Exhibit
10.1


 


SECOND AMENDED AND RESTATED


REVOLVING SECURED CREDIT AND GUARANTY
AGREEMENT


 


among


 


SL GREEN OPERATING PARTNERSHIP, L. P.,


 


As Borrower,


 


SL GREEN REALTY CORP.


 


AND ITS SUBSIDIARIES PARTY HERETO,


 


As Guarantors,


 


THE LENDERS PARTY HERETO,


 


As Lenders,


 


FLEET NATIONAL BANK,


 


As Administrative Agent for the Lenders


 


and As Collateral Agent for the Secured
Parties,


 


WACHOVIA BANK NATIONAL ASSOCIATION,


 


As Syndication Agent for the Lenders,


 


SOVEREIGN BANK and COMMERZBANK AG NEW YORK
BRANCH,


 


As Co-Documentation Agents for the Lenders,


 


THE BANK OF NEW YORK,


 


As Managing Agent for the Lenders,


 


FLEET SECURITIES, INC. and


 


WACHOVIA CAPITAL MARKETS LLC,


 


As Co-Arrangers


 


 


Effective Date: March 22, 2004


 

















 


TABLE OF CONTENTS


 


	
  §1.

  	
  DEFINITIONS AND
  RULES OF INTERPRETATION

  	
   

  
	
  §1.1

  	
  Definitions.

  	
   

  
	
  §1.2

  	
  Rules of Interpretation.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  §2.

  	
  REVOLVING SECURED
  CREDIT FACILITY

  	
   

  
	
  §2.1.

  	
  Commitment
  to Lend; Limitation on Total Commitment.

  	
   

  
	
  §2.2.

  	
  Changes in Total
  Commitment.

  	
   

  
	
  §2.3.

  	
  The Notes

  	
   

  
	
  §2.4.

  	
  Interest
  on Loans.

  	
   

  
	
  §2.5.

  	
  Requests for Loans.

  	
   

  
	
  §2.6.

  	
  Conversion Options.

  	
   

  
	
  §2.7.

  	
  Funds
  for Loans.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  §3.

  	
  REPAYMENT OF THE LOANS

  	
   

  
	
  §3.1.

  	
  Maturity.

  	
   

  
	
  §3.2.

  	
  Mandatory Repayments of
  Loan.

  	
   

  
	
  §3.3.

  	
  Optional Repayments of
  Loans.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  §4.

  	
  CERTAIN GENERAL PROVISIONS

  	
   

  
	
  §4.1.

  	
  [Intentionally Omitted].

  	
   

  
	
  §4.2.

  	
  Commitment
  Fee.

  	
   

  
	
  §4.3.

  	
  Funds for Payments.

  	
   

  
	
  §4.4.

  	
  Computations.

  	
   

  
	
  §4.5.

  	
  Additional Costs, Etc.

  	
   

  
	
  §4.6.

  	
  Capital
  Adequacy.

  	
   

  
	
  §4.7.

  	
  Certificate.

  	
   

  
	
  §4.8.

  	
  Indemnity.

  	
   

  
	
  §4.9.

  	
  Interest on Overdue
  Amounts.

  	
   

  
	
  §4.10.

  	
  Inability to
  Determine LIBOR Rate.

  	
   

  
	
  §4.11.

  	
  Illegality.

  	
   

  
	
  §4.12.

  	
  Replacement of Lenders.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  §5.

  	
  STRUCTURED
  FINANCE COLLATERAL ASSETS; NO LIMITATION ON RECOURSE

  	
   

  
	
  §5.1.

  	
  Structured
  Finance Collateral Assets.

  	
   

  
	
  §5.2.

  	
  Waivers by Requisite
  Lenders.

  	
   

  
	
  §5.3.

  	
  Rejection
  of Structured Finance Collateral Assets.

  	
   

  
	
  §5.4.

  	
  Change in Circumstances.

  	
   

  
	
  §5.5.

  	
  No Limitation on Recourse.

  	
   

  
	
  §5.6.

  	
  Additional Guarantors.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  §6.

  	
  REPRESENTATIONS AND
  WARRANTIES.

  	
   

  
	
  §6.1.

  	
  Authority;
  Etc.

  	
   

  



 


i

















 


	
  §6.2.

  	
  Governmental Approvals.

  	
   

  
	
  §6.3.

  	
  Title to Properties.

  	
   

  
	
  §6.4.

  	
  Financial Statements.

  	
   

  
	
  §6.5.

  	
  No Material Changes, Etc.

  	
   

  
	
  §6.6.

  	
  Franchises,
  Patents, Copyrights, Etc.

  	
   

  
	
  §6.7.

  	
  Litigation.

  	
   

  
	
  §6.8.

  	
  No Materially
  Adverse Contracts, Etc.

  	
   

  
	
  §6.9.

  	
  Compliance
  With Other Instruments, Laws, Etc.

  	
   

  
	
  §6.10.

  	
  Tax Status.

  	
   

  
	
  §6.11.

  	
  Event
  of Default.

  	
   

  
	
  §6.12.

  	
  Investment Company Act.

  	
   

  
	
  §6.13.

  	
  Absence of Financing
  Statements, Etc.

  	
   

  
	
  §6.14.

  	
  Status of the Company.

  	
   

  
	
  §6.15.

  	
  Certain Transactions.

  	
   

  
	
  §6.16.

  	
  Benefit
  Plans; Multiemployer Plans; Guaranteed Pension Plans.

  	
   

  
	
  §6.17.

  	
  Regulations U and X.

  	
   

  
	
  §6.18.

  	
  Environmental Compliance.

  	
   

  
	
  §6.19.

  	
  Subsidiaries and
  Affiliates.

  	
   

  
	
  §6.20.

  	
  Loan
  Documents.

  	
   

  
	
  §6.21.

  	
  [Intentionally Omitted].

  	
   

  
	
  §6.22.

  	
  Indebtedness.

  	
   

  
	
  §6.23.

  	
  Title/Status
  of Structured Finance Assets.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  §7.

  	
  AFFIRMATIVE
  COVENANTS OF THE BORROWER.

  	
   

  
	
  §7.1.

  	
  Punctual
  Payment.

  	
   

  
	
  §7.2.

  	
  Maintenance of Office.

  	
   

  
	
  §7.3.

  	
  Records and Accounts.

  	
   

  
	
  §7.4.

  	
  Financial
  Statements, Certificates and Information.

  	
   

  
	
  §7.5.

  	
  Notices.

  	
   

  
	
  §7.6.

  	
  Existence;
  Maintenance of REIT Status; Maintenance of Properties.

  	
   

  
	
  §7.7.

  	
  Insurance.

  	
   

  
	
  §7.8.

  	
  Taxes.

  	
   

  
	
  §7.9.

  	
  Inspection of
  Properties and Books.

  	
   

  
	
  §7.10.

  	
  Compliance
  with Laws, Contracts, Licenses, and Permits.

  	
   

  
	
  §7.11.

  	
  Use
  of Proceeds.

  	
   

  
	
  §7.12.

  	
  [Intentionally Omitted].

  	
   

  
	
  §7.13.

  	
  Notices of
  Significant Transactions.

  	
   

  
	
  §7.14.

  	
  Further Assurance.

  	
   

  
	
  §7.15.

  	
  Environmental
  Indemnification.

  	
   

  
	
  §7.16.

  	
  Response
  Actions.

  	
   

  
	
  §7.17.

  	
  Employee Benefit Plans.

  	
   

  
	
  §7.18.

  	
  Required Interest
  Rate Contracts.

  	
   

  
	
  §7.19.

  	
  Forward Equity Contracts.

  	
   

  
	
  §7.20.

  	
  Title/Status
  of Structured Finance Assets.

  	
   

  
	
  §7.21.

  	
  Other
  Facilities

  	
   

  
				



 


ii

















 


	
  §8.

  	
  CERTAIN
  NEGATIVE COVENANTS OF THE BORROWER.

  	
   

  
	
  §8.1

  	
  [Intentionally Omitted].

  	
   

  
	
  §8.2.

  	
  Restrictions on
  Investments.

  	
   

  
	
  §8.3.

  	
  Merger,
  Consolidation and Other Fundamental Changes.

  	
   

  
	
  §8.4.

  	
  Sale of Collateral.

  	
   

  
	
  §8.5.

  	
  Compliance with
  Environmental Laws.

  	
   

  
	
  §8.6.

  	
  Distributions.

  	
   

  
	
  §8.7.

  	
  Preferred Distributions.

  	
   

  
	
  §8.8.

  	
  Preferred Redemptions.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  §9.

  	
  FINANCIAL
  COVENANTS OF THE BORROWER.

  	
   

  
	
  §9.1.

  	
  Adjusted Unsecured
  Debt Coverage.

  	
   

  
	
  §9.2.

  	
  Minimum Debt Service
  Coverage.

  	
   

  
	
  §9.3.

  	
  Total Debt to Total Assets.

  	
   

  
	
  §9.4.

  	
  Minimum Tangible Net Worth.

  	
   

  
	
  §9.5.

  	
  Adjusted EBITDA to
  Fixed Charges.

  	
   

  
	
  §9.6.

  	
  Aggregate Occupancy Rate .

  	
   

  
	
  §9.7.

  	
  Value of All
  Unencumbered Assets

  	
   

  
	
  §9.8.

  	
  Indebtedness
  of the 1221 Avenue of the Americas Investment Party.

  	
   

  
	
  §9.9.

  	
  Amendments and
  Modifications to §9.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  §10.

  	
  CONDITIONS TO
  EFFECTIVENESS.

  	
   

  
	
  §10.1.

  	
  Loan
  Documents.

  	
   

  
	
  §10.2.

  	
  Certified
  Copies of Organization Documents; Good Standing Certificates .

  	
   

  
	
  §10.3.

  	
  By-laws; Resolutions.

  	
   

  
	
  §10.4.

  	
  Incumbency
  Certificate; Authorized Signers.

  	
   

  
	
  §10.5.

  	
  Title Insurance; Lien
  Searches.

  	
   

  
	
  §10.6.

  	
  Opinions
  of Counsel Concerning Organization, Loan Documents and Collateral.

  	
   

  
	
  §10.7.

  	
  Payment
  of Fees.

  	
   

  
	
  §10.8.

  	
  Existing Agreement.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  §11.

  	
  CONDITIONS TO ALL
  CREDIT ADVANCES.

  	
   

  
	
  §11.1.

  	
  Representations
  True; No Event of Default; Compliance Certificate.

  	
   

  
	
  §11.2.

  	
  No Legal Impediment.

  	
   

  
	
  §11.3.

  	
  Proceedings and Documents.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  §12.

  	
  EVENTS OF DEFAULT;
  ACCELERATION; ETC

  	
   

  
	
  §12.1.

  	
  Events of Default
  and Acceleration.

  	
   

  
	
  §12.2.

  	
  Termination of Commitments.

  	
   

  
	
  §12.3.

  	
  Remedies.

  	
   

  
	
  §12.4.

  	
  Distribution of
  Enforcement Proceeds.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  §13.

  	
  SETOFF.

  	
   

  



 


iii

















 


	
  §14.

  	
  THE AGENT

  	
   

  
	
  §14.1.

  	
  Authorization.

  	
   

  
	
  §14.2.

  	
  Employees and Agents.

  	
   

  
	
  §14.3.

  	
  No Liability to Lenders.

  	
   

  
	
  §14.4.

  	
  No Representations.

  	
   

  
	
  §14.5.

  	
  Payments.

  	
   

  
	
  §14.6.

  	
  Holders
  of Notes.

  	
   

  
	
  §14.7.

  	
  Indemnity.

  	
   

  
	
  §14.8.

  	
  Agent
  as Lender.

  	
   

  
	
  §14.9.

  	
  Resignation.

  	
   

  
	
  §14.10.

  	
  Notification
  of Defaults and Events of Default and other Notices.

  	
   

  
	
  §14.11.

  	
  Duties in the Case
  of Enforcement.

  	
   

  
	
  §14.12.

  	
  Mandatory Resignation
  of Agent.

  	
   

  
	
  §14.13.

  	
  Matters as to Borrower.

  	
   

  
	
  §14.14.

  	
  Concerning
  the Collateral and the Collateral Documents.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  §15.

  	
  EXPENSES.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  §16.

  	
  INDEMNIFICATION.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  §17.

  	
  SURVIVAL OF COVENANTS, ETC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  §18.

  	
  GUARANTY.

  	
   

  
	
  §18.1.

  	
  Guaranty.

  	
   

  
	
  §18.2.

  	
  Obligations Unconditional.

  	
   

  
	
  §18.3.

  	
  Modifications.

  	
   

  
	
  §18.4.

  	
  Waiver
  of Rights.

  	
   

  
	
  §18.5.

  	
  Reinstatement.

  	
   

  
	
  §18.6.

  	
  Remedies.

  	
   

  
	
  §18.7.

  	
  Limitation of Guaranty.

  	
   

  
	
  §18.8.

  	
  Release of Guaranty.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  §19.

  	
  ASSIGNMENT;
  PARTICIPATIONS; ETC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  §19.1.

  	
  Conditions to
  Assignment by Lenders.

  	
   

  
	
  §19.2.

  	
  Certain
  Representations and Warranties; Limitations; Covenants.

  	
   

  
	
  §19.3

  	
  Register.

  	
   

  
	
  §19.4.

  	
  New Notes.

  	
   

  
	
  §19.5.

  	
  Participations.

  	
   

  
	
  §19.6.

  	
  Pledge
  by Lender.

  	
   

  
	
  §19.7.

  	
  No Assignment by Borrower.

  	
   

  
	
  §19.8.

  	
  Disclosure.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  §20.

  	
  NOTICES,
  ETC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  §21.

  	
  GOVERNING
  LAW; CONSENT TO JURISDICTION AND SERVICE.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  §22.

  	
  HEADINGS.

  	
   

  



 


iv

















 


	
  §23.

  	
  COUNTERPARTS.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  §24.

  	
  ENTIRE
  AGREEMENT.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  §25.

  	
  WAIVER
  OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  §26.

  	
  CONSENTS,
  AMENDMENTS, WAIVERS, ETC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  §27.

  	
  SEVERABILITY.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  §28.

  	
  ACKNOWLEDGMENTS.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  §29.                                  CONSENT
  TO AMENDMENT AND RESTATEMENT; TRANSITIONAL ARRANGEMENTS

  	
   

  
	
  §29.1.

  	
  Existing Credit Agreement
  Superseded.

  	
   

  
	
  §29.2.

  	
  Return and
  Cancellation of Notes.

  	
   

  
	
  §29.3.

  	
  Interest
  and Fees under the Existing Agreement.

  	
   

  



 


v

















 


	
  Exhibit A

  	
   

  	
  Form of Notes

  
	
  Exhibit B

  	
   

  	
  Form of Loan
  Request

  
	
  Exhibit C

  	
   

  	
  Form of
  Compliance Certificate

  
	
  Exhibit D

  	
   

  	
  Form of Amended
  and Restated Pledge and Security Agreement

  
	
  Exhibit E

  	
   

  	
  Form of
  Assignment and Acceptance

  
	
   

  	
   

  	
   

  
	
  Schedule 1

  	
   

  	
  Lenders;
  Domestic and LIBOR Lending Offices

  
	
  Schedule 1.1

  	
   

  	
  Structured
  Finance Collateral Assets

  
	
  Schedule 1.2

  	
   

  	
  Commitments
  and Commitment Percentages

  
	
  Schedule 1.3

  	
   

  	
  Related Companies, Unconsolidated Entities and Guarantors

  
	
  Schedule 1.4.

  	
   

  	
  [INTENTIONALLY OMITTED]

  
	
  Schedule 6.3

  	
   

  	
  Title to Properties

  
	
  Schedule 6.7

  	
   

  	
  Litigation

  
	
  Schedule 6.15

  	
   

  	
  Insider Transactions

  
	
  Schedule 6.16

  	
   

  	
  Employee Benefit Plans

  
	
  Schedule 6.18

  	
   

  	
  Environmental Matters

  
	
  Schedule 6.19

  	
   

  	
  Company Assets

  
	
  Schedule 6.21

  	
   

  	
  Building Structural Defects, etc.

  
	
  Schedule 6.22

  	
   

  	
  Indebtedness

  
	
  Schedule 8.2(d)

  	
   

  	
  Investments

  
	
  Schedule 8.2(h)

  	
   

  	
  As-Is Value Capitalization Rates

  



 


vi

















 


CREDIT AGREEMENT


 


This SECOND AMENDED AND RESTATED REVOLVING SECURED
CREDIT AND GUARANTY AGREEMENT is made as of the
          day of March, 2004,
by and among (i) SL GREEN OPERATING PARTNERSHIP, L.P., a Delaware limited
partnership (the “Borrower”), (ii) SL GREEN REALTY CORP., a Maryland
corporation (the “Company”, and a “Guarantor”, as such term is defined herein),
(iii) each of the direct and indirect Subsidiaries of the Borrower or the
Company that is a signatory hereto under the caption “Guarantors” on the
signature pages hereto or from time to time hereafter as a “Guarantor”, (iv)
each of the financial institutions that is a signatory hereto under the caption
“Lenders” on the signature pages hereto or that, pursuant to §19, shall become
a “Lender” (individually, a “Lender” and, collectively, the “Lenders”),  (v) FLEET NATIONAL BANK,  a national banking association, as
administrative agent for the Lenders hereunder and as collateral agent for the
Secured Parties under the Collateral Documents (in such capacities, the
“Agent”), (vi) WACHOVIA BANK NATIONAL ASSOCIATION (f/k/a FIRST UNION NATIONAL
BANK), as syndication agent for the Lenders hereunder, (vii) SOVEREIGN BANK and
COMMERZBANK AG NEW YORK BRANCH, as co-documentation agents for the Lenders
hereunder, and (viii) THE BANK OF NEW YORK, as managing agent for the Lenders
hereunder.


 


WHEREAS, pursuant to that certain Amended and
Restated Revolving Secured Credit and Guaranty Agreement, dated as of
December 16, 2003, among the Borrower, the Guarantors signatory thereto
(the “Existing Guarantors”), the lenders signatory thereto (the “Existing
Lenders”), Fleet National Bank, as administrative agent, Wachovia Bank National
Association, as syndication agent, and Sovereign Bank, as documentation agent
(as amended from time to time, the “Existing Credit Agreement”), the Existing
Lenders have agreed to make available to the Borrower secured revolving loans
in an aggregate amount not to exceed $75,000,000; and


 


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


 


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


 


§1.                                DEFINITIONS AND RULES OF INTERPRETATION


 


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


 


Additional Commitment.  The portion (if any) of any Lender’s Commitment which will become
effective on the Commitment Increase Date if the Total Commitment is increased
pursuant to § 2.2.


 


Additional Commitment Lenders.  Those Lenders which provide an Additional
Commitment.


 

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Applicable LIBOR Margin. The applicable margin over
the LIBOR Rate which is used in calculating the interest rate applicable to
LIBOR Rate Loans and which shall vary from time to time in accordance with the
Company’s then applicable (if any) Moody’s Rating, S&P Rating and Fitch
Rating (for purposes of this definition, each a “debt rating”), as set forth
below in this


 


2

















 


definition.  If at any time of determination of the
Applicable LIBOR Margin, the Company has then current debt ratings from at
least two (2) of Moody’s, S&P or Fitch, then the Applicable LIBOR Margin
shall be based on the lower of such ratings.


 


The applicable debt ratings and the Applicable LIBOR
Margins are set forth in the following table:


 


	
  S&P Rating

  	
   

  	
  Moody’s
  Rating

  	
   

  	
  Fitch
  Rating

  	
   

  	
  Applicable
  Margin for

  LIBOR Rate Loans

  
	
  BBB-

  	
   

  	
  Baa3

  	
   

  	
  BBB-/Baa3 equivalent

  	
   

  	
  120 basis points

  
	
  BBB

  	
   

  	
  Baa2

  	
   

  	
  BBB/Baa2 equivalent

  	
   

  	
  100 basis points

  
	
  BBB+ or higher

  	
   

  	
  Baa1 or higher

  	
   

  	
  BBB+/Baa1 equivalent or
  higher

  	
   

  	
  95 basis points

  



 


The
Applicable LIBOR Margin shall be adjusted effective on the first Business Day
following the effective date of a change in the Moody’s Rating, the S&P
Rating or the Fitch Rating, as the case may be. Notwithstanding the foregoing,
if during any period either (x) the Company does not maintain debt ratings from
at least two (2) of Moody’s, S&P or Fitch or (y) the Company does maintain
such debt ratings but at least one of such debt ratings is less than BBB-/Baa3
(or the equivalent), the Applicable LIBOR Margin during such period shall be
140 basis points.


 


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


 


Assignment and Acceptance. See §19.


 


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


 


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


 


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


 


Borrower.  As
defined in the preamble hereto.


