Section 8.2.


 


Upon request by the Administrative Agent at any time, the Required
Lenders will confirm in writing the Administrative Agent’s authority to release
any Subsidiary Guarantor from its obligations under the Guaranty pursuant to
this Section 10.12.


 


11.                                 OTHER
PROVISIONS.


 


11.1                           Amendments
and Waivers.


 


With the written consent of the Required Lenders, the Administrative
Agent and the Borrower may, from time to time, enter into written amendments,
supplements or modifications of the Loan Documents and, with the consent of the
Required Lenders, the Administrative Agent on behalf of the Lenders may execute
and deliver to any such parties a written instrument waiving or a consent to a
departure from, on such terms and conditions as the Administrative Agent may
specify in such instrument, any of the requirements of the Loan Documents or
any Default or Event of Default and its consequences; provided, however, that
no such amendment, supplement, modification, waiver or consent shall, without
the consent of all of the Lenders:  (i) increase
the Commitment of any Lender or the Total Commitment Amount; (ii) extend
the Maturity Date; (iii) decrease the rate, or extend the time of payment,
of interest of, or change or forgive the principal amount of, or change the
requirement that payments and prepayments of principal on, and payments of
interest on, the Notes be made pro rata to the Lenders on the basis of the
outstanding principal amount of the Loans, (iv) amend the definitions of “Required
Lender” or “Supermajority Lenders”, (v) amend any provision of this
Agreement or the Loan Documents which requires the approval of all of the
Lenders, the Supermajority Lenders or the Required Lenders to require a lesser
number of Lenders to approve such action, (vi) release any Subsidiary
Guarantor from its obligations under a Guaranty except as provided in Section 8.2,
or (vii) change the provisions of Section 3.1 or 11.1; and provided
further that no such amendment, supplement, modification, waiver or consent
shall amend, modify, waive or consent to a departure from any provision of Section 11
or otherwise change any of the rights or obligations of the Administrative
Agent under the Loan Documents without the written consent of the
Administrative Agent.  The Administrative
Agent shall cause a copy of each written request for such an amendment, supplement
or modification delivered by the Borrower to it to be delivered to each
Lender.  Any such amendment, supplement,
modification, waiver or consent shall apply equally to each of the Lenders and
shall be binding upon the parties to the applicable agreement, the Lenders, the
Administrative Agent and all future holders of the Notes.  In the case of any waiver, the parties to the
applicable agreement, the Lenders and the Administrative Agent shall be
restored to their former position and rights under the Loan Documents, and any
Default or


 


69





















 


Event of Default waived shall not extend to
any subsequent or other Default or Event of Default, or impair any right
consequent thereon.  Notwithstanding
anything contained herein to the contrary, no Defaulting Lender shall have the
right to approve or disapprove any amendment waiver or consent hereunder,
except that the Commitment of such Lender may not be increased or extended
without the consent of such Lender.


 


11.2                           Notices.


 


All notices, requests and demands to or upon the respective parties
hereto to be effective shall be in writing and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when delivered
by hand, or if sent by certified mail (return receipt requested), when the
return receipt is signed on behalf of the party to whom such notice is given,
or in the case of telecopier notice, when sent with a confirmation received, or
if sent by overnight nationwide commercial courier, the Business Day following
the date such notice is deposited with said courier, and in any case addressed
as follows in the case of the Borrower or the Administrative Agent, and at the
Domestic Lending Office in the case of each Lender, or to such other addresses
as to which the Administrative Agent may be hereafter notified by the
respective parties hereto or any future holders of the Notes:


 


The Borrower:


 


New Plan Excel Realty Trust, Inc.

1120 Avenue of the Americas; 12th Floor

New York, New York 10036

Attention:                                         John
B. Roche,

Chief Financial Officer

Telephone:                                    (212)
869-3000

Facsimile:               (212) 869-3989


 


with a copy to:


 


New Plan Excel Realty Trust, Inc.

1120 Avenue of the Americas

New York, New York 10036

Attention:                                         Steven
F. Siegel, Esq., General Counsel

Telephone:                                    (212)
869-3000

Facsimile:               (212) 869-7460


 


The Administrative Agent:


 


Citicorp North America, Inc.

