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


 


17





















 


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


 


19





















 


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.


 


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(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,


 


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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


 


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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;


 


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(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


 


76





















 


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


 


77





















 


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

  	
   

  
	
   

  	
   

  	
  John B. Roche,

  
	
   

  	
   

  	
  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


 





















 


EXHIBIT B


 


TO TERM LOAN AGREEMENT


 


LIST OF COMMITMENTS

AND DOMESTIC AND LIBOR

LENDING OFFICES


 


	
  Lender

  	
   

  	
  Commitment Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Citicorp North America, Inc.

  390 Greenwich Street, First Floor

  New York, New York 10013

  Attn: Blake Gronich

  	
   

  	
  $

  	
  75,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  LIBOR Lending Office

  Same as Above

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Merrill Lynch Bank USA

  15 West South Temple, Suite 300

  Salt Lake City, Utah 84101

  Attn: Frank K. Stepan

  Telephone: (801) 526-8316

  Facsimile: (801) 531-7470

  	
   

  	
  $

  	
  75,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  LIBOR Lending Office Same as Above

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  TOTAL

  	
   

  	
  $

  	
  150,000,000.00