 


3

















 


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


 


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


 


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


 


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


 


CERCLA. See §6.18.


 


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


 


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


 


Collateral. 
As defined in the Pledge and Security Agreement, or as defined in any
other Collateral Document.


 


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


 


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


 


Commitment Increase.  An increase in the Total Commitment to not more than $150,000,000
pursuant to § 2.2(a).


 


Commitment Increase Date.  See §2.2(a).


 


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


 


Company. As defined in the preamble hereto.


 


Compliance Certificate.  See §2.5(a).


 


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


 


Default.  See
§12.1.


 


Delinquent Lender. 
See §14.5(c).


 


4

















 


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


 


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


 


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


 


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


 


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


 


Eligible Assignee. 
Any of (a) a commercial bank organized under the laws of the United
States, or any State thereof or the District of Columbia, and having total
assets in excess of $5,000,000,000; (b) a savings and loan association or
savings bank organized under the laws of the United States, or any State
thereof or the District of Columbia, and having a net worth of at least
$100,000,000, calculated in accordance with Generally Accepted Accounting
Principles; (c) a commercial bank organized under the laws of any other country
which is a member of the Organization for Economic Cooperation and Development
(the “OECD”), and having total assets in excess of $5,000,000,000, provided
that such bank is acting through a branch or agency located in the country in
which it is organized or another country which is also a member of the


 


5

















 


OECD;
(d) the central bank of any country which is a member of the OECD; (e) a
finance company, insurance company or other financial institution (whether a
corporation, partnership, trust or other entity) that is engaged in making,
purchasing or otherwise investing in commercial loans in the ordinary course of
its business and having total assets in excess of $5,000,000,000, and (f) any
Lender or Affiliated Lender. 
Notwithstanding anything to the contrary, the term Eligible Assignee
shall exclude any Person controlling, controlled by or under common control
with, the Borrower or the Company.


 


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


 


Environmental Laws. 
See §6.18(a).


 


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


 


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


 


ERISA Event. 
Any of the following:


 


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


 


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


 


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


 


(iv) the withdrawal by the
Borrower or any Guarantor or any of their ERISA Affiliates from any Guaranteed
Pension Plan with two or more contributing sponsors or the termination of any
such Guaranteed Pension Plan resulting in liability pursuant to
Section 4063 or 4064 of ERISA in excess of $5,000,000.00,


 


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


 


6

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Event of Default. 
See §12.1.


 


7

















 


Existing Credit Agreement.  As defined in the recitals thereto.


 


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


 


Fitch.  Fitch
Ratings, a division of Fitch, Inc. or its successors.


 


Fitch Rating. 
The rating for the Company’s senior long-term unsecured debt assigned by
Fitch.


 


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


 


Fixed Rate Prepayment Fee.  See §3.3.


 


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


 


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


 


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


 


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


 


Guaranteed Pension Plan. Any employee pension
benefit plan within the meaning of §3(2) of ERISA maintained or contributed to
by the Borrower, any Guarantor or any ERISA


 


8

















 


Affiliate
the benefits of which are guaranteed on termination in full or in part by the
PBGC pursuant to Title IV of ERISA, other than a Multiemployer Plan.


 


Guaranteed Obligations.  Collectively,


 


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


 


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


 


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


 


Guaranty. See §18.1.


 


Hazardous Materials. See §6.18(a).


 


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


 


9

















 


consideration
payable by such Person in accordance with Generally Accepted Accounting
Principles over the remaining unexpired term of all Capitalized Leases of such
Person, (x) all outstanding monetary judgments or decrees by a court or courts
of competent jurisdiction entered against such Person, (xi) all convertible
debt and subordinated debt owed by such Person, (xii) all preferred partnership
interests and preferred stock issued by such Person that, in either case, are
redeemable prior to the Maturity Date for cash on a mandatory basis, a cash
equivalent, a note receivable or similar instrument or are convertible prior to
the Maturity Date on a mandatory basis to Indebtedness as defined herein,
(xiii) all customary trade payables and accrued expenses more than sixty (60)
days past due, (xiv) expected amortization of tenant costs and leasing
commissions over such Person’s next twelve succeeding fiscal months, and (xv)
all obligations, liabilities, reserves and any other items which are listed as
a liability on a balance sheet of such Person determined on a consolidated
basis in accordance with Generally Accepted Accounting Principles, but
excluding all general contingency reserves and reserves for deferred income
taxes and investment credit, and excluding debt covered by escrows and security
deposits fully funded by cash or cash equivalents.


 


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


 


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


 


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


 


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


 


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


 


10

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Lenders.  As
defined in the preamble hereto.


 


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


 


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


 


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


 


Lien.  Any
lien, encumbrance, mortgage, deed of trust, pledge, restriction or other
security interest.  If title to any Real
Estate Asset is held by a Subsidiary of Borrower or an


 


11

















 


Unconsolidated
Entity then any pledge or assignment of Borrower’s stock, partnership interest,
limited liability company interest or other ownership interest in such
Subsidiary or Unconsolidated Entity shall be deemed to be a Lien on the Real
Estate Assets owned by such Subsidiary or Unconsolidated Entity.


 


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


 


Loan Request. 
See §2.5.


 


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


 


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


 


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


 


Maturity Date. 
December 20, 2006, or such earlier date on which the Loans shall
become due and payable pursuant to the terms hereof.


 


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


 


(i) the Total Commitment and


 


(ii) the sum of


 


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


 


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


 


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


 


12

















 


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


 


Moody’s. Moody’s Investors Service, Inc. or its
successors.


 


Moody’s Rating. 
The rating for the Company’s senior long-term unsecured debt assigned by
Moody’s.


 


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


 


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


 


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


 


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


 


Net Offering Proceeds.  All cash proceeds received after December 31, 2003 by the
Borrower or the Company as a result of the sale of common, preferred or other
classes of stock of the Company or the issuance of limited partnership
interests in the Borrower less customary costs and discounts of issuance paid by
Company or Borrower in connection therewith.


 


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


 


13

















 


other
than Borrower or a Guarantor or other Related Company or their respective
agents or representatives.


 


Notes.  See
§2.3.


 


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


 


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


 


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


 


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


 


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


 


Permitted Investments Cap.  See §8.2.


 


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


 


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


 


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


 


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


 


14

















 


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


 


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


 


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


 


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


 


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


 


Prepayment Date. 
See §3.3.


 


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


 


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


 


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


 


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


 


15

















 


control
of the economic benefits of such mortgaged properties, and holds an option to
purchase such mortgaged properties.


 


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


 


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


 


Register. 
See §19.3.


 


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


 


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


 


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


 


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


 


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


 


S&P. 
Standard & Poor’s Ratings Group, a division of The McGraw-Hill
Companies, Inc., or its successors.


 


S&P Rating. 
The rating for the Company’s senior long-term unsecured debt assigned by
S&P.


 


16

















 


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


 


Structured Finance Collateral Asset.  Each Structured Finance Investment set forth
on Schedule 1.1, as such Schedule may be amended or supplemented from
time to time, and any other Structured Finance Investment which, at the date of
determination, (i) is beneficially owned in whole or in part by Borrower or one
of the Guarantors; (ii) is unencumbered by any Liens; (iii) (A) if a Mortgage
Loan, is not greater than ninety (90) days past due, (B) if a loan secured by
partnership or membership interests or a membership agreement, is not greater
than ninety (90) days past due, or (C) if a preferred equity Investment, there
are no dividends in arrears for a period of more than ninety (90) days; (iv) is
pledged to the Agent for the benefit of the Lenders as Collateral to secure the
Obligations, and (v) is approved as a “Structured Finance Collateral Asset” by
the Requisite Lenders in their sole discretion (which shall not be unreasonably
delayed).  Each asset which satisfies
the conditions set forth in this definition shall be deemed to be a Structured
Finance Collateral Asset only during such periods of time as Borrower has
included the same on the list of Structured Finance Collateral Assets attached
to the most recent Compliance Certificate delivered hereunder.


 


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


 


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


 


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


 


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


 


17

















 


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


 


Term Loan Facility. The Indebtedness of the Borrower
and the Guarantors under that certain Amended and Restated Credit and Guaranty
Agreement, dated as of February 6, 2003, among the Borrower, certain of
the Guarantors, the lenders party thereto, and Wells Fargo Bank, National
Association, as administrative agent, as amended by a First Amendment and a
Second Amendment thereto dated June 5, 2003 and December 16, 2003,
respectively, and as the same may be amended, supplemented or modified from
time to time, and any refinancing thereof.


 


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


 


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


 


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


 


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


 


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


 


18

















 


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


 


1221 Avenue of the Americas Owner. Rock-McGraw,
Inc., a New York corporation (“Rock-McGraw”), the fee owner of the premises
located at 1221 Avenue of the Americas, New York, New York as of
December 16, 2003, or any successor to Rock-McGraw as fee owner of the
premises located at 1221 Avenue of the Americas, New York, New York.


 


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


 


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


 


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


 


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


 


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


 


Unsecured Revolving Credit Facility.  The $300,000,000 unsecured credit facility
established pursuant to the Amended and Restated Revolving Credit and Guaranty
Agreement dated as of March 17, 2003 among Borrower, the guarantors party
thereto, the lenders party thereto, and Fleet National Bank, as Administrative
Agent for the lenders party thereto, as amended by a First Amendment thereto
dated December 16, 2003, and as it may have been or may be amended,
modified or supplemented from time to time.


 


19

















 


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


 


Unused Amount. See §4.2


 


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


 


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


 


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


 


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


 


§1.2.                       Rules of
Interpretation.


 


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


 


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


 


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


 


20

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


§2.                                REVOLVING
SECURED CREDIT FACILITY


 


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


 


§2.2.                       Changes in Total Commitment.  (a)  Provided that no Default or Event of Default
has occurred and is continuing, the Borrower shall have the option at any time
and on one occasion prior to December 20, 2005, to request an increase in
the Total Commitment by an amount not to exceed $25,000,000 by written notice
to the Agent.  Upon receipt of such
notice,


 


21

















 


the
Agent shall consult with Arranger and shall notify the Borrower of the amount
of facility fees to be paid to any Lenders who provide an Additional Commitment
in connection with such increase in the Total Commitment.  If the Borrower agrees to pay the facility
fees so determined, then the Agent shall send a notice to all Lenders (the
“Additional Commitment Request Notice”) informing them of the Borrower’s
request to increase the Total Commitment and of the facility fees to be paid
with respect thereto.  Each Lender who
desires in its sole discretion to provide an Additional Commitment upon such
terms shall provide Agent with a written commitment letter specifying the
amount of the Additional Commitment which it is willing to provide prior to
such deadline as may be specified in the Additional Commitment Request
Notice.  If the requested increase is
oversubscribed then the Agent and the Arranger shall allocate the Commitment
Increase among the Lenders who provide such commitment letters on such basis as
the Agent and the Arranger shall determine in their sole discretion.  If the Additional Commitments so provided
are not sufficient to provide the full amount of the Commitment Increase
requested by the Borrower, then the Agent may, but shall not be obligated to,
invite one or more Eligible Assignees to become a Lender and provide an
Additional Commitment.  If Agent does
invite one or more Eligible Assignees to become a Lender and if following any
such invitation, the amounts committed are still not sufficient to provide the
full amount of the Commitment Increase requested by Borrower, the Commitment
Increase shall be reduced to the aggregate of the amounts committed.  The Agent shall provide all Lenders with a
notice setting forth the amount, if any, of the Additional Commitment to be
provided by each Lender and the revised Commitment Percentages which shall be
applicable after the effective date of the Commitment Increase specified
therein (the “Commitment Increase Date”).


 


(b) On the Commitment Increase Date the outstanding
principal balance of the Loans shall be reallocated among the Lenders such that
after the Commitment Increase Date the outstanding principal amount of Loans
owed to each Lender shall be equal to such Lender’s Commitment Percentage (as
in effect after the Commitment Increase Date) of the outstanding principal
amount of all Loans.  On the Commitment
Increase Date those Lenders whose Commitment Percentage is increasing shall
advance the funds to the Agent and the funds so advanced shall be distributed
among the Lenders whose Commitment Percentage is decreasing as necessary to
accomplish the required reallocation of the outstanding Loans.  The funds so advanced shall be Base Rate
Loans until converted to LIBOR Rate Loans which are allocated among all Lenders
based on their Commitment Percentages. 
To the extent such reallocation results in certain Lenders receiving
funds which are applied to LIBOR Rate Loans prior to the last day of the applicable
Interest Period, then the Borrower shall pay to the Agent for the account of
the affected Lenders the Fixed Rate Prepayment Fee which shall be determined
separately for each such Lender in the manner set forth in §3.3.


 


(c)  The
Borrower shall have the right at any time upon at least ten (10) Business Days’
prior written notice to the Agent (which shall promptly notify each Lender), to
reduce by $1,000,000 or an integral multiple of $1,000,000 in excess thereof
the unborrowed portion of the then Total Commitment, provided that the Total Commitment
shall not be reduced to less than $50,000,000, whereupon the Commitments of the
Lenders shall be reduced pro rata in accordance with their respective
Commitment Percentages by the amount specified in such notice. Upon the
effective date of any such reduction, the Borrower shall pay to the Agent for
the respective accounts of the Lenders the full amount of any commitment fee
required under §4.2


 


22

















 


then
accrued and unpaid on the amount of the reduction. No reduction of the
Commitments may be reinstated.


 


(d)  Upon the
effective date of  each increase or
reduction in the Total Commitment pursuant to this §2.2, the parties shall
enter into an amendment of this Agreement revising Schedule 1.2, and the
Borrower shall execute and deliver to the Agent new Notes for each Lender whose
Commitment has changed so that the maximum principal amount of such Lender’s
Note shall equal its Commitment.  The
Agent shall promptly deliver such replacement Notes to the respective Lenders
in exchange for the Notes replaced thereby which shall be surrendered by such
Lenders.  Such new Notes shall provide
that they are replacements for the surrendered Notes and that they do not
constitute a novation, shall be dated as of the effective date of such increase
or reduction in the Total Commitment, as applicable, and shall otherwise be in
substantially the form of the replaced Notes. On the date of issuance of any
new Notes pursuant to this §2.2(d), the Borrower shall deliver an opinion of
counsel, addressed to the Lenders and the Agent, relating to the due
authorization, execution and delivery of such new Notes and the enforceability
thereof, substantially in the form of the relevant portions of the opinion
delivered pursuant to §10.6. The surrendered Notes shall be canceled and
returned to the Borrower.


 


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


 


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


 


§2.4.                       Interest on
Loans.


 


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


 


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


 


23

















 


Borrower
of such determination (which determination shall be conclusive and binding upon
Borrower absent manifest error).


 


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


 


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


 


§2.5.                       Requests
for Loans.


 


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


 


24

















 


shall
promptly determine whether all of the conditions contained in §11 have been met
or waived.  If no such notice is given
by any Lender or if following such notice the Requisite Lenders determine that
the conditions contained in §11 have been met or waived, or, in any event, if
all conditions in §11 have in fact been met or waived, Agent shall notify the
Lenders that each  of the Lenders shall
be obligated to fund its Commitment Percentage of the requested Loans.  Each such Loan Request shall be irrevocable
and binding on the Borrower and the Borrower shall be obligated to accept the
Loan requested from the Lenders on the proposed Borrowing Date. Each Loan
Request shall be in a minimum aggregate amount of $1,000,000 or an integral
multiple of $100,000 in excess thereof.  
The Borrower shall be allowed up to two (2) Loan Requests per month.


 


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


 


§2.6.                       Conversion
Options.


 


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


 


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


 


25

















 


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


 


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


 


§2.7.                       Funds for Loans.


 


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


 


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


 


26

















 


§3.                                REPAYMENT
OF THE LOANS


 


§3.1.                       Maturity.  The
Borrower unconditionally promises, in accordance with, and subject to, the
provisions of the Loan Documents, to pay on the Maturity Date, and there shall
become absolutely due and payable on the Maturity Date, all of the Loans
outstanding on such date, together with any and all accrued and unpaid interest
and charges thereon.


 


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


 


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


 


(a)                                  Fixed Rate Prepayment Fee.  Borrower acknowledges that prepayment or
acceleration of a LIBOR Rate Loan during an Interest Period shall result in the
Lenders incurring additional costs, expenses and/or liabilities and that it is
extremely difficult and impractical to ascertain the extent of such costs,
expenses and/or liabilities.  (For all
purposes of this Section, any Loan not being made as a LIBOR Rate Loan in
accordance with the Loan Request therefor,


 


27

















 


as
a result of Borrower’s cancellation thereof, shall be treated as if such LIBOR
Rate Loan had been prepaid.)  Therefore,
on the date a LIBOR Rate Loan is prepaid or the date all sums payable hereunder
become due and payable, by acceleration or otherwise (“Prepayment Date”),
Borrower will pay to Agent, for the account of each Lender, (in addition to all
other sums then owing), an amount (“Fixed Rate Prepayment Fee”) determined by
the Agent as follows: The current rate for United States Treasury securities
(bills on a discounted basis shall be converted to a bond equivalent) with a
maturity date closest to the end of the Interest Period as to which prepayment
is made, shall be subtracted from the interest rate applicable to the LIBOR
Rate Loan being prepaid.  If the result
is zero or a negative number, there shall be no Fixed Rate Prepayment Fee.  If the result is a positive number, then the
resulting percentage shall be multiplied by the amount of the LIBOR Rate Loan
being prepaid.  The resulting amount
shall be divided by 360 and multiplied by the number of days remaining in the
Interest Period as to which the prepayment is being made. The resulting amount
shall be the Fixed Rate Prepayment Fee.


 


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


 


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


 


§4.                                CERTAIN
GENERAL PROVISIONS


 


§4.1.                       [Intentionally Omitted].


 


§4.2.                       Commitment
Fee.  The Borrower shall pay to the Agent for the accounts of the Lenders in
accordance with their respective Commitment Percentages a commitment fee
calculated at the rate of 25 basis points per annum on the average daily amount
by which the Total Commitment (as it may have been increased or reduced
pursuant to §2.2) exceeds the Outstanding Obligations (such excess, the “Unused
Amount”).  The commitment fee shall be
payable on the basis of the applicable annual rate quarterly in arrears on or
before the third Business Day of each calendar quarter for the immediately
preceding calendar quarter commencing on April 1, 2004, with a final
payment on the Maturity Date or any earlier date on which the Commitments shall
terminate.


 


§4.3.                       Funds for
Payments.


 


(a)                                  All payments of principal, interest, closing
fees, commitment fees and any other amounts due hereunder (other than as
provided in §4.1, §4.5 and §4.6) or under any of the other Loan Documents, and
all prepayments, shall be made to the Agent, for the respective


 


28

















 


accounts
of the Lenders, at the Agent’s Head Office, in each case in Dollars in
immediately available funds.


 


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


 


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


 


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


 


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


 


§4.5.                       Additional
Costs, Etc.  If any change from and after the date hereof in any present or future
applicable law which expression, as used herein, includes statutes, rules and
regulations thereunder and interpretations thereof by any competent court or by
any governmental or other regulatory body or official charged with the
administration or the interpretation thereof and


 


29

















 


requests,
directives, instructions and notices at any time or from time to time hereafter
made upon or otherwise issued to any Lender or the Agent by any central bank or
other fiscal, monetary or other authority (whether or not having the force of
law), shall:


 


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


 


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


 


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


 


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


 


and
the result of any of the foregoing is


 


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


 


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


 


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


 


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


 


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


 


30

















 


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


 


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


 


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


 


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


 


§4.10.                 Inability to Determine LIBOR Rate.  In
the event, prior to the commencement of any Interest Period relating to any
LIBOR Rate Loan, the Agent shall reasonably determine that adequate and
reasonable methods do not exist for ascertaining the LIBOR Rate that would
otherwise determine the rate of interest to be applicable to any LIBOR Rate
Loan during any Interest Period, the Agent shall forthwith give notice of such
determination (which shall be conclusive and binding on the Borrower) to the
Borrower. In such event (a) any Loan Request with respect to LIBOR Rate Loans
shall be automatically withdrawn and shall be deemed a request for Base Rate
Loans, (b) each then outstanding LIBOR Rate Loan will automatically, on the
last day of the then current Interest Period thereof, become a Base Rate Loan,
and (c) the obligations of the Lenders to make LIBOR Rate Loans shall be
suspended until the Agent


 


31

















 


determines
in good faith that the circumstances giving rise to such suspension no longer
exist, whereupon the Agent shall so notify the Borrower.