Two Penns Way

New Castle, Delaware  19720

Attention:  Jonathan Lavinier

Telephone:  (302) 894-6065

Facsimile:  (212) 994-0961

Email:  jonathan.lavinier@citigroup.com

(the above address being the initial Administrative Agent’s Office)


 


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with a copy to:


 


Citicorp North America, Inc.

390 Greenwich Street, First Floor

New York, New York 10013

Attention:  Blake Gronich

Telephone:  (212) 723-6590

Facsimile:  (212) 723-8548


 


except that any notice, request or demand by the Borrower to or upon
the Administrative Agent or the Lenders pursuant to Section 2.6 shall not
be effective until received.  Any party
to a Loan Document may rely on signatures of the parties thereto which are
transmitted by telecopier or other electronic means as fully as if originally
signed.


 


11.3                           No
Waiver; Cumulative Remedies.


 


No failure to exercise and no delay in exercising any right, remedy,
power or privilege under any Loan Document shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege under any Loan Document preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privileges
under the Loan Documents are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.


 


11.4                           Survival
of Representations and Warranties.


 


All representations and warranties made hereunder and in any other Loan
Document or other document delivered pursuant hereto or thereto or in
connection herewith or therewith shall survive the execution and delivery
hereof and thereof.  Such representations
and warranties have been or will be relied upon by the Administrative Agent and
each Lender, regardless of any investigation made by the Administrative Agent
or any Lender or on their behalf and notwithstanding that the Administrative
Agent or any Lender may have had notice or knowledge of any Default at the time
of the making of any Loan, and shall continue in full force and effect as long
as any Loan or any other obligation of the Borrower, any Subsidiary Guarantor
or any of their respective Subsidiaries or Affiliates hereunder shall remain
unpaid or unsatisfied.


 


11.5                           Payment
of Expenses and Taxes.


 


The Borrower agrees, promptly upon presentation of a statement or
invoice therefor, and whether any Loan is made, (i) to pay or reimburse
the Administrative Agent and the Lead Arrangers for all of their reasonable out
of pocket costs and expenses reasonably incurred in connection with the
development, preparation, negotiation and execution of, the Loan Documents, the
syndication of the loan transaction evidenced by this Agreement (whether or not
such syndication is completed) and any amendment, supplement or modification
hereto (whether or not executed), any documents prepared in connection
therewith and the consummation of the transactions contemplated thereby,
including, without limitation, the reasonable fees and disbursements of Special
Counsel, (ii) to pay or reimburse each Credit Party for all of its
respective reasonable costs and expenses, including, without limitation,
reasonable fees and disbursements of counsel, reasonably incurred in connection
with (x) any Default or Event of


 


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Default and any enforcement or collection
proceedings resulting therefrom (including, without limitation, any reasonable
costs incurred after the entry of judgment in an attempt to collect money due
in the judgment) or in connection with the negotiation of any restructuring or “work
out” (whether consummated or not) of the obligations of the Borrower under any
of the Loan Documents and (y) the enforcement of this Section, (iii) to
pay, indemnify, and hold each Credit Party harmless from and against, any and
all recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other similar taxes, if
any, which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, the Loan Documents and any such other
documents, and (iv) to pay, indemnify and hold each Credit Party and each
of their respective officers, directors, employees, affiliates, agents,
controlling persons and attorneys (as used in this Section, each an “indemnified
person”) harmless from and against any and all other liabilities,
obligations, claims, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever (including,
without limitation, reasonable counsel fees and disbursements) with respect to
any claim, investigation or proceeding from any third party relating to this
Agreement or the Loan Documents, including the enforcement and performance of
the Loan Documents and the use of the proceeds of the Loans (all the foregoing,
collectively, the “indemnified liabilities”), whether or not any such
indemnified person is a party to this Agreement or the Loan Documents, and to
reimburse each indemnified person for all reasonable legal and other expenses
incurred in connection with investigating or defending any indemnified
liabilities, and, if and to the extent that the foregoing indemnity may be
unenforceable for any reason, the Borrower agrees to make the maximum payment
permitted or not prohibited under applicable law; provided, however, that the
Borrower shall have no obligation hereunder to pay indemnified liabilities to
any Credit Party arising from (A) the gross negligence or willful misconduct
of such Credit Party or (B) disputes solely between the Credit Parties and
which are not related to any act or failure to act on the part of the Borrower
or the failure of the Borrower or any of its Subsidiaries to perform any of
their respective obligations under this Agreement or any of the other Loan
Documents.