 


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


 


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


 


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


 


§5.1.                       Structured Finance Collateral Assets.  The
Borrower represents and warrants that each of the Structured Finance Collateral
Assets listed on Schedule 1.1 will on the Effective Date satisfy all of
the conditions set forth in the definition of Structured Finance Collateral
Asset. The Lenders confirm that each of the Structured Finance Collateral
Assets  listed on Schedule 1.1 is,
on the Effective Date, accepted as a Structured Finance Collateral Asset. From
time to time during the term of this Agreement, upon the written consent of the
Requisite Lenders in their sole discretion (which consent shall not be
unreasonably delayed), additional assets may become


 


32

















 


Structured
Finance Collateral Assets and certain assets which previously satisfied the
conditions set forth in the definition of Structured Finance Collateral Asset
may cease to be Structured Finance Collateral Assets by virtue of payment of
the underlying obligations, creation of Liens or other reasons.  There shall be attached to each Compliance
Certificate delivered pursuant to §7.4(d) or §7.13 an updated listing of the
Structured Finance Collateral Assets relied upon by the Borrower in computing
the covenants set forth in numbered paragraph 4 of such Compliance Certificate.
Compliance Certificates delivered pursuant to §2.5(a) shall include an updated
listing of the Structured Finance Collateral Assets and shall include such
updated listing whenever a redetermination of 
the Structured Finance Collateral Asset Values for all Structured
Finance Collateral Assets based on such an updated listing would result in a
material decrease (from that shown on the most recently delivered Compliance
Certificate) in the Structured Finance Collateral Asset Values for all
Structured Finance Collateral Assets by virtue of payment of the underlying
obligations, creation of Liens or other reasons.


 


§5.2.                       Waivers by Requisite Lenders.    If any asset fails to satisfy any of the
requirements contained in the definition of Structured Finance Collateral Asset
then such asset may nevertheless be deemed to be a Structured Finance
Collateral Asset hereunder if the Requisite Lenders in their sole discretion
vote to accept such asset as a Structured Finance Collateral Asset.


 


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


 


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


 


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


 


§5.6.                       Additional
Guarantors.    (a)  If Borrower desires that an asset owned by a Related Company
which is not previously a Guarantor become a Structured Finance Collateral
Asset, then as a condition thereto such Related Company (x) shall be a direct
or indirect Subsidiary of  Borrower or
any Guarantor, and (y) shall become a Guarantor upon delivery to the Agent of
the following, all in form and substance reasonably satisfactory to the Agent:
(i) a supplement to this Agreement executed and delivered by such proposed
Guarantor assenting to be bound by all the


 


33

















 


terms
of the Loan Documents as a Guarantor, and (ii) good standing certificates,
general partner certificates, secretary certificates, opinions of counsel and
such other documents as may be reasonably requested by the Agent.  The Agent shall promptly provide copies of
said documents to the Lenders.


 


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


 


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


 


§6.1.                       Authority; Etc.


 


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


 


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


 


34

















 


any
breach or contravention of any provision of law, statute, rule or regulation to
which such Guarantor is subject or any judgment, order, writ, injunction,
license or permit applicable to such Guarantor and (iv) do not conflict with
any provision of such Guarantor’s charter documents or bylaws, partnership
agreement, declaration of trust, or any agreement (except agreements as to
which such a conflict would not result in a Material Adverse Effect) or other
instrument binding upon such Guarantor or to which any of such Guarantor’s
properties are subject.


 


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


 


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


 


§6.3.                       Title to
Properties.


 


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


 


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


 


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


 


(a)  A
balance sheet of the Company as of December 31, 2002, and a statement of
operations and statement of cash flows of the Company for the fiscal year then
ended, a balance


 


35

















 


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


 


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


 


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


 


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


 


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


 


36

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


37

















 


meets
the requirements of Section 857 of the Internal Revenue Code.  The common stock of the Company is listed
for trading on the New York Stock Exchange.


 


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


 


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


 


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


 


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


 


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


 


(b) The Borrower, the Guarantors and the Related
Companies have not, at any time, and, to the actual knowledge of the Borrower,
no other Person has at any time, used,


 


38

















 


handled,
stored, buried, retained, refined, transported, processed, manufactured,
generated, produced, spilled, released, allowed to seep, escape or leach, or
pumped, poured, emitted, emptied, discharged, injected, dumped, transferred or
otherwise disposed of, any Hazardous Materials at or about the Real Estate
Assets or any other real property owned or occupied by the Borrower, any
Guarantor or any Related Company, except (i) for use and storage for use of
reasonable amounts of ordinary supplies and other substances customarily used
in the operation of commercial office buildings; provided, however,  that such use and/or
storage for use is in substantial compliance with applicable Environmental Law,
or (ii) where such action is not reasonably expected to have a Material Adverse
Effect.


 


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


 


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


 


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


 


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


 


§6.21.                 [Intentionally
Omitted].


 


§6.22.                 Indebtedness.  The
Borrower and the Guarantors have no Indebtedness except (a) as set forth on
Schedule 6.22 hereto and (b) as otherwise permitted by this
Agreement.  Schedule 6.22 hereto
accurately sets forth the outstanding principal amounts and the maturity dates
of all


 


39

















 


Indebtedness
for borrowed money of the Borrower and the Guarantors and certain of the
Related Companies and identifies the holders of the obligations thereunder as
of the Effective Date.


 


§6.23.                 Title/Status of Structured Finance Assets.


 


(a)                                  [Intentionally Omitted].


 


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


 


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


 


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


 


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


 


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


 


(g)                                 [Intentionally Omitted].


 


40

















 


(h)                                 Neither Borrower nor any of the Guarantors
nor any of their Subsidiaries has received notice that any real property
underlying a Structured Finance Collateral Asset violates or fails to conform
with any law, ordinance, regulation, standard, license or certificate in any
manner that would cause a Material Adverse Effect.


 


(i)                                     [Intentionally Omitted].


 


(j)                                     [Intentionally Omitted].


 


(k)                                  [Intentionally Omitted].


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


41

















 


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


 


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


 


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


 


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


 


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


 


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


 


(c) 
[Intentionally Omitted];


 


(d) 
simultaneously with the delivery of the financial statements referred to
in subsections (a) and (b) above, a Compliance Certificate signed by a
Responsible Officer of the Company (on behalf of the Borrower) and setting
forth in reasonable detail computations


 


42

















 


evidencing
compliance with the covenants contained herein and (if applicable)
reconciliations to reflect changes in Generally Accepted Accounting Principles
since the relevant date;


 


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


 


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


 


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


 


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


 


§7.5.                       Notices.


 


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


 


(b) 
Environmental Events.  The
Borrower will promptly notify the Agent in writing (and the Agent shall
promptly thereafter notify the Lenders) of any of the following events: (i)
upon Borrower’s obtaining knowledge of any violation of any Environmental Law
regarding any property which is subject to any Structured Finance Collateral
Asset or any Real


 


43

















 


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


 


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


 


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


 


(e)  Notice
of Rating Changes.  The Borrower will
promptly notify the Agent in writing (and the Agent shall promptly thereafter
notify the Lenders) of the occurrence of any change in the Moody’s Rating, in
the S&P Rating, or in the Fitch Rating.


 


44

















 


§7.6.                       Existence; Maintenance of REIT Status;
Maintenance of Properties.  The Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its status as a
“qualified real estate investment trust” under §856 of the Code and the
existence of Borrower as a Delaware limited partnership.  The common shares of beneficial interest of
the Company will at all times be listed for trading on either the New York
Stock Exchange or one of the other major stock exchanges.  The Borrower will do or cause to be done all
things necessary to preserve and keep in full force all of its rights and
franchises which in the judgment of the Borrower may be necessary to properly
and advantageously conduct the businesses being conducted by it, the Company,
any of the Guarantors or any of the Related Companies. The Borrower (a) will
cause all of the properties used or useful in the conduct of the business of
Borrower, the Company, any of the Guarantors or any of the Related Companies to
be maintained and kept in good condition, repair and working order and supplied
with all necessary equipment, (b) will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Borrower may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times,
and (c) will continue to engage primarily in the businesses now conducted by it
and in related businesses.


 


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


 


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


 


§7.9.                       Inspection of Properties and Books.  The
Borrower shall permit the Lenders, through the Agent or any of the Lenders’
other designated representatives, to examine and review any of the
documentation related to any of the Structured Finance Collateral Assets, to
examine the books of account of the Borrower, the Company, the other Guarantors
and the Related Companies (and to make copies thereof and extracts therefrom)
and to discuss the affairs,


 


45

















 


finances
and accounts of the Borrower with, and to be advised as to the same by, its
officers, all at such reasonable times and intervals as the Agent or any Lender
may reasonably request.


 


§7.10.                 Compliance with Laws, Contracts,
Licenses, and Permits.  The Borrower and the Company will comply, and
will cause each Guarantor and all Related Companies to comply, with (a) all
applicable laws and regulations now or hereafter in effect wherever its
business is conducted, including all Environmental Laws, (b) the provisions of
all applicable partnership agreements, charter documents and by-laws, (c) all
agreements and instruments to which it is a party or by which it or any of its
Real Estate Assets may be bound including Ground Leases, and (d) all applicable
decrees, orders, and judgments except (with respect to (a) through (d) above)
to the extent such non-compliance would not have a Material Adverse Effect. If
at any time any permit or authorization from any governmental Person shall
become necessary or required in order that the Borrower or any Guarantor may
fulfill or be in compliance with any of its obligations hereunder or under any
of the other Loan Documents, the Borrower will immediately take or cause to be
taken all reasonable steps within the power of the Borrower to obtain such
authorization, consent, approval, permit or license and furnish the Agent and
the Lenders with evidence thereof.


 


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


 


§7.12.                 [Intentionally
Omitted].


 


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


 


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


 


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


 


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


 


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


 


46

















 


§7.15.                 Environmental Indemnification.  The
Borrower and the Guarantors jointly and severally covenant and agree that they
will indemnify and hold harmless the Agent and each Lender from and against any
and all claims, expense, damage, loss or liability incurred by the Agent or any
Lender (including all reasonable costs of legal representation incurred by the
Agent or any Lender, but excluding, as applicable, for the Agent or a Lender
any claim, expense, damage, loss or liability as a result of the gross
negligence or willful misconduct of the Agent or such Lender) relating to (a)
any Release or threatened Release of Hazardous Materials on any property
subject to any Structured Finance Collateral Asset or any Real Estate; (b) any
violation of any Environmental Laws with respect to conditions at any property
subject to any Structured Finance Collateral Asset or any Real Estate or the
operations conducted thereon; or (c) the investigation or remediation of
off-site locations at which the Borrower or its predecessors are alleged to
have directly or indirectly disposed of Hazardous Materials. It is expressly
acknowledged by the Borrower and the Guarantors that this covenant of
indemnification shall survive the payment of the Loans and shall inure to the
benefit of the Agent and the Lenders, and their successors and assigns.


 


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


 


§7.17.                 Employee
Benefit Plans.


 


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


 


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


 


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


 


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


 


47

















 


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


 


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


 


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


 


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


 


§7.20.                 Title/Status of Structured Finance Assets.


 


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


 


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


 


48

















 


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


 


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


 


§8.1                          [Intentionally
Omitted].


 


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


 


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


 


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


 


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


 


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


 


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


 


(f) 
[Intentionally Omitted];


 


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


 


(h) Investments in the following categories so long
as the aggregate amount, without duplication, of all Investments described in
this paragraph (h) does not exceed, at any


 


49

















 


time,
twenty-five percent (25%) of Total Assets (the “Permitted Investments Cap”) and
the aggregate amount of each of the following categories of Investments does
not exceed the specified percentage of Total Assets set forth in the following
table:


 


	
  Category
  of Investment

  	
   

  	
  Maximum Percentage of Total Assets

  
	
  Permitted Developments (calculated at total project cost)

  	
   

  	
  10%

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

  	
   

  	
  20%

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

  	
   

  	
  2%

  
	
  Structured Finance Investments

  	
   

  	
  15%

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

  	
   

  	
  10%

  
	
  Other Investments not otherwise specifically identified in this §8.2

  	
   

  	
  10%

  



 


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


 


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


 


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


 


50

















 


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


 


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


 


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


 


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


 


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


 


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


 


§8.8.                       Preferred
Redemptions.  No payments of cash or cash equivalents by
Borrower or the Company as consideration for the mandatory redemption or
retirement of any preferred


 


51

















 


shares
of beneficial interest in the Company, or any preferred units of limited
partnership interest in Borrower, shall be made out of the proceeds of
Indebtedness of the Borrower or any Guarantor.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


52

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


53

















 


§10.4.                 Incumbency Certificate; Authorized
Signers.  The Agent shall have received from the Company an incumbency
certificate, dated as of the Effective Date, signed by a duly authorized
officer of the Company and giving the name and bearing a specimen signature of
each individual who shall be authorized: 
(a) to sign, in the name and on behalf of the Company (in its own
capacity and as general partner on behalf of Borrower and on behalf of each
Guarantor which is a partnership), each of the Loan Documents to which the
Borrower or any Guarantor is or is to become a party; (b) to make Loan Requests
and Conversion Requests; and (c) to give notices and to take other action on
behalf of the Borrower under the Loan Documents.


 


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


 


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


 


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


 


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


 


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


 


§11.1.                 Representations True; No Event of
Default; Compliance Certificate.  Each of the representations and warranties of
the Borrower and each Guarantor contained in this Agreement, the other Loan
Documents or in any document or instrument delivered pursuant to or in
connection with this Agreement shall be true as of the date as of which they
were made and shall also be true at and as of the time of the making of such
Loan, with the same effect as if made at


 


54

















 


and
as of that time (except (i) to the extent of changes resulting from
transactions contemplated or permitted by this Agreement and the other Loan
Documents, (ii) to the extent of changes occurring in the ordinary course of
business that singly or in the aggregate are not materially adverse, and (iii)
to the extent that such representations and warranties relate expressly to an
earlier date); the Borrower shall have performed and complied with all terms
and conditions herein required to be performed by it or prior to the Borrowing
Date of such Loan; and no Default or Event of Default shall have occurred and
be continuing on the date of any Loan Request or on the Borrowing Date of such
Loan.  Each of the Lenders shall have
received a Compliance Certificate of the Borrower signed by a Responsible
Officer to such effect, which certificate will include, without limitation,
computations evidencing compliance with the covenants contained in §9.1 through
§9.5 after giving effect to such requested Loan.


 


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


 


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


 


§12.                          EVENTS
OF DEFAULT; ACCELERATION; ETC


 


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


 


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


 


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


 


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


 


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


 


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


 


55

















 


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


 


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


 


56

















 


in
or to which Borrower, any Guarantor or any Related Company has made a
Structured Finance Investment shall not be considered Indebtedness for purposes
of this § 12.1(g);


 


(h)  (i) any
of the Borrower, the Company or any Guarantor shall make an assignment for the
benefit of creditors, or admit in writing its inability to pay or generally
fail to pay its debts as they mature or become due, or shall petition or apply
for the appointment of a trustee or other custodian, liquidator or receiver of
any substantial part of its properties or shall commence any case or other
proceeding under any bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution or liquidation or similar law of any
jurisdiction, now or hereafter in effect, or shall take any action to authorize
or in furtherance of any of the foregoing, or if any such petition or
application shall be filed or any such case or other proceeding shall be
commenced against any such Person and such Person shall indicate its approval
thereof, consent thereto or acquiescence therein, or (ii) any of the events
described in clause (i) of this paragraph shall occur with respect to any other
Related Company or any Unconsolidated Entity and such event shall have a
Material Adverse Effect;


 


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


 


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


 


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


 


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


 


57

















 


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


 


(n)  the
Borrower shall fail to pay, observe or perform any term, covenant, condition or
agreement contained in any agreement, document or instrument evidencing, securing
or otherwise relating to any Indebtedness of the Borrower to any Lender (other
than the Obligations) within any applicable period of grace provided for in
such agreement, document or instrument;


 


(o)  any
Material Adverse Effect shall occur;


 


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


 


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


 


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


 


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


 


§12.3.                 Remedies.  In
case any one or more of the Events of Default shall have occurred, and whether
or not the Requisite Lenders shall have accelerated the maturity of the Loans
pursuant to §12.1, each Lender, if owed any amount with respect to the Loans,
may, with the consent of the Requisite Lenders, direct the Agent to proceed to
protect and enforce the rights and remedies of the Agent and the Lenders under
this Agreement, the Notes, the Collateral Documents or any of the other Loan
Documents by suit in equity, action at law or other appropriate proceeding,
whether for the specific performance of any covenant or agreement


 


58

















 


contained
in this Agreement, the Collateral Documents, the other Loan Documents or any
instrument pursuant to which the Obligations are evidenced and, if any amount
shall have become due, by declaration or otherwise, to proceed to enforce the
payment thereof or any other legal or equitable right of such Lender. No remedy
herein conferred upon any Lender or the Agent or the holder of any Note is
intended to be exclusive of any other remedy and each and every remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or
now or hereafter existing at law or in equity or by statute or any other provision
of law.


 


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


 


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


 


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


 


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


 


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


 


§13.                          SETOFF.  During
the continuance of any Event of Default, any deposits (general or specific,
time or demand, provisional or final, regardless of currency, maturity, or the
branch of where such deposits are held) or other sums credited by or due from
any of the Lenders or any Affiliated Lender to the Borrower, the Company or any
of the other Guarantors and any securities or other property of the Borrower,
the Company or any of the other Guarantors in the possession of such Lender or
Affiliated Lender may be applied to or set off against the payment of
Obligations and any and all other liabilities, direct, or indirect, absolute or
contingent, due or to become due, now existing or hereafter arising, of the
Borrower to such Lender. Each of the Lenders agrees with each other Lender that
(a) if an amount to be set off is to be applied to Indebtedness of the
Borrower, the Company or any of the other Guarantors to such Lender, other than
Indebtedness evidenced by the Notes held by such Lender, such amount shall be
applied ratably to such other Indebtedness and to the Indebtedness evidenced by
all such Notes held by


 


59

















 


such
Lender, and (b) if such Lender shall receive from the Borrower, the Company or
any of the other Guarantors, whether by voluntary payment, exercise of the
right of setoff, counterclaim, cross action, enforcement of the claim evidenced
by the Notes held by such Lender by proceedings against the Borrower, the
Company or any of the other Guarantors at law or in equity or by proof thereof
in bankruptcy, reorganization, liquidation, receivership or similar
proceedings, or otherwise, and shall retain and apply to the payment of the
Note or Notes held by such Lender any amount in excess of its ratable portion
of the payments received by all of the Lenders with respect to the Notes held
by all of the Lenders, such Lender will make such disposition and arrangements
with the other Lenders with respect to such excess, either by way of
distribution, pro tanto assignment of claims, subrogation or otherwise as shall
result in each Lender receiving in respect of the Notes held by it its
proportionate payment as contemplated by this Agreement; provided that if all
or any part of such excess payment is thereafter recovered from such Lender,
such disposition and arrangements shall be rescinded and the amount restored to
the extent of such recovery, but without interest.


 


§14.                          THE AGENT


 


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


 


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


 


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


 


§14.4.                 No
Representations.  The Agent shall not be responsible for the
execution or validity or enforceability of this Agreement, the Notes, any of
the other Loan Documents or any instrument at any time constituting, or
intended to constitute, collateral security for the Notes, or for the value of
any such collateral security or for the validity, enforceability or
collectibility of any such amounts owing with respect to the Notes, or for any
recitals or statements, warranties or


 


60

















 


representations
made herein or in any of the other Loan Documents or in any certificate or
instrument hereafter furnished to it by or on behalf of the Borrower, or be
bound to ascertain or inquire as to the performance or observance of any of the
terms, conditions, covenants or agreements herein or in any instrument at any
time constituting, or intended to constitute, collateral security for the
Notes. The Agent shall not be bound to ascertain whether any notice, consent,
waiver or request delivered to it by the Borrower or any Guarantor or any holder
of any of the Notes shall have been duly authorized or is true, accurate and
complete. The Agent has not made nor does it now make any representations or
warranties, express or implied, nor does it assume any liability to the
Lenders, with respect to the credit worthiness or financial condition of the
Borrower, the Company or any of the other Guarantors. Each Lender acknowledges
that it has, independently and without reliance upon the Agent or any other
Lender, and based upon such information and documents as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender has either (x) been independently represented by
separate counsel on all matters regarding this Agreement or (y) knowingly
waived any such representation.


 


§14.5.                 Payments.


 


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


 


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


 


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


 


61

















 


interest,
fees or otherwise, to the remaining nondelinquent Lenders for application to,
and reduction of, their respective pro rata shares of all outstanding
Loans.  The Delinquent Lender hereby
authorizes the Agent to distribute such payments to the nondelinquent Lenders
in proportion to their respective pro rata shares of all outstanding Loans. A
Delinquent Lender shall be deemed to have satisfied in full a delinquency when
and if, as a result of application of the assigned payments to all outstanding
Loans of the nondelinquent Lenders, the Lenders’ respective pro rata shares of
all outstanding Loans have returned to those in effect immediately prior to
such delinquency and without giving effect to the nonpayment causing such
delinquency.


 


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


 


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


 


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


 


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


 


§14.9.                 Resignation.  The
Agent may resign at any time by giving sixty (60) days, prior written notice
thereof to the Lenders and the Borrower; provided, however, that unless an
Event of Default has occurred and is continuing, Fleet National Bank may not
voluntarily resign as Agent under the provisions of this Agreement without the
Borrower’s consent.  Upon any such resignation,
the Requisite Lenders shall have the right to appoint a successor Agent.  Unless a Default or Event of Default shall
have occurred and be continuing, appointment of such successor Agent shall be
subject to the reasonable approval of the Borrower.  If no successor Agent shall have been so appointed by the
Requisite Lenders and shall have accepted such


 


62

















 


appointment
within thirty (30) days after the giving of notice of resignation or removal or
if the Borrower (to the extent it has approval rights with respect to the
successor Agent) has disapproved or failed to approve a successor agent within
such period, then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent, which shall be a financial institution having a rating of not
less than A2/P2 or its equivalent by S&P. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations as Agent hereunder.  After any retiring Agent’s resignation, the provisions of this
Agreement and the other Loan Documents shall continue in effect for its benefit
in respect of any actions taken or omitted to be taken by it while it was
acting as Agent.


 


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


 


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


 


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


 


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


 


63

















 


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


 


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


 


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


 


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


 


(ii)                                  against any Collateral sold or disposed of by
the Borrower or a Guarantor or paid off by the underlying borrower or obligor,
or no longer necessary to satisfy the Maximum Credit Amount limitation, which
Collateral is specified to the Agent by the Borrower upon at least seven (7)
days written notice, provided that (x) for so long as no Event of Default has
occurred and is continuing, the principal amount of the Obligations is prepaid
to the extent necessary to make the principal amount of the Obligations not
more than the Maximum Credit Amount after giving effect to the release of the
Collateral (as certified to by the chief financial officer of the Borrower),
and (y) during the occurrence and continuance of an Event of Default, (i) the


 


64

















 


Obligations are prepaid in an amount equal to 100%
of the proceeds received by the Borrower from the sale or other disposition of
such Collateral and (ii) the consent of the Requisite Lenders is obtained; and


 


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


 


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


 


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


 


65

















 


reasonable inspection of the Structured Finance Collateral Assets. The
covenants of this §15 shall survive payment or satisfaction of payment of
amounts owing with respect to the Notes.


 


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


 


§17.                          SURVIVAL
OF COVENANTS, ETC.  All
covenants, agreements, representations and warranties made herein, in the
Notes, in any of the other Loan Documents or in any documents or other papers
delivered by or on behalf of the Borrower or any Guarantor pursuant hereto
shall be deemed to have been relied upon by the Lenders and the Agent,
notwithstanding any investigation heretofore or hereafter made by it, and shall
survive the making by the Lenders of the Loans, as herein contemplated, and
shall continue in full force and


 


66

















 


effect so long as any amount due under this Agreement or the Notes or
any of the other Loan Documents remains outstanding or the Lenders have any
obligation to make any Loans. The indemnification obligations of the Borrower
and the Guarantors provided herein and the other Loan Documents shall survive
the full repayment of amounts due and the termination of the obligations of the
Lenders hereunder and thereunder to the extent provided herein and therein. All
statements contained in any certificate or other paper delivered to the Agent
or any Lender at any time by or on behalf of the Borrower or any of the Guarantors
pursuant hereto or in connection with the transactions contemplated hereby
(other than third party reports, such as engineering reports and environmental
studies) shall constitute representations and warranties by the Borrower or any
of the Guarantors hereunder.


 


§18.                          GUARANTY.


 


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


 


§18.2.                 Obligations
Unconditional.  The obligations of the Guarantors
hereunder are absolute and unconditional, irrespective of the value,
genuineness, validity, regularity or enforceability of any of the Guaranteed
Obligations or any of the Loan Documents, or any other agreement or instrument
referred to therein, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge or defense of a surety or
guarantor.  Each Guarantor agrees that
this Guaranty may be enforced by the Agent, on behalf of the Lenders, without
necessity at any time of resorting to or exhausting any other security or
collateral and without the necessity at any time of having recourse to the
Notes, any other of the Loan Documents or the Collateral, and each Guarantor hereby
waives the right to require the Lenders to proceed against the Borrower or any
other Person (including a co-guarantor) or to require the Lenders to pursue any
other remedy or enforce any other right. 
Each Guarantor further agrees that it shall have no right of
subrogation, indemnity, reimbursement or contribution against the Borrower or
any other Guarantor of the Guaranteed Obligations for amounts paid under this
Guaranty until such time as the Lenders have been paid in full, all Commitments
under this Agreement have been terminated, and no Person or governmental
authority shall have any right to request any return or reimbursement of funds
from the Lenders in connection with monies received under the Loan Documents.  Each Guarantor further agrees that nothing
contained herein shall prevent the Agent or the Lenders from suing on the Notes
or any of the other Loan Documents or foreclosing their security interest in or
Lien on the Collateral or from exercising any other rights available to them
under this Agreement, the Notes, any other of the Loan Documents, or any other
instrument of security, if any, and the exercise of any of the aforesaid rights
and the completion of any foreclosure proceedings shall not constitute a
discharge of any Guarantor’s obligations hereunder; it being


 


67

















 


the purpose and intent of each Guarantor that its obligations hereunder
shall be absolute, independent and unconditional under any and all
circumstances.  Neither any Guarantor’s
obligations under this Guaranty nor any remedy for the enforcement thereof
shall be impaired, modified, changed or released in any manner whatsoever by an
impairment, modification, change, release or limitation of the liability of the
Borrower or by reason of the bankruptcy or insolvency of the Borrower.  Each Guarantor waives any and all notice of
the creation, renewal, extension or accrual of any of the Guaranteed
Obligations and notice of or proof of reliance by, the Agent or any Lender upon
this Guaranty or acceptance of this Guaranty. 
The Guaranteed Obligations, and any of them, shall conclusively be
deemed to have been created, contracted or incurred, or renewed, extended,
amended or waived, in reliance upon this Guaranty.  All dealings between the Borrowers and any of the Guarantors, on
the one hand, and the Agent and the Lenders, on the other hand, likewise shall
be conclusively presumed to have been had or consummated in reliance upon this
Guaranty.


 


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


 


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


 


68

















 


§18.5.                 Reinstatement.  The
obligations of the Guarantors under this §18  shall
be automatically reinstated if and to the extent that for any reason any
payment by or on behalf of any Person in respect of the Guaranteed Obligations
is rescinded or must be otherwise restored by any holder of any of the
Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and each Guarantor agrees that it will indemnify
the Agent and each Lender on demand for all reasonable costs and expenses
(including, without limitation, reasonable fees of counsel) incurred by the
Agent or such Lender in connection with such rescission or restoration,
including any such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent transfer or
similar payment under any bankruptcy, insolvency or similar law.


 


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


 


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


 


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


 


§19.                          ASSIGNMENT;
PARTICIPATIONS; ETC.


 


§19.1.                 Conditions
to Assignment by Lenders. 
Except as provided herein, each Lender may assign to one or more
Eligible Assignees all or a portion of its interests, rights and obligations
under this Agreement (including all or a portion of its Commitment Percentage
and Commitment and the same portion of the Loans at the time owing to it, and
the Notes held by it); provided that (a) the Agent shall have given its prior
written consent to such assignment, which consent shall not be unreasonably
withheld or delayed, except that such consent shall not be


 


69

















 


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


 


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


 


70

















 


§19.3                    Register.  The
Agent shall maintain a copy of each Assignment and Acceptance delivered to it
and a register or similar list (the “Register”) for the recordation of the
names and addresses of the Lenders and the Commitment Percentages of, and
principal amount of the Loans owing to the Lenders from time to time. The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, the Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower and
the Lenders at any reasonable time and from time to time upon reasonable prior
notice.  From and after the Effective
Date, upon each such recordation, the assigning Lender agrees to pay to the
Agent a registration fee in the sum of $3,500.00. The Agent may, without action
by any other party, amend Schedules 1 and 1.2 hereto to reflect the recording
of any such assignments and shall immediately forward a copy of any such
amendment to Borrower and each Lender.


 


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


 


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


 


71

















 


vote of the Lender as to waivers, amendments or modifications that
would reduce the principal of or the interest rate on any Loans, extend the
term or increase the amount of the Commitment of such Lender as it relates to
such participant, reduce the amount of any fees to which such participant is
entitled or extend any regularly scheduled payment date for principal or
interest, and (e) no participant which is not a Lender hereunder shall have the
right to grant further participations or assign its rights, obligations or
interests under such participation to other Persons without the prior written
consent of the Agent. The Agent shall promptly advise the Borrower in writing
of any such sale or participation.


 


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


 


§19.7.                 No
Assignment by Borrower.  Neither the Borrower nor any
Guarantor shall assign or transfer any of its rights or obligations under any
of the Loan Documents without the prior written consent of each of the Lenders,
and any such attempted assignment or transfer without such consent shall be
null and void.


 


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


 


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


 


§20.                          NOTICES,
ETC.


 


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


 


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


 


72

















 


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


 


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


 


Any such notice or demand shall be deemed to have
been duly given or made and to have become effective (i) if delivered by hand,
overnight courier or facsimile to a responsible officer of the party to which
it is directed, at the time of the receipt thereof by such officer or the
sending of such facsimile and (ii) if sent by registered or certified
first-class mail, postage prepaid, on the third Business Day following the
mailing thereof.  Rejection of or
refusal to accept any such notice or demand, or inability to deliver any such
notice or demand because of changed address or because no notice of changed
address was given, shall be deemed to be receipt of such notice or demand.


 


§21.                          GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE.


 


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


 


73

















 


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


 


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


 


§24.                          ENTIRE
AGREEMENT.  The Loan Documents and any other
documents executed in connection herewith or therewith express the entire
understanding of the parties with respect to the transactions contemplated
hereby. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated, except as provided in §26.


 


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


 


§26.                          CONSENTS,
AMENDMENTS, WAIVERS, ETC.  Except as
otherwise specifically set forth herein or in any other Loan Document, any
consent or approval required or permitted by this Agreement may be given, and
any term of this Agreement or of any other instrument related hereto or
mentioned herein may be amended, and the performance or observance by the
Borrower and the Guarantors of any terms of this Agreement or such other instrument
or the continuance of any Default or Event of Default may be waived (either
generally or in a particular instance and either retroactively or
prospectively) with, but only with, the written consent of the Requisite
Lenders, and, in the case of amendments, with the written consent of the
Borrower other than amendments to schedules made in the ordinary course as
contemplated by this Agreement. Notwithstanding the foregoing, (i) the rate of
interest on, and the term or amount of, the Notes or the date of any payment
due hereunder or thereunder, (ii) the amount of the Commitments of the Lenders
(other than changes in Commitments pursuant to Assignments under §19 or
pursuant to changes in the Total Commitment under §2.2), (iii) the


 


74

















 


amount of any fee payable to a Lender hereunder, (iv) any provision
herein or in any of the Loan Documents which expressly requires consent of all
the Lenders (including this §26), (v) the funding provisions of §2.5 and §2.7,
(vi) the rights, duties and obligations of the Agent specified in §14, (vii)
clause (iv) of the definition of Structured Finance Collateral Asset, and
(viii) the definitions of Majority Lenders or Requisite Lenders, may not be
amended or compliance therewith waived without the written consent of each
Lender affected thereby, nor may the Agent release the Borrower or any
Guarantor from its liability with respect to the Obligations (other than
pursuant to §18.8), without first obtaining the written consent of all the
Lenders.  Unless otherwise directed by
the Agent, any request for amendment or waiver shall be made on no less than
ten (10) Business Days notice to the Lenders. Unless otherwise directed by the
Agent, the failure of a Lender to respond to a request for waiver or amendment
shall be deemed to constitute such Lender’s consent to such waiver or amendment
requested (unless such waiver or amendment requires the consent of all
Lenders).  No waiver shall extend to or
affect any obligation not expressly waived or impair any right consequent
thereon. No course of dealing or delay or omission on the part of the Agent or
any Lender in exercising any right shall operate as a waiver thereof or
otherwise be prejudicial thereto. No notice to or demand upon the Borrower
shall entitle the Borrower to other or further notice or demand in similar or
other circumstances.


 


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


 


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


 


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


 


§29.1.                 Existing
Credit Agreement Superseded. 
This Agreement shall supersede the Existing Credit Agreement in its
entirety, except as provided in this § 29.  On the Effective Date, the rights and obligations of the parties
under the Existing Credit Agreement and the “Notes” defined therein shall be
subsumed within and be governed by this Agreement and the Notes, provided,
however, that any of the “Loans” (as defined in the Existing Credit
Agreement) outstanding under the Existing Credit Agreement shall, for purposes
of this Agreement, be Loans hereunder. 
This Agreement is given as a substitution of, and not as a payment of,
the obligation of Borrower under the Existing Credit Agreement and is not
intended to constitute a novation of the Existing Credit Agreement.  The Lenders’ interests in such Loans shall
be reallocated on the Effective Date in accordance with each Lender’s
applicable Commitment Percentage in order that, after giving effect thereto,
the Lenders shall have outstanding Loans representing their


 


75

















 


portion of the Total Commitment, as described on Schedule 1.2,
and the Lenders shall make appropriate payments to each other in order to
accomplish such reallocation.  In
connection therewith, the Borrower shall compensate and indemnify the Lenders
as provided in §4.8 of the Existing Credit Agreement as if such payments by the
Lenders to each other were prepayments by the Borrower of the “Loans” (as defined
in the Existing Credit Agreement) outstanding under the Existing Credit
Agreement.


 


§29.2.                 Return
and Cancellation of Notes. 
Upon its receipt of the Notes to be delivered hereunder on the Effective
Date, each Lender will promptly return to Borrower, marked “Cancelled” or
“Replaced”, the notes of Borrower held by such Lender pursuant to the Existing
Credit Agreement.


 


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


 


 


[The remainder of this page intentionally
left blank]


 


76

















 


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


 


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  	
   

  
	
   

  	
  SL GREEN OPERATING PARTNERSHIP, L.P.,

  a Delaware limited partnership

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:  Andrew S. Levine

  
	
   

  	
   

  	
  Title:    Executive Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GUARANTOR:

  
	
   

  	
   

  	
   

  
	
   

  	
  SL GREEN REALTY CORP.,

  a Maryland corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:  Andrew S. Levine

  
	
   

  	
   

  	
  Title:   Executive Vice President

  



 

















 


	
   

  	
  GUARANTOR:

  
	
   

  	
   

  	
   

  
	
   

  	
  GREEN 1412 PREFERRED LLC,

  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:  Andrew S. Levine

  
	
   

  	
   

  	
  Title:    Executive Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  GUARANTOR:

  
	
   

  	
   

  	
   

  
	
   

  	
  SL GREEN FUNDING LLC,

  a New York limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:  Andrew S. Levine

  
	
   

  	
   

  	
  Title:    Executive Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GUARANTOR:

  
	
   

  	
   

  	
   

  
	
   

  	
  469 PREFERRED MEMBER LLC,

  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:  Andrew S. Levine

  
	
   

  	
   

  	
  Title:    Executive Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GUARANTOR:

  
	
   

  	
   

  	
   

  
	
   

  	
  SLG 500-512 FUNDING LLC,

  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:  Andrew S. Levine

  
	
   

  	
   

  	
  Title:    Executive Vice President

  



 

















 


	
   

  	
  GUARANTOR:

  
	
   

  	
   

  	
   

  
	
   

  	
  SLG 40 WALL FUNDING LLC,

  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:  Andrew S. Levine

  
	
   

  	
   

  	
  Title:    Executive Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GUARANTOR:

  
	
   

  	
   

  	
   

  
	
   

  	
  SLG PENNCOM FUNDING LLC,

  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GUARANTOR:

  
	
   

  	
   

  	
   

  
	
   

  	
  SLG 609 FUNDING LLC,

  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:  Andrew S. Levine

  
	
   

  	
   

  	
  Title:    Executive Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GUARANTOR:

  
	
   

  	
   

  	
   

  
	
   

  	
  SLG EAB FUNDING LLC,

  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:  Andrew S. Levine

  
	
   

  	
   

  	
  Title:    Executive Vice President

  



 

















 


	
   

  	
  GUARANTOR:

  
	
   

  	
   

  	
   

  
	
   

  	
  SLG 50 WEST PARTICIPATION LLC,

  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:  Andrew S. Levine

  
	
   

  	
   

  	
  Title:    Executive Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GUARANTOR:

  
	
   

  	
   

  	
   

  
	
   

  	
  SLG 1370 FUNDING LLC,

  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:  Andrew S. Levine

  
	
   

  	
   

  	
  Title:    Executive Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GUARANTOR:

  
	
   

  	
   

  	
   

  
	
   

  	
  SL GREEN WEST 26th FUNDING LLC,

  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:  Andrew S. Levine

  
	
   

  	
   

  	
  Title:    Executive Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GUARANTOR:

  
	
   

  	
   

  	
   

  
	
   

  	
  GREEN 225 PENN BLDG LLC,

  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  GUARANTOR:

  
	
   

  	
   

  	
   

  
	
   

  	
  SL GREEN 11 MADISON FUNDING LLC,

  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:  Andrew S. Levine

  
	
   

  	
   

  	
  Title:    Executive Vice President

  



 

















 


	
   

  	
  ADMINISTRATIVE AGENT AND

  COLLATERAL AGENT:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  FLEET NATIONAL BANK,

  	
   

  
	
   

  	
   

  	
  As Administrative Agent and Collateral Agent

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  LENDER:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  FLEET NATIONAL BANK,

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  LENDER:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  WACHOVIA BANK NATIONAL ASSOCIATION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  LENDER:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SOVEREIGN BANK

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 

















 


	
   

  	
  LENDER:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  COMMERZBANK AG NEW YORK BRANCH

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  LENDER:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 

















 


SCHEDULE 1


 


Lenders; Domestic and LIBOR Lending Offices


 


FLEET
NATIONAL BANK


100
Federal Street


Boston,
MA 02110


Attn:                    Structured Real Estate


Fax:                           (617) 434-1337


Tel:                            (617) 434-8501


 


WACHOVIA
BANK NATIONAL ASSOCIATION


Wachovia
Securities


301
S. College Street, NC5604


Charlotte,
NC 28288


Attn:
Rex Rudy


Tel:
704-383-6506


Fax:
704-383-6205


 


SOVEREIGN
BANK


75
State Street


MA 1SST 0411


Boston, MA 02109


Attn: T. Gregory Donohue


Fax: (617) 757-5652


Tel: (617) 757-5578


 


COMMERZBANK AG, NEW YORK BRANCH


2 World Financial Center


New York, New York 10281-1050


Attn:  Marcus Perry


Fax: (212) 266-7565


Tel: (212) 266-7646


 


THE BANK OF NEW YORK


One Wall Street, 21st Floor


New York, New York 10286


Attn: Anthony Filorimo


Fax: (212) 809-9526


Tel: (212) 635-7519


 

















 


SCHEDULE 1.1


 


Structured Finance
Collateral Assets


 


	
   

  	
   

  	
  ASSET

  	
   

  	
  OWNERSHIP

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.

  	
   

  	
  609 MB LLC Mezzanine Loan Investment

  	
   

  	
  SLG 609 Funding LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  40 Wall Street LLC Junior Participation Loan Investment

  	
   

  	
  SLG 40 Wall Funding LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Shefaa Sub, LLC Mezzanine Loan Investment

  	
   

  	
  SLG 500-512 Funding LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Galaxy LI Junior Mezz LLC Participation Loan Investment

  	
   

  	
  SLG EAB Funding LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Matana LLC Junior Participation Loan Investment

  	
   

  	
  SLG 50 West Participation LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  1370 Owners LLC Mezzanine Loan Investment

  	
   

  	
  SLG 1370 Funding LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  601 Mezz Borrower 2 LLC Mezzanine Loan Investment

  	
   

  	
  SL Green West 26th Funding LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
   

  	
  Pennsylvania Building Company, L.P. Mezzanine Loan Investment

  	
   

  	
  Green 225 Penn Bldg LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
   

  	
  11 Madison Avenue LLC Mezzanine Loan Investment

  	
   

  	
  SL Green 11 Madison Funding LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
   

  	
  Green 1412 Preferred LLC Equity Investment

  	
   

  	
  SL Green Operating Partnership, L.P.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  11.

  	
   

  	
  JER 1412 Broadway, LLC Equity Investment

  	
   

  	
  Green 1412 Preferred LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  12.

  	
   

  	
  2 GCT Funding LLC Equity Investment

  	
   

  	
  SL Green Funding LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  13.

  	
   

  	
  469 Member LLC Equity Investment

  	
   

  	
  469 Preferred Member LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  14.

  	
   

  	
  Penncom Partners, LLC Equity Investment

  	
   

  	
  SLG Penncom Funding LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  15.