 


Notwithstanding the foregoing, the fees and expenses referred to in
clause (iv) of the preceding paragraph shall not be payable by the
Borrower if (x) any such enforcement action brought by such Credit Party is
dismissed, with prejudice, on the pleadings or pursuant to a motion made by the
Borrower for summary judgment, and (y) if such Credit Party appeals such
dismissal, such dismissal is affirmed and the time for any further appeals has expired.  The obligations of the Borrower under this Section shall
survive the termination of this Agreement and the Commitments and the payment
of the Notes and all other amounts payable under the Loan Documents.


 


11.6                           Lending
Offices.


 


Each Lender shall have the right at any time and from time to time to
transfer its Loans to a different office, provided that such Lender shall
promptly notify the Administrative Agent and the Borrower of any such change of
office.  Such office shall thereupon
become such Lender’s Domestic Lending Office or LIBOR Lending Office, as the
case may be; provided, however, that no such Lender shall be entitled to
receive any greater amount under Section 2.11, 2.12 or 2.14 as a result of
a transfer of any such Loans to a different office of such Lender than it would
be


 


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entitled to immediately prior thereto unless
such claim would have arisen even if such transfer had not occurred.


 


11.7                           Successors
and Assigns.


 


(a)                                  Successors
and Assigns Generally.  The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted
hereby, except that neither the Borrower nor any Subsidiary Guarantor may
assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of the Administrative Agent and each Lender, and no
Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an Eligible Assignee in accordance with the
provisions of subsection (b) of this Section, (ii) by way of
participation in accordance with the provisions of subsection (d) of
this Section, or (iii) by way of pledge or assignment of a security
interest subject to the restrictions of subsection (f) of this Section (and
any other attempted assignment or transfer by any party hereto shall be null
and void).  Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this Section and,
to the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.


 


(b)                                 Assignments
by Lenders.  Any Lender may at any
time assign to one or more Eligible Assignees all or a portion of its rights
and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it); provided that


 


(i)                                     except
in the case of an assignment of the entire remaining amount of the assigning
Lender’s Commitment and the Loans at the time owing to it or in the case of an
assignment to a Lender or an Affiliate of a Lender or an Approved Fund with
respect to a Lender, the aggregate amount of the Commitment (which for this
purpose includes Loans outstanding thereunder) or, if the Commitment is not
then in effect, the principal outstanding balance of the Loans of the assigning
Lender subject to each such assignment, determined as of the date the
Assignment and Assumption with respect to such assignment is delivered to the
Administrative Agent or, if “Trade Date” is specified in the Assignment and
Assumption, as of the Trade Date, and after giving effect to such assignment,
shall not be less than $5,000,000 unless each of the Administrative Agent and,
so long as no Event of Default has occurred and is continuing, the Borrower
consents (each such consent not to be unreasonably withheld or delayed);


 


(ii)                                  unless
otherwise approved by the Administrative Agent, such assignee shall acquire an
interest in the Loans of not less than $5,000,000 or such amount plus a whole
multiple of $1,000,000 in excess thereof, unless such assignee is acquiring all
of the assigning Lender’s Commitment;


 


(iii)                               each
partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement with
respect to the Loans or the Commitment assigned; and


 


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(iv)                              the
parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation
fee of $3,500, and the Eligible Assignee, if it shall not be a Lender, shall
deliver to the Administrative Agent an Administrative Questionnaire.


 


Subject to acceptance and recording thereof by the Administrative Agent
pursuant to subsection (c) of this Section, from and after the
effective date specified in each Assignment and Assumption, the Eligible
Assignee thereunder shall be a party to this Agreement and, to the extent of
the interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto) but shall continue to be entitled to the benefits of Sections
2.9, 2.11, 2.12, 11.5 and 11.11 with respect to facts and circumstances
occurring prior to the effective date of such assignment.  Upon request, the Borrower (at its expense)
shall execute and deliver a Note (i) to the assignee Lender and (ii) to
the assignor Lender if such assignment is less than such assignor Lender’s
entire commitment.  Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does
not comply with this subsection shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with subsection (d) of this Section.