  	
   

  	
  Pennsylvania Building Company LLC Equity Investment

  	
   

  	
  Green 225 Penn Bldg LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  16.

  	
   

  	
  601 West Associates LLC Equity Investment

  	
   

  	
  SL Green West 26th Funding LLC

  



 

















 


SCHEDULE 1.2


 


Commitments and Commitment Percentages


 


 


	
  Financial
  Institution

  	
   

  	
  Commitment

  	
   

  	
  Commitment Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Fleet
  National Bank

  	
   

  	
  $

  	
  28,333,334

  	
   

  	
  22.666672

  	
  %

  
	
  Wachovia
  Bank National Association

  	
   

  	
  $

  	
  28,333,333

  	
   

  	
  22.666672

  	
  %

  
	
  Commerzbank
  AG

  	
   

  	
  $

  	
  28,333,333

  	
   

  	
  22.666672

  	
  %

  
	
  Sovereign
  Bank

  	
   

  	
  $

  	
  25,000,000

  	
   

  	
  20.000000

  	
  %

  
	
  The Bank of
  New York

  	
   

  	
  $

  	
  15,000,000

  	
   

  	
  12.000000

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOTALS

  	
   

  	
  $

  	
  125,000,000

  	
   

  	
  100

  	
  %

  



 

















 


EXHIBIT
A


 


FORM OF REVOLVING LOAN NOTE


 


	
  Lender: 

  	
   

  	
  New York, New York

  
	
  Commitment: 

  	
   

  	
  March 22, 2004

  



 


FOR VALUE RECEIVED, the undersigned, SL GREEN
OPERATING PARTNERSHIP, L.P. a limited partnership duly organized and validly
existing under the laws of the State of Delaware (the “Borrower”), hereby
unconditionally promises to pay, in accordance with, and subject to, the
provisions of the Credit Agreement (as hereinafter defined), to the order of
the Lender stated above (the “Lender”) at the office of Fleet National Bank
located at 100 Federal Street, Boston, Massachusetts 02110, in lawful money of
the United States of America and in immediately available funds, on the
Maturity Date a principal amount equal to the lesser of (a) the Commitment
stated above and (b) the aggregate outstanding principal amount of the Loans
from time to time made by the Lender to the Borrower pursuant to the Credit
Agreement (as hereinafter defined.)  The
Borrower further agrees to pay interest in like money at such office on the
unpaid principal amount hereof from time to time outstanding at the rates and
on the dates specified in the Credit Agreement.


 


The holder of this Note is authorized to endorse on
the schedules annexed hereto and made a part hereof, the date, Type and amount
of the Loans made by the Lender pursuant to the Credit Agreement and the date
and amount of each payment or prepayment of principal thereof, each
continuation thereof, each conversion of all or a portion thereof to another
Type and, in the case of LIBOR Rate Loans, the length of each Interest Period
with respect thereto.  Each such
endorsement shall constitute prima  facie evidence of the accuracy
of the information endorsed.  The
failure to make any such endorsement shall not affect the obligation of
Borrower to repay the Loans in accordance with the terms of the Credit
Agreement.


 


This Note (a) is one of the Notes referred to in the
Second Amended and Restated Revolving Secured Credit and Guaranty Agreement
dated as of March 22, 2004 (as amended, supplemented or otherwise modified
from time to time, the “Credit Agreement”), among the Borrower, the Guarantors
signatory thereto, the Lenders signatory thereto, Fleet National Bank, as
Administrative Agent for the Lenders, Wachovia Bank National Association, as
syndication agent for the Lenders, Sovereign Bank and Commerzbank AG New York
Branch, as co-documentation agents for the Lenders, The Bank of New York, as
managing agent for the Lenders, and Fleet Securities, Inc. and Wachovia Capital
Markets, LLC, as co-arrangers, and is subject to the provisions of the Credit
Agreement and (b) is


 


A-1

















 


subject to optional and mandatory prepayment in whole or in part as
provided in the Credit Agreement.


 


Upon the occurrence of any one or more of the Events
of Default, all amounts then remaining unpaid on this Note shall become, or may
be declared to be, immediately due and payable, all as provided in the Credit
Agreement.


 


All parties now and hereafter liable with respect to
this Note hereby waive presentment, demand, protest and all other notices of
any kind, except as otherwise expressly provided in the Credit Agreement.


 


Unless otherwise defined herein, terms defined in
the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement.


 


A-2

















 


THIS NOTE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.


 


	
   

  	
  SL GREEN OPERATING PARTNERSHIP, L.P.,

  
	
   

  	
  a Delaware limited partnership

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  SL GREEN REALTY CORP..

  
	
   

  	
   

  	
  a Maryland corporation,

  its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


A-3

















 


SCHEDULE 1


To REVOLVING LOAN NOTE


 


LOANS, CONVERSIONS AND PAYMENTS OF BASE RATE
LOANS


 


	
  Date

  	
   

  	
  Amount of

  Base Rate

  Loans

  	
   

  	
  Amount of

  Principal

  Repaid

  	
   

  	
  Amount Of 

  Base Rate

  Loans

  Converted

  to LIBOR

  Rate Loans

  	
   

  	
  Unpaid

  Principal

  Balance Of

  Base Rate

  Loans

  	
   

  	
  Notation

  Made By

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-4

















 


SCHEDULE 1


To REVOLVING LOAN NOTE


 


LOANS, CONVERSIONS AND PAYMENTS OF LIBOR RATE
LOANS


 


	
  Date

  	
   

  	
  Amount of

  LIBOR Rate

  Loans

  	
   

  	
  Amount of

  Principal

  Repaid

  	
   

  	
  Amount Of

  LIBOR Rate

  Loans

  Converted

  to Base

  Rate Loans

  	
   

  	
  Unpaid

  Principal

  Balance Of

  LIBOR Rate

  Loans

  	
   

  	
  Notation

  Made By

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-5

















 


FORM OF AMENDED AND RESTATED REVOLVING LOAN
NOTE


 


	
  Lender: 

  	
   

  	
  New York, New York

  
	
  Commitment: 

  	
   

  	
  March     , 2004

  



 


FOR VALUE RECEIVED, the undersigned, SL GREEN
OPERATING PARTNERSHIP, L.P. a limited partnership duly organized and validly
existing under the laws of the State of Delaware (the “Borrower”), hereby
unconditionally promises to pay, in accordance with, and subject to, the
provisions of the Credit Agreement (as hereinafter defined), to the order of
the Lender stated above (the “Lender”) at the office of Fleet National Bank
located at 100 Federal Street, Boston, Massachusetts 02110, in lawful money of
the United States of America and in immediately available funds, on the
Maturity Date a principal amount equal to the lesser of (a) the Commitment
stated above and (b) the aggregate outstanding principal amount of the Loans from
time to time made by the Lender to the Borrower pursuant to the Credit
Agreement (as hereinafter defined.)  The
Borrower further agrees to pay interest in like money at such office on the
unpaid principal amount hereof from time to time outstanding at the rates and
on the dates specified in the Credit Agreement.


 


The holder of this Note is authorized to endorse on
the schedules annexed hereto and made a part hereof, the date, Type and amount
of the Loans made by the Lender pursuant to the Credit Agreement and the date
and amount of each payment or prepayment of principal thereof, each
continuation thereof, each conversion of all or a portion thereof to another
Type and, in the case of LIBOR Rate Loans, the length of each Interest Period
with respect thereto.  Each such
endorsement shall constitute prima  facie evidence of the accuracy
of the information endorsed.  The
failure to make any such endorsement shall not affect the obligation of
Borrower to repay the Loans in accordance with the terms of the Credit
Agreement.


 


This Note amends and restates that certain Note,
dated December 20, 2001, in the original principal amount of
$25,000,000.00, issued by the Borrower to the order of the Lender stated above
and re-evidences, re-confirms and continues all Obligations thereunder as
amended hereby, and it is not intended to constitute, and does not constitute a
novation or satisfaction of the Obligations or be deemed to evidence or
constitute a repayment of all or any portion of such Obligations.


 


This Note (a) is one of the Notes referred to in the
Second Amended and Restated Revolving Secured Credit and Guaranty Agreement
dated as of March     , 2004 (as amended, supplemented
or otherwise modified from time to time, the “Credit Agreement”), among the
Borrower, the Guarantors signatory thereto, the


 


A-6

















 


Lenders signatory thereto, Fleet National Bank, as Administrative Agent
for the Lenders, Wachovia Bank National Association, as syndication agent for
the Lenders, Sovereign Bank and Commerzbank AG New York Branch, as
co-documentation agents for the Lenders, The Bank of New York, as managing
agent for the Lenders, and Fleet Securities, Inc. and Wachovia Capital Markets,
LLC, as co-arrangers, and is subject to the provisions of the Credit Agreement
and (b) is subject to optional and mandatory prepayment in whole or in part as
provided in the Credit Agreement.


 


Upon the occurrence of any one or more of the Events
of Default, all amounts then remaining unpaid on this Note shall become, or may
be declared to be, immediately due and payable, all as provided in the Credit
Agreement.


 


All parties now and hereafter liable with respect to
this Note hereby waive presentment, demand, protest and all other notices of
any kind, except as otherwise expressly provided in the Credit Agreement.


 


Unless otherwise defined herein, terms defined in
the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement.


 


A-7

















 


THIS NOTE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.


 


	
   

  	
  SL GREEN OPERATING PARTNERSHIP, L.P.,

  
	
   

  	
  a Delaware limited partnership

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  SL GREEN REALTY CORP..

  
	
   

  	
   

  	
  a Maryland corporation,

  its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


A-8

















 


SCHEDULE 1


To AMENDED AND RESTATED REVOLVING LOAN NOTE


 


LOANS, CONVERSIONS AND PAYMENTS OF BASE RATE
LOANS


 


	
  Date

  	
   

  	
  Amount of

  Base Rate

  Loans

  	
   

  	
  Amount of

  Principal

  Repaid

  	
   

  	
  Amount Of

  Base Rate

  Loans

  Converted

  to LIBOR

  Rate Loans

  	
   

  	
  Unpaid

  Principal

  Balance Of

  Base Rate

  Loans

  	
   

  	
  Notation

  Made By

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-9

















 


SCHEDULE 1


To AMENDED AND RESTATED REVOLVING LOAN NOTE


 


LOANS, CONVERSIONS AND PAYMENTS OF LIBOR RATE
LOANS


 


	
  Date

  	
   

  	
  Amount of

  LIBOR Rate

  Loans

  	
   

  	
  Amount of

  Principal

  Repaid

  	
   

  	
  Amount Of

  LIBOR Rate

  Loans

  Converted

  to Base

  Rate Loans

  	
   

  	
  Unpaid

  Principal

  Balance Of

  LIBOR Rate

  Loans

  	
   

  	
  Notation

  Made By

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-10

















 


EXHIBIT
B


 


FORM OF LOAN REQUEST


 


,  2004   


 


Fleet
National Bank


100
Federal Street


Boston,
Massachusetts 02110


 


Attention: 
[                              ]


 


Re:                               Second Amended and Restated Revolving Secured
Credit and Guaranty Agreement, dated as of March 22, 2004 (as amended or
supplemented from time to time, the “Credit Agreement”), among SL Green
Operating Partnership, L.P. as Borrower, SL Green Realty Corp. and certain of
its subsidiaries signatory thereto, as Guarantors, the Lenders signatory
thereto, Fleet National Bank, as Administrative Agent for the Lenders and as
Collateral Agent for the Secured Parties, Wachovia Bank National Association,
as Syndication Agent for the Lenders, Sovereign Bank and Commerzbank AG New
York Branch, as Co-Documentation Agents for the Lenders, The Bank of New York,
as Managing Agent for the Lenders, and Fleet Securities, Inc. and Wachovia
Capital Markets LLC, as Co-Arrangers


 


Dear
Sir or Madam:


 


Reference is made to the above-referenced Credit
Agreement (capitalized terms used herein that are not defined herein shall have
the respective meanings ascribed thereto in the Credit Agreement).  The Borrower hereby gives irrevocable notice
of its intention to borrow (the “Borrowing”) the following amounts under the
Credit Agreement as set forth below:


 


1.                                       The Borrowing Date of the proposed Borrowing
is
                                  .


 


2.                                       The aggregate amount of the proposed
Borrowing is
$                             .


 


3.                                       The proposed Borrowing is to be comprised of
$                             
of [LIBOR Rate] [Base Rate] Loans.


 


4.                                       The duration of the Interest Period for the
Loan, if a LIBOR Rate Loan, shall be [seven days or one, two or three months.]


 


B-1

















 


The Borrower hereby certifies that the following
statements are true on the date hereof, and will be true on the date of the
proposed Borrowing, before and after giving effect to the proposed Borrowing:


 


(a)                                  except as otherwise disclosed to the Agent in
writing, the representations and warranties contained in Section 6 of the
Credit Agreement and in the other Loan Documents are true and correct in all
material respects as though made on and as of such date (except to the extent
such representations and warranties relate to a specific date, in which case
they are true and correct in all material respects as of such date);


 


(b)                                 no Default or Event of Default has occurred
and is continuing, or would result from the proposed Borrowing; and


 


(c)                                  the proposed Borrowing will not cause the
aggregate principal amount of Outstanding Obligations to exceed the Maximum
Credit Amount.


 


The Borrower represents and warrants, as of the date
hereof, that after giving effect to the Borrowing requested above, all the
requirements contained in Section 11 of the Credit Agreement are
satisfied.


 


	
   

  	
  SL GREEN OPERATING PARTNERSHIP, L.P.

  
	
   

  	
  A Delaware limited partnership

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  SL GREEN REALTY CORP.,

  
	
   

  	
   

  	
  a Maryland corporation,

  Its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
					



 


B-2

















 


EXHIBIT
C


 


COMPLIANCE CERTIFICATE 


 


This COMPLIANCE
CERTIFICATE is delivered pursuant to that certain Second Amended and
Restated Revolving Secured Credit and Guaranty Agreement, dated as of
March 22, 2004 (as amended or supplemented from time to time, the “Credit
Agreement”), among SL Green Operating Partnership, L.P. as Borrower, SL Green
Realty Corp. and certain of its subsidiaries signatory thereto, as Guarantors,
the Lenders signatory thereto, Fleet National Bank, as Administrative Agent for
the Lenders and as Collateral Agent for the Secured Parties, Wachovia Bank
National Association, as Syndication Agent for the Lenders, Sovereign Bank and
Commerzbank AG New York Branch, as Co-Documentation Agents for the Lenders, The
Bank of New York, as Managing Agent for the Lenders, and Fleet Securities, Inc.
and Wachovia Capital Markets LLC, as Co-Arrangers.  Capitalized terms not defined herein shall have the same meanings
ascribed thereto in the Credit Agreement.


 


1.                                       The Company is the sole general partner of
the Borrower.


 


2.                                       The individual executing this Certificate is
the duly qualified chief operating officer, chief financial officer or
president of the Company and is executing this Certificate on behalf of the
Company and the Borrower, provided, however, that such individual shall incur
no personal liability by reason of the execution of this Certificate.


 


3.                                       The undersigned has reviewed the terms of the
Credit Agreement and has made a review of the transactions, financial condition
and other affairs of the Company, the Borrower, each Guarantor and each of
their respective Subsidiaries as of
                                  ,
20     and the undersigned has no knowledge of the
existence, as of the date hereof, of any condition or event which (i) renders
untrue or incorrect, in any material respect, any of the representations and
warranties contained in Article 6 of the Credit Agreement or in any other
Loan Document (it being understood and agreed that any representation or
warranty which by its terms is made as of a specified date shall be required to
be true and correct only as of such specified date), except as set forth in
Schedule II hereto or as otherwise disclosed to the Agent in writing, or
(ii) constitutes a Default or Event of Default as of the date hereof.


 


4.                                       Schedule I attached hereto accurately
and completely sets forth the financial data, computations and other matters
required to establish whether there has been compliance with the criteria set
forth in the defined terms and the following sections of the Credit Agreement:


 


C-1

















 


(a)                                  Adjusted Unsecured Debt Coverage
(Section 9.1):


 


(b)                                 Minimum Debt Service Coverage
(Section 9.2):


 


(c)                                  Total Debt to Total Assets
(Section 9.3):


 


(d)                                 Minimum Tangible Net Worth
(Section 9.4):


 


(e)                                  Adjusted EBITDA to Fixed Charges
(Section 9.5):


 


(f)                                    Aggregate Occupancy Rate (Section 9.6):


 


(g)                                 Value of All Unencumbered Assets
(Section 9.7):


 


(h)                                 Distributions (Section 8.6):


 


(i)                                     Interest Rate Protection (Section 7.18):
and


 


(j)                                     Updated listing of the Structured Finance
Collateral Assets (Sections 2.5, 7.4(d), 7.13).


 


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


 


The Agent and the Lenders and their respective
successors and assigns may rely on the truth and accuracy of the foregoing in
connection with the extensions of credit to the Borrower pursuant to the Credit
Agreement.


 


C-2

















 


IN WITNESS WHEREOF, the  undersigned
has executed this Compliance Certificate on behalf of the Company and Borrower
this        day of
                   ,
20    .


 


	
   

  	
  SL GREEN REALTY CORP.,

  
	
   

  	
  a Maryland corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SL GREEN OPERATING PARTNERSHIP, L. P.

  
	
   

  	
  a Delaware limited partnership

  
	
   

  	
   

  
	
   

  	
  By:  SL GREEN REALTY CORP.,

  
	
   

  	
  a Maryland corporation,

  
	
   

  	
  its general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
					



 


C-3

















 


EXHIBIT
D


 


SECOND
AMENDED AND RESTATED


 


PLEDGE AND
SECURITY AGREEMENT


 


between


 


 


THE
PLEDGORS PARTY HERETO,


 


as Pledgors


 


and


 


FLEET
NATIONAL BANK as Collateral Agent


 


for the
Secured Parties,


 


as Pledgee


 


 


Dated as of
March 22, 2004


 


D-1

















 


SECOND
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT


 


SECOND AMENDED AND RESTATED PLEDGE AND SECURITY
AGREEMENT, dated as of March     , 2004 (this
“Agreement”), by and between each of the direct and indirect Subsidiaries of SL
Green Operating Partnership, L.P., a Delaware limited partnership (the
“Borrower”), or SL Green Realty Corp., a Maryland corporation (the “Company”),
that is a signatory hereto under the caption “Pledgors” on the signature pages
hereto or from time to time hereafter as a “Pledgor” (each, a “Pledgor” and
together, the “Pledgors”; in contemplation of additional parties becoming
pledgors hereunder, references are made herein to “Pledgors” which, during
periods of time during which only a single pledgor shall exist, shall mean
“Pledgor”), each having its principal place of business and chief executive
office c/o SL Green Realty Corp., 420 Lexington Avenue, New York, New York
10170, and FLEET NATIONAL BANK, a national banking association, as Collateral
Agent for the Secured Parties pursuant to the Credit Agreement defined below (“Pledgee”
or the “Pledgee”), having an office at 100 Federal Street, Boston,
Massachusetts  02110.


 


W I T N E S S E T H:


 


WHEREAS, Pledgee, as Administrative Agent for the
Lenders and Collateral Agent for the Secured Parties, Wachovia Bank National
Association, as Syndication Agent for the Lenders, Sovereign Bank, as
Documentation Agent for the Lenders, the Lenders originally signatory thereto
or that became a Lender (individually, a “Lender”, and, collectively, the
“Lenders”), SL Green Realty Corp., as Guarantor, and SL Green Operating
Partnership, L.P. (“Borrower”) and the Pledgors, as Guarantors, are parties to
an Amended and Restated Revolving Secured Credit and Guaranty Agreement dated
as of December 16, 2003 (as amended, modified or supplemented from time to
time the “Existing Credit Agreement”) which provides, among other things, for
the execution and delivery of the Existing Pledge and Security Agreement (as
defined below) to provide for, among other things, the pledge of Collateral as
described herein by the Pledgor;


 


WHEREAS, each of the Pledgors has secured the
performance of all of the Obligations (as defined in the Existing Credit
Agreement) by, among other things, providing to Pledgee the liens and security
interests set forth in that certain Amended and Restated  Pledge and Security Agreement, dated as of
December 16, 2003 (as amended, modified or supplemented from time to time
the “Existing Pledge and Security Agreement”), between the Pledgors and the Agent,
as Collateral Agent;


 


D-2

















 


WHEREAS, the parties to the Existing Credit
Agreement are amending and restating the Existing Credit Agreement to, among
other things, extend the maturity of the facility provided for therein; and


 


WHEREAS, the parties hereto wish to amend and
restate the Existing Pledge and Security Agreement to continue to secure the
performance of all of the Obligations (as hereinafter defined) by, among other
things, providing to Pledgee, for the benefit of the Secured Parties (as defined
in the Credit Agreement (as hereinafter defined)), the liens and security
interests set forth herein;


 


NOW, THEREFORE, in consideration of the premises and
for other good and valuable consideration, the receipt of which is hereby
acknowledged, the Pledgor hereby agrees with the Pledgee, as follows:


 


Definitions.  Unless the context otherwise requires,
capitalized terms used herein not defined above and that are defined in the
Credit Agreement shall have the respective meanings provided therefor in the
Credit Agreement, and the following terms shall have the following meanings:


 


“Code” shall mean the Uniform Commercial
Code, as enacted in the State of New York, as amended.


 


“Collateral” shall have the meaning set forth
in Section 2 hereof.


 


“Credit Agreement” shall mean the Second
Amended and Restated Revolving Secured Credit and Guaranty Agreement dated as
of March     , 2004, among the Borrower, the
Guarantors, the Lenders, Pledgee, as Administrative Agent for the Lenders and
Collateral Agent for the Secured Parties, Wachovia Bank National Association,
as Syndication Agent for the Lenders, Sovereign Bank and Commerzbank AG New
York Branch, as Co-Documentation Agents for the Lenders, and The Bank of New
York, as Managing Agent for the Lenders, as the same may be from time to time
amended, modified or supplemented.


 


“Default” shall mean any event, act or
condition which with notice or lapse of time, or both, would constitute an
Event of Default.


 


“Event of Default” shall have the meaning set
forth in Section 10 hereof.


 


“Obligations” shall mean (a) the aggregate
unpaid principal amount of, and accrued interest on, any of the Notes; (b) all
other fees and other amounts owing to the Lenders under the Credit Agreement or
other Loan Documents; and (c) any and all indebtedness, obligations and other
liabilities due and owing to the Lenders under the Credit Agreement or other
Loan Documents, arising out of, or in connection with, or otherwise relating to
the Facility, in each case whether now or hereafter existing, direct or
indirect, absolute or contingent, joint, several or independent, due or to
become due, liquidated or unliquidated, held or to be held by


 


D-3

















 


the Pledgee or any of the Lenders and whether created directly or
acquired by assignment or otherwise.


 


“Pledged Interests” shall have the meaning
set forth in Section 2(ii) hereof.


 


Grant of Security Interest, Etc.  As
security for the full and punctual payment and performance of the Obligations
when due (whether upon stated maturity, by acceleration or otherwise), each
Pledgor hereby confirms the grant and pledge to the Pledgee, for the benefit of
the Secured Parties, of a continuing lien on, and security interest in, and
hereby transfers and assigns to the Pledgee, for the benefit of the Secured
Parties, as security, all of the interests of such Pledgor in and to the
following, in each case whether now or hereafter existing or in which such
Pledgor now has or hereafter acquires an interest and wherever the same shall
be located (the “Collateral”):


 


(i)                                     the indebtedness described on Schedule I
hereto (as the same may be from time to time amended or modified), all causes
of action, and judgments in respect of such indebtedness, all documents,
contracts, mortgages, instruments or agreements evidencing such indebtedness,
and all interest, cash, instruments and other property or proceeds from time to
time received, receivable or otherwise distributed in respect of or in exchange
for any or all of such indebtedness (the “Pledged Indebtedness”),


 


(ii)                                  the shares of stock, general or limited
partnership interests, membership interests or other equity interests now held
or hereafter acquired by any Pledgor in any of the Persons identified on Schedule IIA
hereto (as the same may be from time to time amended or modified) including,
without limitation, the equity interests described on Schedule IIB
hereto (collectively, the “Pledged
Equity”, and together with the Pledged Indebtedness, the “Pledged Interests”)
and the certificates representing the Pledged Equity, if any, and issued by the
corporations, general or limited partnerships, limited liability companies or
other entities named therein and any interest of such Pledgor in the entries on
the books of any financial intermediary pertaining to the Pledged Equity, and
all dividends, cash, warrants, rights, instruments and other property or
proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the Pledged Equity, and any right
to vote or manage the business of such Persons pursuant to the organizational
documents governing the rights and obligations of the equity interest holders;


 


(iii) all of the following: (A) all of the Pledgors’
interest in all profits and distributions to which any Pledgor shall at any
time be entitled in respect of the Pledged Interests; (B) all other payments,
if any, due or to become due any Pledgor in respect of the Pledged Interests,
under or arising out of the respective Pledged Interests, or otherwise; (C) all
of the Pledgors’ claims, rights, powers, privileges, authority, options,
security interests, liens


 


D-4

















 


and remedies, if any, under or arising out of the Pledged Interests;
and (D) to the extent permitted by applicable law, all of each Pledgor’s
rights, if any, under the Pledged Interests or at law, to exercise and enforce
every right, power, remedy, authority, option and privilege of any Pledgor
relating to the Pledged Interests, including any power to execute any
instruments and to take any and all other action on behalf of and in the name
of any Pledgor in respect of the Pledged Interests to make determinations, to
exercise any election (including, but not limited to, election of remedies) or
option or to give or receive any notice, consent, amendment, waiver or
approval, together with full power and authority to demand, receive, enforce or
collect any of the foregoing, to enforce or execute any checks, or other
instruments or orders, to file any claims and to take any action in connection
with any of the foregoing; and


 


(iv) to the extent not otherwise included, all proceeds of any or all
of the foregoing.


 


Representations, Warranties and Covenants.  The
Pledgors hereby covenant with, and represent and warrant to, the Secured
Parties as follows:


 


This Agreement and each of the other Loan Documents has been duly
executed and delivered by the parties thereto.


 


The copies of each of the documents identified on Schedule III
hereto, and underlying documents related thereto, which have been previously
delivered to the Pledgee, are true and complete copies of signed counterparts
of such entire documents as in effect on the date hereof and none of such
documents has, as of the date hereof, been further modified or amended.


 


Each Pledgor is duly organized, validly existing and in good standing
in the respective jurisdiction in which it was formed and conducts business
with all powers and material governmental licenses, authorizations, consents
and approvals required to carry on its business as now conducted.


 


The Pledged Interests have been validly acquired by the Pledgors and
are duly and validly pledged hereunder and each Pledgor has the unqualified
right to pledge and grant a security interest therein as herein provided.  Each Pledgor is the legal and beneficial
owner of, and has good title to, its respective Pledged Interests in which it
has granted a lien and security interest pursuant hereto, free and clear of all
claims or security interests of every nature whatsoever, except such as are
created pursuant to this Agreement.  All
consents and approvals required for the execution and delivery of this
Agreement and the consummation of the transactions contemplated by this
Agreement have been obtained.


 


D-5

















 


The principal place of business and chief executive office of each
Pledgor is 420 Lexington Avenue, New York, New York 10170.  No Pledgor will change such principal place
of business or chief executive office or remove such records unless such
Pledgor shall provide the Pledgee with written notice thereof within thirty
(30) days after such change (but in any event, within the period required
pursuant to the Code) and there shall have been taken such action, satisfactory
to the Pledgee, as may be necessary to maintain the security interest of the
Pledgee hereunder at all times fully perfected and in full force and
effect.  No Pledgor shall change its name
or its jurisdiction of incorporation, formation or organization unless such
Pledgor shall have given the Pledgee written notice thereof within thirty (30)
days after such change (but in any event, within the period required pursuant
to the Code) and shall have taken such action, satisfactory to the Pledgee, as
may be necessary to maintain the security interest of the Pledgee in the
Collateral granted hereunder at all times fully perfected and in full force and
effect.


 


Each Pledgor shall deliver to Pledgee a copy of each notice which is of
any substantive effect given or received by it under any of the documents
listed on Schedule III hereto promptly, but in any event within ten (10)
days, after such Pledgor gives or receives such notice.


 


With respect to each document listed on Schedule III hereto, no
Pledgor shall terminate or agree to terminate, or materially amend or modify or
agree to materially amend or modify, any of the documents listed on
Schedule III hereto or waive compliance with any provision thereof;
provided, however, that a Pledgor may amend or modify a document listed on
Schedule III hereto or waive any provision thereof if such Pledgor shall
have obtained the prior written consent of the Pledgee to such amendment,
waiver or modification.  Each Pledgor
will give reasonable prior written notice to the Pledgee prior to entering
into, or agreeing to enter into, any amendment or modification of any of the
documents listed on Schedule III hereto which pertain to such Pledgor and
Pledgee shall not unreasonably withhold or delay any consent to a request for
such amendment or modification.  In the
event of a request for amendment or modification which any Pledgor wishes to
have handled on an expedited basis, such request shall be submitted to Pledgee
as contemplated above and shall be deemed approved after ten (10) Business Days
if the notice to the Pledgee which accompanies the requested amendment or
modification shall contain the following legend:


 


PURSUANT
TO SUBSECTION 3(h) OF THE PLEDGE AND SECURITY AGREEMENT BETWEEN PLEDGOR,
OTHER PLEDGORS AND FLEET NATIONAL BANK 
(“AGENT”) IF PLEDGOR DOES NOT RECEIVE A RESPONSE FROM AGENT TO THIS
REQUEST FOR CONSENT WITHIN TEN (10) BUSINESS DAYS FROM THE DATE OF RECEIPT BY
AGENT OF THIS


 


D-6

















 


REQUEST,
THE REQUEST REFERRED TO HEREIN SHALL BE DEEMED APPROVED.


 


Each Pledgor shall, at its sole cost and expense, keep, observe,
perform and discharge, duly and punctually, all and singular the material
obligations, terms, covenants, conditions, representations and warranties of
the documents listed on Schedule III hereto on the part of each Pledgor to
be kept, observed, performed and discharged. 
Each Pledgor shall hold Pledgee harmless and indemnify it against any
loss or expense (including reasonable attorneys’ fees and disbursements) that
Pledgee may incur or sustain by reason of the failure on such Pledgor’s part to
so perform and observe the Collateral Documents or to satisfy, perform and
observe such conditions thereunder.


 


[Intentionally deleted].


 


The Pledgors will defend the Pledgee’s right, title and interest in and
to the Pledged Interests and in and to the Collateral pledged by them pursuant
hereto or in which Pledgors granted a security interest pursuant hereto against
the claims and demands of all other persons.


 


No Pledgor will, without the consent of Pledgee, sell, assign, or
otherwise dispose of, or mortgage, pledge or grant a security interest in, any
of the Collateral or any interest therein, or suffer any of the same to exist,
and any sale, assignment, mortgage, pledge or security interest whatsoever made
in violation of this covenant shall be a nullity and of no force and effect,
and upon demand of the Pledgee, shall forthwith be canceled or satisfied by an
appropriate instrument in writing.  Without
limiting the generality of the foregoing, each Pledgor will, within thirty (30)
days after such Pledgor or any of its partners, members, officers or directors
have actual notice thereof, discharge or cause to be discharged as a lien of
record by payment or filing of the bond required by law, or otherwise, any
judgment, tax or other involuntary liens as to which no right to contest or
opportunity to cure is elsewhere provided in the Loan Documents, filed or
otherwise asserted against the Collateral, and any proceedings for the
enforcement thereof; provided, however, such Pledgor shall have the right to
contest in good faith and with reasonable diligence the validity of any such
judgment liens or tax or other such involuntary liens upon the filing of such bond
or, if no such bond is required by law to be filed, establishing reserves equal
to the full amount in dispute in accordance with Generally Accepted Accounting
Principles.  If such Pledgor fails to so
discharge or bond or contest liens in the manner provided above, then the
Pledgee may, but shall not be required to, after an Event of Default procure
the release and discharge of any such lien and any judgment or decree thereon,
and in furtherance thereof may, in its sole discretion, effect any settlement
or compromise or furnish any security or indemnity as may be required.  Such Pledgor shall reimburse Pledgee, upon
demand, for any reasonable amounts expended by Pledgee in connection with the
provisions of this subparagraph and all such reasonable amounts expended by the


 


D-7

















 


Pledgee hereunder shall be secured by this Agreement.  In settling, compromising or arranging for
the discharge of any liens under this subparagraph, Pledgee shall not be
required to establish or confirm the validity or amount thereof.


 


There is no agreement with, or instrument, statute, rule, regulation,
decree or judgment of, any administrative or judicial body of any jurisdiction,
known to Pledgors, affecting the rights of Pledgors in and to the Collateral.


 


The execution, delivery, and performance by each Pledgor of this
Agreement and of the other Loan Documents to which it is a party (i) are within
such Pledgor’s powers, (ii) have been duly authorized by all necessary action,
and (iii) do not violate or create a default under any requirement of law, any
judgment, order or decree applicable to such Pledgor, such Pledgor’s
organization documents or any contractual obligation binding on or affecting
such Pledgor or its property.


 


No material authorization or approval or other action by, and no
material notice to or filing or registration with, any governmental authority
or regulatory body is required in connection with the execution, delivery, and
performance by any Pledgor of this Agreement or the other Loan Documents to
which it is a party.


 


This Agreement, and any other Loan Documents to which any Pledgor is a
party, constitutes a legal, valid, and binding obligation of such Pledgor
enforceable in accordance with its terms, except as enforcement thereof may be
subject to equitable principles and applicable bankruptcy, creditors’ rights
and similar laws.


 


There is no action, suit, or proceeding, or any governmental
investigation or any arbitration, in each case pending or, to the knowledge of
any Pledgor, threatened against any Pledgor or any of its material property
before any court or arbitrator or any governmental or administrative body,
agency, or official (i) which challenges the validity of this Agreement or any
of the other Loan Documents or (ii) which if adversely determined, and taking
into account any insurance with respect thereto, would have a material adverse
effect on such Pledgor.


 


Special Provisions Concerning the Pledgors. 
Each Pledgor covenants and agrees that:


 


Except as permitted by the Credit Agreement, it will not merge or
consolidate voluntarily with any other Person or voluntarily liquidate, wind
up, dissolve or suffer any liquidation or dissolution (in whole or in part),
discontinue the business of such Pledgor, or sell, transfer or otherwise
dispose of, in one transaction or series of transactions, all or a substantial
part of such Pledgor’s assets, whether now or hereafter acquired.


 


D-8

















 


It will not engage in any business which is substantially different
from the ownership and operation of the assets owned by such Pledgor as of the
date hereof.


 


It will not make incur, assume or suffer to exist, directly or
indirectly, (i) any Indebtedness other than the Indebtedness disclosed on the
financial statement delivered pursuant to the Credit Agreement or Indebtedness
otherwise permitted under the Credit Agreement, or (ii) any lien on or security
interest in any of such Pledgor’s assets or properties other than as permitted
under the Credit Agreement.


 


It has not and shall not: (i) intentionally deleted; (ii) intentionally
deleted; (iii) intentionally deleted; (iv) fail to preserve its existence as an
entity duly organized, validly existing and in good standing (if applicable)
under the laws of the jurisdiction of its organization or formation, or without
the prior written consent of Pledgee, amend, modify, terminate or fail to
comply with the provisions of such Pledgor’s partnership agreement, articles of
organization, operating agreement or similar organizational documents, as the
case may be, as they may be further amended or supplemented, if such amendment,
modification, termination or failure to comply would adversely affect the
ability of such Pledgor to perform its obligations hereunder or under the other
Loan Documents; (v) intentionally omitted; (vi) commingle its assets with the
assets of any of its general partners, managing members, shareholders,
affiliates, principals or any other Person; (vii) intentionally omitted; (viii)
fail to maintain its records, books of account and bank accounts separate and
apart from those of the general partners, managing members, shareholders,
principals and affiliates of such Pledgor, the affiliates of a general partner
or managing member of such Pledgor, and any other person or entity; (ix) enter
into any contract or agreement with any general partner, managing member,
shareholder, principal or affiliate of such Pledgor, except upon terms and
conditions that are intrinsically fair and substantially similar to those that
would be available on an arms-length basis with third parties other than any
general partner, managing member, shareholder, principal or affiliate of such
Pledgor; (x) seek the dissolution or winding up in whole, or in part, of such
Pledgor; (xi) maintain its assets in such a manner that it will be costly or
difficult to segregate, ascertain or identify its individual assets from those
of any general partner, managing member, shareholder, principal or affiliate of
such Pledgor; (xii) hold itself out to be responsible for the debts of another
Person; (xiii) intentionally omitted; (xiv) fail either to hold itself out to
the public as a legal entity separate and distinct from any other Person or to
conduct its business solely in its own name in order not (a) to mislead others
as to the identity with which such other party is transacting business, or (b)
to suggest that such Pledgor is responsible for the debts of any third party
(including any general partner, managing member, shareholder, principal or
affiliate of such Pledgor), (xv) fail to maintain adequate capital for the
normal obligations reasonably foreseeable in a business of its size and
character


 


D-9

















 


and in light of its contemplated business operations; or (xvi) file or
consent to the filing of any petition, either voluntary or involuntary, to take
advantage of any applicable insolvency, bankruptcy, liquidation or
reorganization statute, or make an assignment for the benefit of creditors.


 


Distributions.


 


Unless an Event of Default shall have occurred, and is continuing, each
Pledgor at any time may receive and retain and, to the extent permitted by the
Credit Agreement, distribute to its owners all distributions with respect to
its interest in the Pledged Interests.


 


After an Event of Default shall have occurred, if a Pledgor at any time
shall be entitled to receive any cash distributions with respect to any Pledged
Interest, such amount shall, immediately upon receipt by each Pledgor, be
remitted to Pledgee for application to the Obligations in accordance with the
provisions of the Credit Agreement and until so remitted shall be received and
held by each Pledgor in trust for Pledgee for the benefit of the Secured Parties.  In the event a non-cash distribution shall
be paid or made to any Pledgor in respect of any of the Pledged Interests
related thereto, such Pledgor shall receive such distribution in trust for the
sole purpose of forthwith delivering such distribution in kind (appropriately
endorsed if necessary) to the Pledgee, to be added to the Collateral.


 


If any Pledgor shall become entitled to receive or shall receive any
instrument, certificate, option or right, as an addition to and in respect of,
in substitution of, or in exchange for, any Pledged Interest or any part
thereof, such Pledgor shall hold such item as the agent and in trust for the
Pledgee for the benefit of the Secured Parties, and shall deliver it forthwith
to the Pledgee in the exact form received, with the Pledgor’s endorsement or
assignment or other instrument as the Pledgee may deem appropriate, to be held
by the Pledgee, subject to the terms hereof, as part of the Collateral.


 


Remedies.  (i) If an Event of Default shall occur and
then be continuing:


 


The Pledgee, without obligation to resort to any other security, right
or remedy granted under any other agreement or instrument, shall have the right
to, in addition to all rights, powers and remedies of a secured party pursuant
to the Code, at any time and from time to time upon ten (10) Business Days’
notice to the respective Pledgor, (i) cause any or all of the Pledged Interests
to be registered in or transferred into the name of the Pledgee or into the
name of a nominee or nominees, or designee or designees, of the Pledgee; and/or
(ii) sell, resell, assign and deliver, in its sole discretion, any or all of
the Collateral (in one or more portions and at the same or different times) and
all right, title and interest, claim and demand therein and right of redemption
thereof, at public or private sale, for cash, upon credit or for future
delivery, and in connection therewith the Pledgee may impose reasonable


 


D-10

















 


conditions such as requiring any purchaser to represent that any
“securities” constituting any part of the Collateral are being purchased for
investment only, the Pledgors hereby waiving and releasing any and all equity
or right of redemption.  If all or any
of the Collateral is sold by the Pledgee upon credit or for future delivery,
the Pledgee and the other Secured Parties shall not be liable for the failure
of the purchaser to purchase or pay for the same and, in the event of any such
failure, the Pledgee may resell such Collateral.  It is expressly agreed that Pledgee may exercise its rights with
respect to less than all of the Collateral, leaving unexercised its rights with
respect to the remainder of the Collateral, provided, however,
that such partial exercise shall in no way restrict or jeopardize Pledgee’s
right to exercise its rights with respect to all or any other portion of the
Collateral at a later time or times.


 


The Pledgee may exercise, either by itself or by its nominee or
designee, in the name of any Pledgor, all of the rights, powers and remedies
granted to the Pledgee in the Pledged Interests, and may exercise and enforce
all of the Pledgee’s rights and remedies hereunder and under law.  Such rights and remedies shall include,
without limitation, the right to exercise all voting, consent, managerial and
other rights relating to the Pledged Interests in question, whether in the
related Pledgor’s name or otherwise.