 


(c)                                  Register.  The Administrative Agent, acting solely for
this purpose as an agent of the Borrower, shall maintain at the Administrative
Agent’s Office a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary.  The Register shall be available for
inspection by the Borrower at any reasonable time and from time to time upon
reasonable prior notice.  In addition, at
any time that a request for a consent for a material or substantive change to
the Loan Documents is pending, any Lender wishing to consult with other Lenders
in connection therewith may request and receive from the Administrative Agent a
copy of the Register.


 


(d)                                 Participations.  Any Lender may at any time, without the
consent of, or notice to, the Borrower or the Administrative Agent, sell
participations to any Person (other than a natural person or the Borrower, any
Subsidiary Guarantor or any of the Borrower’s or any Subsidiary Guarantor’s
Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion
of such Lender’s rights and/or obligations under this Agreement (including all
or a portion of its Commitment and/or the Loans owing to it); provided that (i) such
Lender’s obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative
Agent, the Lenders shall continue to deal solely and directly with such Lender
in connection with such Lender’s rights and obligations under this Agreement.


 


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Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in
the first proviso to Section 11.1 that affects such
Participant.  Subject to subsection (e) of
this Section, the Borrower agrees that each Participant shall be entitled to
the benefits of Sections 2.9, 2.11 and 2.12 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section.  To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 11.9
as though it were a Lender, provided such Participant agrees to be subject to
Sections 2.3(b) and (c) as though it were a Lender.


 


(e)                                  Limitations
upon Participant Rights.  A Participant
shall not be entitled to receive any greater payment under Section 2.9 or
2.11 than the applicable Lender would have been entitled to receive with
respect to the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrower’s prior written
consent.  A Participant that would be a
foreign corporation (as referred to in Section 2.9(b)) if it were a Lender
shall not be entitled to the benefits of Section 2.9 unless the Borrower
is notified of the participation sold to such Participant and such Participant,
for the benefit of the Borrower, complies with Section 2.9(b) as
though it were a Lender.


 


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


 


(g)                                 Electronic
Execution of Assignments.  The words “execution,”
“signed,” “signature,” and words of like import in any Assignment and
Assumption shall be deemed to include electronic signatures or the keeping of
records in electronic form, each of which shall be of the same legal effect,
validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as
provided for in any applicable law, including the Federal Electronic Signatures
in Global and National Commerce Act, the New York State Electronic Signatures
and Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act.


 


(h)                                 Resignation
by Administrative Agent.  In the
event that any Lender acting as Administrative Agent or any successor Lender
acting as Administrative Agent shall at any time hold a Commitment of less than
$10,000,000.00, then such Administrative Agent shall promptly provide written
notice thereof to the Lenders, and the Required Lenders shall have the right,
to be exercised within fifteen (15) days of delivery of such notice by such
Administrative Agent, to elect to remove such Administrative Agent as
Administrative Agent and replace such Administrative Agent under the Loan
Documents, subject to the terms of Section 10.8 (including, without
limitation, the consultation with, and approval from, the Borrower, to the
extent required under Section 10.8.


 


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11.8                           Counterparts;
Integration; Effectiveness.


 


This Agreement may be executed in counterparts (and by different
parties hereto in different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a single
contract.  This Agreement and the other
Loan Documents constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof.  Except as provided in Article V, this
Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof that, when taken together, bear the signatures of each of
the other parties hereto.  Delivery of an
executed counterpart of a signature page of this Agreement by facsimile
shall be effective as delivery of a manually executed counterpart of this
Agreement.  A telecopied counterpart of
any Loan Document or to any document evidencing, and of any an amendment,
modification, consent or waiver to or of any Loan Document shall be deemed to
be an originally executed counterpart.  A
set of the copies of the Loan Documents signed by all the parties thereto shall
be deposited with each of the Borrower and the Administrative Agent.  Any party to a Loan Document may rely upon
the signatures of any other party thereto which are transmitted by telecopier
or other electronic means to the same extent as if originally signed.


 


11.9                           Adjustments;
Set off.


 


(a)                                  If
any Lender (a “Benefited Lender”), shall at any time receive any payment of all
or any part of its Loans, or interest thereon, or receive any collateral in
respect thereof (whether voluntarily or involuntarily, by set off, pursuant to
events or proceedings of the nature referred to in Section 9.1(h) or
(i), or otherwise) in a greater proportion than any such payment to and
collateral received by any other Lender in respect of such other Lender’s
Loans, or interest thereon, such Benefited Lender shall purchase for cash from
each of the other Lenders such portion of each such other Lender’s Loans, and
shall provide each of such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
Benefited Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders, provided, however, that if all or
any portion of such excess payment or benefits is thereafter recovered from
such Benefited Lender, such purchase shall be rescinded, and the purchase price
and benefits returned, to the extent of such recovery, but without
interest.  The Borrower agrees that each
Lender so purchasing a portion of another Lender’s Loans may exercise all
rights of payment (including, without limitation, rights of set off, to the
extent not prohibited by law) with respect to such portion as fully as if such
Lender were the direct holder of such portion.