 


The Pledgors hereby, in the name of each Pledgor or otherwise,
authorize and empower the Pledgee and assign and transfer unto the Pledgee, and
constitute and appoint the Pledgee its true and lawful attorney-in-fact, and as
its agent, irrevocably, with full power of substitution for it and in its name,
upon the occurrence and during the continuance of an Event of Default, (i) to
exercise and enforce every right, power, remedy, authority, option and
privilege of any of the Pledgors, including any power to subordinate,
terminate, cancel or modify any documents listed on Schedule III hereto,
or to give any notices, or to take any action resulting in such subordination,
termination, cancellation or modification and (ii) in order to more fully vest
in the Pledgee the rights and remedies provided for herein, to exercise all of
the rights, remedies and powers granted to the Pledgee in this Agreement, and
the Pledgors further authorize and empower the Pledgee, as their
attorney-in-fact, and as their agent, irrevocably, with full power of
substitution for them and in their names, to give any authorization, to furnish
any information, to make any demands, to execute any instruments and to take
any and all other action on behalf of and in the name of the Pledgors which in
the opinion of Pledgee may be necessary or appropriate to be given, furnished,
made, exercised or taken with respect to the Collateral, to perform the
conditions thereof or to prevent or remedy any default by any Pledgor
thereunder or to enforce any of the Pledgors’ rights thereunder.  This power-of-attorney is irrevocable and coupled
with an interest, and any similar or dissimilar powers heretofore given by the
Pledgors or any Pledgor in respect of the Pledged Interests to any other Person
are hereby revoked.


 


D-11

















 


The Pledgee may at such time after the occurrence of an Event of
Default, and from time to time thereafter during the continuation of such Event
of Default without notice to, or assent by, the Pledgors or any Pledgor or any
other Person (to the extent permitted by law), but without affecting any of the
Obligations, in the name of the Pledgors or any Pledgor or in the name of the
Pledgee, notify any other party to any of the documents listed on
Schedule III hereto to make payment and performance directly to the
Pledgee; extend the time of payment and performance of, compromise or settle
for cash, credit or otherwise, and upon any terms and conditions, any
obligations owing to the Pledgors or any Pledgor, or claims of the Pledgors or
any Pledgor, under the documents listed on Schedule III hereto; file any claims,
commence, maintain or discontinue any actions, suits or other proceedings
deemed by the Pledgee necessary or advisable for the purpose of collecting upon
or enforcing the documents listed on Schedule III hereto; and execute any
instrument and do all other things deemed necessary and proper by the Pledgee
to protect and preserve and realize upon the Collateral and the other rights
contemplated hereby.


 


Pursuant to the power-of-attorney provided for above, the Pledgee may
take any action and exercise and execute any instrument which it may deem
necessary or advisable to accomplish the purposes hereof.  Without limiting the generality of the
foregoing, the Pledgee, after the occurrence and during the continuation of an Event
of Default, shall have the right and power to receive, endorse and collect all
checks and other orders for the payment of money made payable to the Pledgors
or any Pledgor representing any interest, payment of principal or other
distribution payable in respect of the Collateral or any part thereof, and for
and in the name, place and stead of the Pledgors or any Pledgor, to execute
endorsements, assignments or other instruments of conveyance or transfer in
respect of the Pledged Interests or any other property which is or may become a
part of the Collateral hereunder.


 


The Pledgee may exercise all of the rights and remedies of a secured
party under the Code.


 


Without limiting any other provision of this Agreement, and without
waiving or releasing the Pledgors from any obligation or default hereunder,
subject to the provisions of the documents listed on Schedule III hereto,
the Pledgee shall have the right, but not the obligation, to perform any act or
take any appropriate action, as it, in its reasonable judgment, may deem
necessary to cure such Event of Default or cause any term, covenant, condition
or obligation required under this Agreement, or any of the other Loan
Documents, or the documents listed on Schedule III hereto, to be performed
or observed by the Pledgors or any Pledgor to be promptly performed or observed
on behalf of the Pledgors or any Pledgor or to protect the security of this
Agreement.  All amounts advanced by, or
on behalf of, the Pledgee in exercising its rights under this Section 6
(including, but not limited


 


D-12

















 


to, reasonable legal expenses and disbursements incurred in connection
therewith), together with interest thereon at the rate of interest payable on
overdue principal under the Credit Agreement from the date of each such
advance, shall be payable by the Pledgors to the Pledgee upon demand and shall
be secured by this Agreement.


 


Sales of Collateral.  No demand, advertisement or
notice, all of which the Pledgors hereby expressly waive, shall be required in
connection with any sale or other disposition of all or any part of the
Collateral, except that the Pledgee shall give the Pledgors at least ten (10)
Business Days’ prior notice of the time and place of any public sale or of the
time and the place where any private sale or other disposition is to be made,
which notice the Pledgors hereby agree is reasonable.  To the extent permitted by law, the Pledgee shall not be
obligated to make any sale of the Collateral regardless of the fact that notice
of sale may have been given, and the Pledgee may without notice or publication
adjourn any public or private sale, and such sale may, without further notice,
be made at the time and place to which the same was so adjourned.  Upon each private sale of the Collateral of
a type customarily sold in a recognized market and upon each public sale,
unless prohibited by any applicable statute which cannot be waived, the Pledgee
(or its nominee or designee) may purchase any or all of the Collateral being
sold, free and discharged from any trusts, claims, equity or right of
redemption of any Pledgor, all of which are hereby waived and released to the
extent permitted by law, and may make payment therefor by credit against any of
the Obligations in lieu of cash or any other obligations.  In the case of all sales of the Collateral,
public or private, the Pledgors will pay all reasonable costs and expenses of
every kind for sale or delivery, including brokers’ and attorneys’ fees, at
generally prevailing rates, and disbursements and any tax imposed thereon.  However, the proceeds of sale of Collateral
shall be available to cover such costs and expenses, and, after deducting such
costs and expenses from the proceeds of sale, the Pledgee shall remit any residue
to the Agent for application to the payment of the Obligations in the order of
priority set forth in the Credit Agreement.


 


Securities Act of 1933, Etc.  The Pledgors recognize that
the Pledgee may be unable to effect a public sale of all or a part of the
Collateral by reason of certain prohibitions contained in the Securities Act of
1933, as amended, as now or hereafter in effect, or in applicable Blue Sky or
other state securities laws, as now or hereafter in effect, but may be
compelled to resort to one or more private sales to a restricted group of
purchasers who will be obliged to agree, among other things, to acquire such
Collateral for their own account, for investment and not with a view to the
distribution or resale thereof.  If, at
the time of any sale of Collateral, the Collateral or any part thereof to be
sold shall not, for any reason whatsoever, be effectively registered under the
Securities Act of 1933, as then in effect, the Pledgee, in its sole and
absolute discretion, is hereby authorized to sell such Collateral or such part
thereof by private sale in such manner and under such circumstances as the
Pledgee may reasonably deem necessary or advisable in order that such sale


 


D-13

















 


may legally be effected without registration.  The Pledgors acknowledge that private sales so made may be at
prices and on other terms less favorable to the seller than if such Collateral
were sold at a public sale, and agree that the Pledgee has no obligation to
delay the sale of any such Collateral for the period of time necessary to
permit the issuer of such Collateral, even if such issuer would agree, to
register such Collateral for public sale under such applicable securities
laws.  The Pledgors agree that private
sales made under the foregoing circumstances shall not, because so made, be
deemed to have been made in a commercially unreasonable manner.


 


Receipt of Sale Proceeds.  Upon any sale of the
Collateral by the Pledgee hereunder (whether by virtue of the power of sale
herein granted, pursuant to judicial process or otherwise), the receipt of the
Pledgee or the officer making the sale shall be a sufficient discharge to the
purchaser or purchasers of the Collateral so sold, and such purchaser or
purchasers shall not be obligated to see to the application of any part of the
purchase money paid over to the Pledgee or such officer or be answerable in any
way for the misapplication or nonapplication thereof.


 


Event of Default.  An “Event of Default” shall exist if
any of the following shall have occurred:


 


The failure by any Pledgor to comply with any of the covenants or
agreements made by it in this Agreement, or if any representation or warranty
made by any Pledgor contained in this Agreement was false or misleading in any
material respect on the date when made, (i) as provided for in Sections 4 or 5
hereof immediately upon the occurrence thereof; or (ii) as provided for
elsewhere in this Agreement, if such failure or breach, as the case may be,
shall continue for thirty (30) days after notice of such failure or breach
shall have been given by the Pledgee; provided, however if the
nature of the failure or breach, as the case may be, referred to in clause (ii)
is such that it is curable by a Pledgor but cannot be cured within thirty (30)
days, then an Event of Default shall not be deemed to have occurred hereunder
if such Pledgor, promptly after such notice, commences to cure such failure or
breach, as the case may be, and proceeds with diligence the cure thereof,
provided, however, that such failure or breach shall constitute an Event of
Default if it is not in any event cured within ninety (90) days of Pledgee’s
notice; or


 


An “Event of Default” (as defined in the Credit Agreement) shall occur.


 


Waivers; Modifications.  No delay on the part of the
Pledgee in exercising any of its options, powers or rights, or partial or
single exercise thereof, shall constitute a waiver thereof.  None of the terms and conditions of this
Agreement may be discharged, changed, waived, modified or varied in any manner
unless in a writing duly signed by the parties hereto in compliance with §26 of
the Credit Agreement.


 


D-14

















 


Remedies Cumulative.  All rights and remedies
afforded to the Pledgee by reason of this Agreement are separate and cumulative
remedies, and shall be in addition to all other rights and remedies in favor of
the Pledgee and the other Secured Parties existing at law or in equity or
otherwise.  No one of such remedies,
whether or not exercised by the Pledgee, shall be deemed to exclude, limit or
prejudice the exercise of any other legal or equitable remedy or remedies
available to the Pledgee or any other Secured Party.


 


Notices.  All notices, requests and other
communications to any party hereunder shall be in writing (including bank wire,
telecopy, or similar teletransmission or writing) and shall be given to such
party at its address or telecopy number set forth below or such other address
or telecopier number as such party may hereafter specify by notice to the other
parties.  Each such notice, request, or
other communication shall be effective (i) when delivered personally, (ii) if
given by telecopier with written confirmation, which written confirmation shall
be given within two (2) Business Days of such notice by telecopier), when such
telecopy is transmitted to the telecopier number specified in this section,
(iii) if given certified or registered mail, return receipt requested, 72 hours
after such communication is deposited in the mails with first-class postage
prepaid, addressed as aforesaid, (iv) by Federal Express or other recognized
overnight delivery service (provided that, in either such case, such delivery
is made with a request for receipt), on the next Business Day after such
communication is deposited with such delivery service, or (v) if given by any
other means, when delivered at the address specified in this section.  Notwithstanding anything contained herein to
the contrary, no notice shall be deemed to be effective against a party if such
party can prove that such notice was never delivered to it; provided, however,
that rejection of or refusal to accept any notice, or inability to deliver any
notice because of changed address or because no notice of changed address was
given, shall be deemed to be receipt of such notice.


 


Address for Pledgors:


Notices to


Pledgors or any


Pledgor:                                                    c/o SL Green Realty Corp.


420 Lexington Avenue


New York, New York 10170


Attn: Marc Holliday


Telephone: 212-216-1684


Fax: 212-216-1785


 


with, in each case, a copy to: Andrew Levine, Esq.


c/o SL Green Realty Corp.


420 Lexington Avenue


New York, New York 10170


 


D-15

















 


Telephone: 212-216-1646


Fax: 212-216-1785


 


Address for Pledgee:


Notices to


Pledgee:                                                   100 Federal Street


Boston, Massachusetts 02110


Attn:  Structured Real Estate


Telephone: 617-434-0645


Fax: 617-434-1941


 


Jurisdiction, Etc.


 


This Agreement and the rights and obligations of the parties hereunder
shall be construed in accordance with and be governed by the law (without giving
effect to the conflict of law principles thereof) of the State of New York.


 


Any legal action or proceeding with respect to this Agreement or any
document related thereto may be brought in the courts of the State of New York,
First Department, or of the United States of America for the Southern District
of New York, and, by execution and delivery of this Agreement, the Pledgors
hereby accept for themselves and in respect of their property generally and
unconditionally, the jurisdiction of the aforesaid courts.  The Pledgors hereby irrevocably waive any
objection, including, without limitation, any objection to the laying of venue
or based on the grounds of forum non conveniens, which any of them may
now or hereafter have to the bringing of any such action or proceeding in such
respective jurisdictions.  The Pledgors
agree that any process in any proceeding in any such court may be served on the
Pledgors or any Pledgor through the United States mails in accordance with
Section 13 hereof.


 


WAIVER OF JURY TRIAL.  THE PLEDGORS HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY PROMISSORY NOTE OR ANY OTHER LOAN
DOCUMENTS AND FROM ANY COUNTERCLAIM THEREIN.


 


Nothing herein shall affect the right of the Pledgee to serve process
in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against the Pledgors or any Pledgor in any other
jurisdiction.


 


Successors and Assigns.  This Agreement, and all
representations, warranties and covenants of the Pledgors made herein, shall be
binding upon and inure to the benefit of the Pledgors and their successors and
assigns, provided that nothing in this section shall be deemed to
constitute the consent of the Pledgee to


 


D-16

















 


any transaction in this Agreement elsewhere not permitted and provided
further that no Pledgor may assign, transfer or delegate any of its right or
obligations hereunder without the prior written consent of all of the Secured
Parties (and any attempted such assignment, transfer or delegation without such
consent shall be null and void).


 


Pledgee and Other Secured Parties Not Bound.


 


Nothing herein shall be construed to make the Pledgee or any other Secured
Party liable as a general or limited partner of any Pledgor or member of any
Pledgor by virtue of this Agreement or otherwise.


 


The Pledgee, by accepting this Agreement, does not intend, and none of
the other Secured Parties, by virtue of this Agreement, intends, to become a
partner of the Pledgors or any Pledgor or otherwise be deemed to be a
co-venturer with respect to the Pledgors or any Pledgor either before or after
an Event of Default shall have occurred. 
The Pledgee shall have only those powers set forth herein and the
Pledgee and the other Secured Parties shall assume none of the duties,
obligations or liabilities of the Pledgors or any Pledgor unless the Pledgee or
any other Secured Party shall become the absolute owner of a Pledged Interest pursuant
hereto.


 


The Pledgee and the other Secured Parties shall not be obligated to
perform or discharge any obligation of the Pledgors or any Pledgor as a result
of pledge of the Collateral.


 


The acceptance by the Pledgee of this Agreement with all the rights,
powers, privileges and authority so created, shall not at any time or in any
event obligate the Pledgee or any other Secured Party to appear in or defend
any action or proceeding relating to the Collateral, or to take any action
hereunder or thereunder or to expend any money or incur any expenses or perform
or discharge any obligation, duty or liability under the Collateral unless the
Pledgee or such other Secured Party shall become the absolute owner pursuant
hereto.


 


Acts of the Pledgee.  All Collateral at any time
delivered to the Pledgee pursuant hereto shall be held by the Pledgee subject
to the terms, covenants and conditions herein set forth.  Neither the Pledgee, nor any of its
directors, officers, agents, employees or counsel shall be liable for any
action taken or omitted to be taken by such party or parties relative to any of
the Collateral, except for such party’s or parties’ own gross negligence or
willful misconduct or breach of this Agreement.  The Pledgee shall be entitled to rely in good faith upon any
writing or other document, telegram or telephone conversation reasonably
believed by it to be genuine and correct and to have been signed, sent or made
by the proper person or persons, and, with respect to any legal matter, the
Pledgee may rely in acting or in refraining from acting upon the advice of
counsel selected by it concerning all


 


D-17

















 


matters hereunder.  The Pledgors
hereby agree to indemnify and hold harmless the Pledgee, the Lenders and their
directors, officers, agents, employees or counsel (collectively, the
“Indemnified Parties”) from and against any and all claims, demands, losses,
judgments and liabilities (including, without limitation, liabilities for
penalties and all damages, liabilities, losses, costs and expenses which the
Pledgee or any Lender may incur or suffer if it becomes, or is alleged to have
become, a partner or co-venturer of any of the Pledgors by reason of the
operation of this Agreement or the Pledgee’s exercise of the rights, remedies
or powers under or in accordance with be terms hereof or otherwise, but
excluding those losses, judgments and liabilities of the Pledgee resulting from
its gross negligence or willful misconduct or breach of this Agreement) of whatsoever
kind or nature, and to reimburse, within ten (10) days after demand therefor,
the Pledgee and the Lenders for all costs and expenses, including reasonable
attorneys’ fees (other than those costs and expenses of the Pledgee or any
Lender resulting from its gross negligence or willful misconduct or breach of
this Agreement), arising out of or resulting from this Agreement or the
exercise by the Pledgee of any right or remedy granted to it hereunder, such as
operating, selling or disposing of any Pledgor’s property, including, without
limitation, the Pledged Interests, together with interest on such sums at the
rate specified in Section 4.9  of
the Credit Agreement, from the date such expenses were paid by the Pledgee to
the date of payment to the Pledgee of such sums.  In any action to enforce this Agreement, the provisions of this
Section 17 shall, to the extent permitted by law, prevail notwithstanding
any provision of applicable law respecting the recovery of costs, disbursements
and allowances to the contrary.


 


Custody of Collateral; Notice of Exercise of Remedies.  The
Pledgee shall not have any duty as to the collection or protection of the
Collateral or any income thereon or payments with respect thereto, or as to the
preservation of any rights pertaining thereto beyond exercising reasonable care
with respect to the custody of any thereof actually in its possession.  The Pledgors hereby waive notice of
acceptance hereof, and except as otherwise specifically provided herein or in
the Credit Agreement or required by any provision of law which may not be
waived, hereby waive any and all notices or demands with respect to any
exercise by the Pledgee of any rights or powers which it may have or to which
it may be entitled with respect to the Collateral.


 


Severability.  In case any one or more of the provisions
contained in this Agreement shall be found to be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby, and this Agreement shall continue in full force and effect in
accordance with its remaining terms.


 


Further Assurances; UCC Statements.  The
Pledgors agree to do such further acts and things and to execute and deliver to
the Pledgee such additional


 


D-18

















 


conveyances, assignments, agreements and instruments as the Pledgee
from time to time may reasonably require or deem advisable to carry into effect
this Agreement or to further assure and confirm unto the Pledgee its rights,
powers and remedies hereunder.  The
Pledgors hereby agree to sign and deliver to the Pledgee financing statements,
in form acceptable to the Pledgee, as the Pledgee may from time to time reasonably
request or as are necessary in the reasonable opinion of the Pledgee to
establish and maintain a valid and perfected security interest in the
Collateral, and to pay any filing fees relative thereto.  The Pledgors also authorize the Pledgee, to
the extent permitted by law, to file such financing statements without the
signature of the Pledgors or any Pledgor, and further authorize the Pledgee, to
the extent permitted by law, to file a photographic or other reproduction of
this Agreement or of a financing statement in lieu of a financing statement.


 


Miscellaneous.


 


The Pledgors hereby irrevocably constitute and appoint the Pledgee as
the true and lawful attorney-in-fact of the Pledgors and each Pledgor, which
appointment is coupled with an interest, with full power of substitution, to
proceed from time to time in any Pledgor’s name in any statutory or
non-statutory proceeding affecting any Collateral, and the Pledgee or its
nominee may (i) execute and file proof of claim for the full amount of any
Collateral and vote such claims for the full amount thereof (x) for or against
any proposal or resolution, (y) for a trustee or trustees, or for a receiver or
receivers, or for a committee of creditors and/or (z) for the acceptance or
rejection of any proposed arrangement, plan or reorganization, composition or
extension, and the Pledgee or its nominee may receive any payment or
distribution and give acceptance therefor and may exchange or release
Collateral; (ii) endorse any draft or other instrument for the payment of
money, execute releases and negotiate settlements; and (iii) execute all such
other documents or instruments as may be necessary or expedient to be executed
by the Pledgors or any Pledgor for any of the purposes of this Agreement;
provided, however, that the power provided for in this sentence may not be
exercised by the Pledgee prior to the occurrence of an Event of Default and
then only for so long as an Event of Default continues.  The Pledgee shall have no duty to exercise
any of the aforesaid rights, privileges or options and shall not be responsible
for any failure to do so or delay in so doing.


 


In enforcing any rights hereunder or under any of the other Loan
Documents, the Pledgee shall not be required to resort to any particular
security, right or remedy through foreclosure or otherwise or to proceed in any
particular order of priority, or otherwise act or refrain from acting, and, to
the extent permitted by law, the Pledgors hereby waive and release any right to
a marshalling of assets or a sale in inverse order of alienation.


 


Pledgors hereby waive any claim for monetary damages against Pledgee or
any other Secured Party which any Pledgor may have based on any


 


D-19

















 


assertion that the Pledgee or any other Secured Party has unreasonably
withheld or unreasonably delayed any determination, consent or approval under
any of the documents listed on Schedule III hereto, and the Pledgors agree
that their sole remedy shall be an action or proceeding to enforce any such
provision or for specific performance, injunction or declaratory judgment with
respect thereto.  In the event of such a
determination in favor of the Pledgors or any Pledgor in an action or proceeding
seeking only the relief permitted hereunder, the requested determination,
consent or approval shall be deemed to have been granted.  However, the Pledgee and the other Secured
Parties shall have no liability to the Pledgors or any Pledgor for its refusal
or failure to give such determination, consent or approval.