 


(b)                                 In
addition to any rights and remedies of the Lenders provided by law, upon the
occurrence of an Event of Default and the acceleration of the obligations owing
in connection with the Loan Documents, or at any time upon the occurrence and
during the continuance of an Event of Default under Section 9.1(a) or
(b), each Lender shall have the right, without prior notice to the Borrower,
any such notice being expressly waived by the Borrower to the extent not
prohibited by applicable law, to set off and apply against any indebtedness,
whether matured or unmatured, of the Borrower to such Lender, any amount owing
from such Lender to the Borrower, at, or at any time after, the happening of
any of the above mentioned


 


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events.  To the extent not prohibited by applicable
law, the aforesaid right of set off may be exercised by such Lender against the
Borrower or against any trustee in bankruptcy, custodian, debtor in possession,
assignee for the benefit of creditors, receiver, or execution, judgment or
attachment creditor of the Borrower, or against anyone else claiming through or
against the Borrower or such trustee in bankruptcy, custodian, debtor in
possession, assignee for the benefit of creditors, receivers, or execution,
judgment or attachment creditor, notwithstanding the fact that such right of
set off shall not have been exercised by such Lender prior to the making,
filing or issuance, or service upon such Lender of, or of notice of, any such
petition, assignment for the benefit of creditors, appointment or application
for the appointment of a receiver, or issuance of execution, subpoena, order or
warrant.  Each Lender agrees promptly to
notify the Borrower and the Administrative Agent after any such set off and
application made by such Lender, provided that the failure to give such notice
shall not affect the validity of such set off and application.


 


11.10                     Lenders’
Representations.


 


Each Lender represents to the Administrative Agent that, in acquiring
its Note, it is acquiring the same for its own account for the purpose of
investment and not with a view to selling the same in connection with any
distribution thereof, provided that the disposition of each Lender’s own
Property shall at all times be and remain within its control.


 


11.11                     Indemnity.


 


The Borrower agrees to indemnify and hold harmless each Credit Party
and its affiliates, directors, officers, employees, affiliates, agents,
controlling persons and attorneys (each an “Indemnified Person”) from
and against any loss, reasonable cost, liability, damage or reasonable expense
(including the reasonable fees and disbursements of counsel of such Indemnified
Person, including all local counsel hired by any such counsel) incurred by such
Indemnified Person in investigating, preparing for, defending against, or
providing evidence, producing documents or taking any other action in respect
of, any commenced or threatened litigation, administrative proceeding or
investigation under any federal securities or tax laws or any other statute of
any jurisdiction, or any regulation, or at common law or otherwise, which is
alleged to arise out of or is based upon: 
(i) any untrue statement of any material fact by the Borrower in
any document or schedule executed or filed with any Governmental Authority
by or on behalf of the Borrower; (ii) any omission to state any material
fact required to be stated in such document or schedule, or necessary to make
the statements made therein, in light of the circumstances under which made,
not misleading; or (iii) any acts, practices or omissions of the Borrower
or its agents relating to the use of the proceeds of any or all borrowings made
by the Borrower which are alleged to be in violation of Section 2.13, or
in violation of any federal securities or tax laws or of any other statute, regulation
or other law of any jurisdiction applicable thereto, whether or not such
Indemnified Person is a party thereto. 
The indemnity set forth herein shall be in addition to any other
obligations, liabilities or other indemnifications of the Borrower to each
Indemnified Person under the Loan Documents or at common law or otherwise, and
shall survive any termination of the Loan Documents, the expiration of the
Commitments and the payment of all indebtedness of the Borrower under the Loan
Documents, provided that the Borrower shall have no obligation under this Section to
an Indemnified Person with respect to any of the foregoing to the extent found
in a final judgment of a court having jurisdiction to have resulted primarily
out of the gross negligence or willful misconduct of such


 


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Indemnified Person or arising solely from
claims between one such Indemnified Person and another such Indemnified Person.


 


11.12                     Governing
Law.


 


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


 


11.13                     Headings
Descriptive.


 


Section headings have been inserted in the Loan Documents for
convenience only and shall not be construed to be a part thereof.


 


11.14                     Severability.


 


If any provision of this Agreement or the other Loan Documents is held
to be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other Loan
Documents shall not be affected or impaired thereby and (b) the parties
shall endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable
provisions.  The invalidity of a
provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.


 


11.15                     Consent
to Jurisdiction.


 


The Borrower and each of the Credit Parties hereby irrevocably submit
to the jurisdiction of any New York State or Federal court sitting in the City
of New York over any suit, action or proceeding arising out of or relating to
the Loan Documents.  The Borrower and
each of the Credit Parties hereby irrevocably waive, to the fullest extent
permitted or not prohibited by law, any objection which any of them may now or
hereafter have to the laying of the venue of any such suit, action or
proceeding brought in such a court and any claim that any such suit, action or
proceeding brought in such a court has been brought in an inconvenient
forum.  The parties intend that Section 5-1402
of the New York General Obligations Law shall apply to this Section 11.15.


 


11.16                     Service of
Process.


 


The Borrower hereby agrees that process may be served against it in any
suit, action or proceeding referred to in Section 11.15 by sending the
same by first class mail, return receipt requested or by overnight courier
service, to the address of the Borrower set forth in Section 11.2 or in the
applicable Loan Document executed by the Borrower.  The Borrower hereby agrees that any such
service (i) shall be deemed in every respect effective service of process
upon it in any such suit, action, or proceeding, and (ii) shall to the
fullest extent enforceable by law, be taken and held to be valid personal
service upon and personal delivery to it.


 


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11.17                     No
Limitation on Service or Suit.


 


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


 


11.18                     WAIVER OF
TRIAL BY JURY.


 


THE ADMINISTRATIVE AGENT, THE LENDERS AND THE BORROWER HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT ANY OF THEM MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN
CONNECTION WITH THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
THEREIN.  FURTHER, THE BORROWER HEREBY
CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF THE ADMINISTRATIVE AGENT, THE
LENDERS, OR COUNSEL TO THE ADMINISTRATIVE AGENT OR THE LENDERS, HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE ADMINISTRATIVE AGENT OR THE
LENDERS WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER
OF RIGHT TO JURY TRIAL PROVISION.  THE BORROWER
ACKNOWLEDGES THAT THE ADMINISTRATIVE AGENT AND THE LENDERS HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, INTER ALIA, THE PROVISIONS OF THIS SECTION.


 


11.19                     Termination.


 


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


 


11.20                     Replacement
Notes.


 


Upon receipt of evidence reasonably satisfactory to the Borrower of the
loss, theft, destruction or mutilation of any Note, and in the case of any such
loss, theft or destruction, upon delivery by the relevant Lender of an
indemnity agreement reasonably satisfactory to the Borrower or, in the case of
any such mutilation, upon surrender and cancellation of the applicable Note,
the Borrower will execute and deliver, in lieu thereof, a replacement Note,
identical in form and substance to the applicable Note and dated as of the date
of the applicable Note and upon such execution and delivery all references in
the Loan Documents to such Note shall be deemed to refer to such replacement
Note.


 


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


 


11.22                     Replacement
of Lenders.  If any Lender requests
compensation under Section 2.11, or if the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 2.9, or if any Lender is a Defaulting
Lender, then the Borrower may, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
and other requirements contained in, and consents required by, Section 11.7),
all of its interests, rights and obligations under this Agreement and the
related Loan Documents to an assignee that shall assume such obligations (which
assignee may be, but is not required to be, another Lender, if a Lender accepts
such assignment), provided that:


 


(a)                                  the
Borrower shall have paid to the Administrative Agent the assignment fee
specified in Section 11.7;


 


(b)                                 such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder and under the other Loan Documents (including
any amounts under Section 2.12) from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Borrower (in the case
of all other amounts);


 


(c)                                  in
the case of any such assignment resulting from a claim for compensation under Section 2.11
or payments required to be made pursuant to Section 2.9, such assignment
will result in a reduction in such compensation or payments thereafter;


 


(d)                                 such
assignment does not conflict with applicable Laws; and


 


(e)                                  from
and after the effective date of such assignment the assigning Lender shall be
released from its obligations under this Agreement (and shall cease to be a
party hereto) but shall continue to be entitled to the benefits of Sections
2.9, 2.11, 2.12, 11.5 and 11.11 with respect to facts and circumstances
occurring prior to the effective date of such assignment.


 


A Lender shall not be required to make any such assignment or delegation
if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply.


 


11.23                     Relationships.  None of the Administrative Agent or any
Lender has any fiduciary relationship with or fiduciary duty to the Borrower,
the Subsidiary Guarantors or their respective Subsidiaries arising out of or in
connection with this Agreement or the other Loan Documents or the transactions
contemplated hereunder and thereunder, and the relationship between each Lender
and the Borrower is solely that of a lender and borrower, and nothing contained
herein or


 


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in any of the
other Loan Documents shall in any manner be construed as making the parties
hereto partners, joint venturers or any other relationship other than lender
and borrower.


 


[SIGNATURES COMMENCE ON FOLLOWING PAGE]


 


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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.


 


	
   

  	
  NEW PLAN EXCEL REALTY TRUST, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John B. Roche

  	
   

  
	
   

  	
   

  	
  Name:  John B. Roche

  
	
   

  	
   

  	
  Title:   Executive Vice
  President and

  
	
   

  	
   

  	
  Chief Financial Officer

  



 





















 


	
   

  	
  CITICORP NORTH AMERICA, INC.,

  individually, as a Lender, and as Administrative

  Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Bouton

  	
   

  
	
   

  	
   

  	
  Name:  David Bouton

  
	
   

  	
   

  	
  Title:  Vice President

  
	
   

  	
   

  
	
  Citicorp North America, Inc.

  	
   

  
	
  Two Penns Way

  	
   

  
	
  New Castle, Delaware 19720

  	
   

  
	
  Attention:  Jonathan Lavinier

  	
   

  
	
  Facsimile:  (212) 994-0961

  	
   

  
	
   

  	
   

  
	
  with a copy to:

  	
   

  
	
   

  	
   

  
	
  Citicorp North America, Inc.

  	
   

  
	
  390 Greenwich Street, First Floor

  	
   

  
	
  New York, New York 10013

  	
   

  
	
  Attn: Blake Gronich

  	
   

  
	
  Facsimile: (212) 783-8548

  	
   

  



 





















 


	
   

  	
  CITIGROUP GLOBAL MARKETS INC., as a

  Joint Lead Arranger and Joint Book Running

  Manager

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Bouton

  	
   

  
	
   

  	
   

  	
  Name:  David Bouton

  
	
   

  	
   

  	
  Title:  Director

  
	
   

  	
   

  
	
  Citigroup Global Markets Inc.

  	
   

  
	
  390 Greenwich Street, First Floor

  	
   

  
	
  New York, New York 10013

  	
   

  
	
  Attn: Blake Gronich

  	
   

  
	
  Facsimile: (212) 783-8548

  	
   

  



 





















 


	
   

  	
  MERRILL LYNCH, PIERCE, FENNER & SMITH

  INCORPORATED, as a Joint Lead Arranger and

  Joint Book Running Manager and as Syndication

  Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark Landau

  	
   

  
	
   

  	
   

  	
  Name: Mark Landau

  
	
   

  	
   

  	
  Title:   Managing Director

  
	
   

  	
   

  
	
  Merrill Lynch, Pierce, Fenner & Smith

  	
   

  
	
  Incorporated

  	
   

  
	
  4 World Financial Center

  	
   

  
	
  200 Vesey Street

  	
   

  
	
  New York, New York 10080

  	
   

  
	
  Attn: Koren Sill

  	
   

  
	
  Facsimile:

  	
   

  



 





















 


	
   

  	
  MERRILL LYNCH BANK USA, as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Louis Alder

  	
   

  
	
   

  	
   

  	
  Name:  Louis Alder

  
	
   

  	
   

  	
  Title:    Director

  
	
   

  	
   

  
	
  Merrill Lynch Bank USA

  	
   

  
	
  15 West South Temple, Suite 300

  	
   

  
	
  Salt Lake City, Utah 84101

  	
   

  
	
  Attn: Frank K. Stepan

  	
   

  
	
  Phone: (801) 526-8316

  	
   

  
	
  Facsimile: (801) 531-7470