 


The obligations of the Pledgors hereunder shall be joint and several.


 


This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument.


 


22.  Confirmation.  To induce the Agent and the Lenders to enter
into the Credit Agreement, each Pledgor hereby confirms and acknowledges that
pursuant to the Existing Pledge and Security Agreement, it duly granted a
continuing security interest in and to all of its portion of the
Collateral.  Each Pledgor hereby
ratifies and restates such grant as to all of its portion of such Collateral
and confirms that (in addition to any grant of a security interest in
additional Collateral), such grant shall henceforth continue to be made to the
Agent, for the benefit of itself and the Lenders, and the subject Lien shall
continue in effect in favor of Agent, for the benefit of itself and the
Lenders, to secure the prompt and complete payment, performance and observance
of all of the Obligations.


 


23.  Consent to Amendment and
Restatement.  This Agreement shall
supersede the Existing Pledge and Security Agreement in its entirety, except as
provided in this Section 22.  On
the Effective Date, the rights and obligations of the parties under the
Existing Pledge and Security Agreement shall be subsumed within and be governed
by this Agreement.  This Agreement is
given as a substitution of, and not as a payment of, the obligation of the
Pledgors under the Existing Pledge and Security Agreement and is not intended
to constitute a novation of the Existing Pledge and Security Agreement.


 


 


[The remainder of this page is
intentionally left blank.]


 


D-20

















 


IN WITNESS WHEREOF, the parties have duly executed
and delivered this Agreement as of the day and year first above written.


 


	
   

  	
  PLEDGORS:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SL Green Funding LLC,

  
	
   

  	
  a New York limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
  By:  

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SL Green Operating Partnership, L.P.,

  
	
   

  	
  a Delaware limited partnership

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:  

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Green 1412 Preferred LLC,

  
	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
  By:  

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  469 Preferred Member LLC,

  
	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
  By:  

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


D-21

















 


	
   

  	
  SLG 609 Funding LLC,

  
	
   

  	
  A Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:  

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SLG 500-512 Funding LLC,

  
	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:  

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SLG 40 Wall Funding LLC,

  
	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:  

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


D-22

















 


	
   

  	
  SLG Penncom Funding LLC,

  
	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:  

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SLG EAB Funding LLC,

  
	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:  

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SLG 50 West Participation LLC,

  
	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:  

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SLG 1370 Funding LLC,

  
	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:  

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


D-23

















 


	
   

  	
  Green 225 Penn Bldg LLC,

  
	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
  By:  

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SL Green West 26th Funding LLC,

  
	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:  

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SL Green 11 Madison Funding LLC,

  
	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:  

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


D-24

















 


	
   

  	
  PLEDGEE:

  
	
   

  	
   

  	
   

  
	
   

  	
  Fleet National Bank

  
	
   

  	
  as administrative agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


D-25

















 


SCHEDULE I


 


Pledged Indebtedness


 


1.                                       All of SLG 609 Funding LLC’s right, title and
interest in and to its mezzanine loan investment in respect of 609 MB LLC,
including, without limitation, (i) a promissory note dated September 30,
2003, in the amount of $15,000,000.00, made by 609 MB LLC in favor of SLG 609
Funding LLC; and (ii) the Mezzanine Loan Agreement dated as of
September 30, 2003 between 609 MB LLC and SLG 609 Funding LLC.


 


2.                                       All of SLG 40 Wall Funding LLC’s right, title
and interest in and to its junior participation loan investment in respect of
40 Wall Street LLC, including, without limitation, (i) its Junior Participation
Interest (as defined in that certain Participation and Servicing Agreement
dated as of September 16, 2003 (as the same may be amended, restated,
renewed, supplemented or otherwise modified) between Wachovia Bank, National
Association, as senior participant, and SLG 40 Wall Funding LLC, as junior
participant) with respect to a mortgage loan in the original principal amount
of $140,000,000.00, evidenced by a promissory note dated as of August 11,
2003, made by 40 Wall Street LLC, as maker, in favor of Wachovia Bank, National
Association; and (ii) a Participation and Servicing Agreement dated as of
September 16, 2003 between Wachovia Bank, National Association and SLG 40
Wall Funding LLC.


 


3.                                       All of SLG 500-512 Funding LLC’s right, title
and interest in and to its mezzanine loan investment in respect of Shefaa Sub,
LLC, including, without limitation, (i) a Promissory Note dated
December 30, 2002, in the amount of $15,000,000.00, made by Shefaa Sub,
LLC to Wachovia Bank, National Association, which note was assigned and
indorsed by Wachovia Bank, National Association to SLG 500-512 Funding LLC by
allonge dated January 23, 2003; and (ii) an Intercreditor Agreement dated
as of January 23, 2003 by and between Wachovia Bank, National Association,
as senior lender, CTMPII FC 500 7th (GCM), as senior mezzanine
lender, and SLG 500-512 Funding LLC, as junior mezzanine lender.


 


4.                                       All of SLG EAB Funding LLC’s right, title and
interest in and to its participation loan investment in respect of Galaxy LI
Junior Mezz LLC, including without limitation, (i) its participation interest
(as defined in that certain Participation Agreement dated as of
September 5, 2003 (as the same may be amended, restated, renewed,
supplemented or otherwise modified) by and between SLG EAB Funding LLC and ROP
EAB Funding LLC) with respect to a mezzanine loan (as defined in that certain
Loan and Security Agreement dated as of September 5, 2003 between Galaxy
LI Junior Mezz LLC and SLG EAB Funding LLC) in the original principal amount of
$30,000,000.00 evidenced by a promissory note dated September 5, 2003 made
by Galaxy LI Junior Mezz LLC in favor of SLG EAB Funding LLC; and (ii) a
Participation Agreement dated as of September 5, 2003 by and between SLG
EAB Funding LLC and ROP EAB Funding LLC.


 


5.                                       All of SLG 50 West Participation LLC’s right,
title and interest in and to its junior participation loan investment in
respect of Matana LLC, including, without limitation, (i) its junior
participation interest (as defined in that certain Participation and Servicing


 


D-26

















 


Agreement
dated as of May 16, 2003 (as the same may be amended, restated, renewed,
supplemented or otherwise modified) between Wachovia Bank, National
Association, as senior participant, and SLG 50 West Participation LLC, as
junior participant) with respect to a mortgage loan in the original principal
amount of $57,500,000.00, evidenced by an amended, restated and consolidated
promissory note dated as of March 26, 2003, made by Matana LLC, as maker,
in favor of Wachovia Bank, National Association; and (ii) a Participation and
Servicing Agreement dated as of May 16, 2003 between Wachovia Bank, National
Association, Capital Trust, Inc., SLG 50 West Participation LLC, and Wachovia
Bank, National Association.


 


6.                                       All of SLG 1370 Funding LLC’s right, title
and interest in and to its loan investment in respect of 1370 Owners LLC,
including, without limitation, (i) an Amended and Restated Promissory Note  (Note B) dated July 31, 2003 in the
amount of $4,000,000.00 made by 1370 Owners LLC to Wachovia Bank, National Association,
which note was assigned and indorsed by Wachovia Bank, National Association to
SLG 1370 Funding LLC by an undated allonge; and (ii) an Intercreditor Agreement
dated as of August 25, 2003 by and between Wachovia Bank, National
Association, as lead lender, and SLG 1370 Funding LLC, as co-lender.


 


7.                                       All of SL Green West 26th Funding LLC’s
right, title and interest in and to its mezzanine loan investment in respect of
601 Mezz Borrower 2 LLC, including, without limitation, (i) a Promissory Note
dated January 2, 2004 in the original principal amount of $40,000,000.00
made by  601 Mezz Borrower 2 LLC to SL
Green West 26th Funding LLC; and (ii) a Loan and Security Agreement (Mezzanine
Loan) dated as of January 2, 2004 by and between 601 Mezz Borrower 2 LLC,
as borrower, and SL Green West 26th Funding LLC, as lender.


 


8.                                       All of Green 225 Penn Bldg LLC’s  right, title and interest in and to its
mezzanine loan investment in respect of Pennsylvania Building Company, L.P.,
including, without limitation, (i) a Promissory Note dated December 29,
2003, in the amount of $59,379,645.00, made by Pennsylvania Building Company,
L.P. to Green 225 Penn Bldg LLC; and (ii) a Mezzanine Loan Agreement dated as
of December 29, 2003 by and between Green 225 Penn Bldg LLC, as lender,
and Pennsylvania Building Company, L.P., as borrower.


 


9.                                       All of SL Green 11 Madison Funding LLC’s
right, title and interest in and to its loan investment in respect of 11
Madison Avenue LLC, including, without limitation, (i) a Promissory Note D dated
December 23, 2003 in the amount of $37,500,000.00 made by 11 Madison
Avenue LLC to Wachovia Bank, National Association, which note was assigned and
indorsed by Wachovia Bank, National Association to SL Green 11 Madison Funding
LLC by allonge January 27, 2004; and (ii) an Intercreditor and Servicing
Agreement dated as of January 28, 2004 by and between Wachovia Bank,
National Association, as lead lender, and SL Green 11 Madison Funding LLC, as
co-lender.


 


D-27

















 


SCHEDULE IIA


 


Pledged Equity


 


1.                                       Green 1412 Preferred LLC, a Delaware limited
liability company.


 


2.                                       JER 1412 Broadway, LLC, a Delaware limited
liability company.


 


3                                          2 GCT Funding LLC, a Delaware limited
liability company.


 


4.                                       601 West Associates LLC, a Delaware limited
liability company.


 


5.                                       469 Member LLC, a Delaware limited liability
company.


 


6.                                       Penncom Partners, L.L.C., a Delaware limited
liability company.


 


7.                                       Pennsylvania Building Company, L.P., a New
York limited partnership.


 


D-28

















 


SCHEDULE IIB


 


Pledged Equity


 


1.                                       All of SL Green Operating Partnership, L.P.’s
right, title and interest in Green 1412 Preferred LLC, a Delaware limited
liability company.


 


2.                                       All of Green 1412 Preferred LLC’s right,
title and interest in and to JER 1412 Broadway, LLC, a Delaware limited
liability company.


 


3.                                       All of SL Green Funding LLC’s right, title,
and interest in and to its membership interest in 2 GCT Funding LLC, a Delaware
limited liability company (“2 GCT”).


 


4.                                       All of SL Green West 26th Funding LLC’s
right, title and interest (by way of assignment and pledge from 601 Mezz
Borrower 2 LLC) in and to: (i) 601 Mezz Borrower 2 LLC’s membership interests
in 601 West Associates LLC, a Delaware limited liability company, and (ii) any
documents or certificates delivered in connection with any of the foregoing,
including, without limitation, any Uniform Commercial Code Financing Statements
filed in connection therewith.


 


5.                                       All of the right, title and interest of 469 Preferred
Member LLC, a Delaware limited liability company, in and to its membership
interest in 469 Member LLC, a Delaware limited liability company.


 


6.                                       All of the right, title and interest of SLG
Penncom Funding LLC, a Delaware limited liability company, in and to its
membership interest in Penncom Partners, L.L.C., a Delaware limited liability
company.


 


7.                                       All of the right, title and interest of Green
225 Penn Bldg LLC, a Delaware limited liability company (by way of assignment
and pledge from Mr. Charles R. Borrok (“Borrok”) and 14 Penn Plaza, L.L.C. (“14
Penn”)), in and to: (i) Borrok’s general partnership interest in Pennsylvania
Building Company, L.P., a New York limited partnership (the “Partnership”);
(ii) 14 Penn’s limited partnership interest in the Partnership; and (iii) any
documents or certificates delivered in connection with any of the foregoing,
including, without limitation, any Uniform Commercial Code Financing Statements
filed in connection therewith.


 


D-29

















 


SCHEDULE III


 


1.               Operating Agreement of SL Green Funding LLC,
formed under the laws of the State of New York, dated as of March 23,
1999, by SL Green Operating Partnership, L.P., a Delaware limited partnership.


 


2.               First Amended and Restated Limited Liability
Company Agreement of JER 1412 Broadway, LLC, formed under the laws of the State
of Delaware, dated as of June 29, 2001, made by and between Green 1412
Preferred LLC, a Delaware limited liability company, and JER 1412 Broadway Manager,
LLC, a Delaware limited liability company.


 


3.               Limited Liability Company Agreement of Green
1412 Preferred LLC, formed under the laws of the State of Delaware, dated as of
June 29, 2001, entered into by SL Green Operating Partnership, L.P., as
the sole equity member, and Delia Taliento as the Special Member.


 


4.               Limited Liability Company Agreement of 601
West Associates LLC, formed under the laws of the State of Delaware, dated as
of  January __, 2004, between 601
Mezz Borrower 2 LLC and Jerry Joseph and Jodie Skibinky.


 


5.               Amended and Restated Operating Agreement 2
GCT Funding LLC, formed under the laws of the State of Delaware, dated as of
July 20, 2001, between The Prudential Insurance Company of America and SL
Green Funding LLC.


 


6.               Operating Agreement of 469 Member LLC, formed
under the laws of the State of Delaware, dated as of June 20, 2002 between
the Preferred Member and the CSB Member named therein.


 


6.               Limited Liability Company Operating Agreement
of Penncom Partners, L.L.C., formed under the laws of the State of Delaware,
dated December 10, 2003 between Tribeca Penncom LLC, a New York limited
liability company, PennCom Holdings, L.L.C., a Delaware limited liability
company, and SLG Penncom Funding II LLC, a Delaware limited liability company.


 


7.               Partnership Agreement of Pennsylvania
Building Company, L.P. (f/k/a 225 West 34th Street Building Company,
L.P.), formed under the laws of the State of New York, dated as of
January 30, 2001 between the General Partner and the Limited Partners
named therein (as amended by the First Amendment of Limited Partnership
Agreement dated as of December 29, 2003 between Charles R. Borrok, as the
general partner, and 14 Penn Plaza, L.L.C., as the limited partner).


 


D-30

















 


EXHIBIT
E


 


FORM OF ASSIGNMENT AND ACCEPTANCE


 


Reference is made to the Second Amended and Restated
Revolving Secured Credit and Guaranty Agreement, dated as of March 22,
2004 (as amended or supplemented from time to time, the “Credit Agreement”),
among SL Green Operating Partnership, L.P. as Borrower, SL Green Realty Corp.
and certain of its subsidiaries signatory thereto, as Guarantors, the Lenders
signatory thereto, Fleet National Bank, as Administrative Agent for the Lenders
and as Collateral Agent for the Secured Parties, Wachovia Bank National
Association, as Syndication Agent for the Lenders, Sovereign Bank and
Commerzbank AG New York Branch, as Co-Documentation Agents for the Lenders, The
Bank of New York, as Managing Agent for the Lenders, and Fleet Securities, Inc.
and Wachovia Capital Markets LLC, as Co-Arrangers.  Capitalized terms used herein and not otherwise defined herein
shall have the respective meanings assigned to such terms by the Credit
Agreement.


 


                  
(the “Assignor”) and
                        
(the “Assignee”) hereby agree as follows:


 


1.                                       The Assignor hereby irrevocably sells,
assigns and delegates to the Assignee without recourse to the Assignor, and the
Assignee hereby purchases and assumes from the Assignor, without recourse to
and without representation or warranty by the Assignor except as otherwise
specifically set forth in Section 2 below, a
$                     (1)
interest in and to all of the Assignor’s rights and obligations under and in
respect of Assignor’s Commitment and Loans and its Note set forth on
Schedule I hereto (the “Assigned Loan”) and related rights and obligations
under the Credit Agreement and other Loan Documents.


 


2.                                       The Assignor (a) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit
Agreement, any other Loan Document or any other instrument or document
furnished pursuant thereto or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement, any other Loan
Document or any other instrument or document furnished pursuant thereto, other
than that it has not created any adverse claim upon the interest being assigned
by it hereunder and that such


 


 











(1)
The minimum amount that may be assigned is equal to the lesser of (i)
$5,000,000 or (ii) the Commitment of the Assignor as determined in accordance
with the Credit Agreement. 


 


E-1

















 


 interest is free and clear of any such
adverse claim; (b) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of Borrower or any
Guarantor or the performance or observance by Borrower or any Guarantor of
their respective obligations under the Credit Agreement or any other Loan
Document or any other instrument or document furnished pursuant hereto or
thereto; and (c) attaches the Note evidencing the Assigned Loan and requests
that the Administrative Agent exchange such Note for [(i)]a new Note, dated
                      ,
      , in the principal amount of $                         
payable to the order of the Assignee[, and (ii) a new Note, dated
                  
            , in
the principal amount of
$                     
payable to the order of the Assignor].


 


3.                                       The Assignee (a) represents and warrants that
it is legally authorized to enter into this Assignment and Acceptance; (b)
confirms that it has received a copy of the Credit Agreement, together with
copies of the financial statements referenced therein and such other documents
and information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Assignment and Acceptance; (c) acknowledges and
agrees that it has made and will make such inquiries and has taken and will
take such care on its own behalf as would have been the case had it made a Loan
directly to the Borrower without the intervention of the Assignor, the Agent or
any other Person; (d) acknowledges and agrees that it will perform in
accordance with their terms all of the obligations that, by the terms of any
Loan Document, are required to be performed by it as a Lender; (e) agrees that
it will, independently and without reliance upon the Assignor, the Agent or any
other Person which is or has become a Lender and based on such documents and
information as it shall deem appropriate at the time, continue to  make its own credit decisions in taking or
not taking action under the Credit Agreement; (f) appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise such powers
under the Credit Agreement as are delegated to the Agent by the terms thereof,
together with such powers under the Credit Agreement as are incidental thereto;
(g) agrees that it will be bound by the provisions of the Credit Agreement and
will perform in accordance with its terms all the obligations which by the
terms of the Credit Agreement are required to be performed by it as a Lender
including, if it is organized under the laws of a jurisdiction outside the
United States, its obligation pursuant to the Credit Agreement to deliver the
forms prescribed by the Internal Revenue Service of the United States
certifying as to the Assignee’s exemption from United States withholding taxes
with respect to all payments to be made to the Assignee under the Credit
Agreement, or such other documents as are necessary to indicate that all such
payments are subject to such tax at a rate reduced by an applicable tax treaty;
(h) confirms that the Assignee is an “Eligible Assignee” under the terms of the
Credit Agreement; (i) acknowledges and agrees that neither the Assignor nor the
Agent nor any other Lender makes any representation or warranty or assumes any
responsibility with respect to any statements, warranties or representations
made in or in connection with any Loan Document or any other instrument or
document


 


E-2

















 


furnished
pursuant thereto or the authorization, execution, legality, validity,
enforceability, genuineness, sufficiency or value of any Loan Document or any
other instrument or document furnished pursuant thereto; and (j) acknowledges
and agrees that neither the Assignor nor the Agent nor any other Lender makes
any representation or warranty or assumes any responsibility with respect to
the financial condition or creditworthiness of the Borrower, any Guarantor or
any other Person or the performance or observance by the Borrower, any
Guarantor or any other Person of any obligations under any Loan Document or any
other instrument or document furnished pursuant thereto.


 


4.                                       The effective date for this Assignment and
Acceptance shall be
                             
           (the “Effective
Date”).(2) Following the execution of this Assignment and Acceptance by the
Assignor and the Assignee, it will be delivered to the Administrative Agent for
acceptance by the Administrative Agent[, and the Assignor or the Assignee shall
pay to the Administrative Agent a $3,500 registration fee].  Following such payment, and acceptance by
the Administrative Agent of this Assignment and Acceptance, a photostatic copy
hereof shall be delivered to the Borrower and the Administrative Agent.  Within five (5) Business Days after the
Borrower’s receipt of such photostatic copy, the Borrower shall execute and
deliver to the Administrative Agent the new Note or Notes to be held in escrow
by the Administrative Agent pending release of the Note (in the appropriate
outstanding principal amount) evidencing the Assigned Loan as of the Effective
Date to the Borrower.  The
Administrative Agent shall deliver the new Note or Notes to the payee(s)
thereof, shall mark the Note evidencing the Assigned Loan as “replaced” and
shall deliver the same to the Borrower.


 


5.                                       Upon such acceptance by the Administrative
Agent, as of the Effective Date,


 


(a)                                  From and after the Effective Date, (a) the
Assignee shall be a party to the Credit Agreement and, to the extent provided
in this Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and under the other Loan Documents and shall be bound by the
provisions thereof, and the Assignee, in addition to any rights, benefits and
obligations under the Loan Documents held by it immediately prior to the
Effective Date, shall have the rights, benefits and obligations of a Lender
under the Loan Documents that have been assigned to it (including, but not
limited to, obligations to the Borrower under the Loan Documents) pursuant to
this Assignment and Acceptance. The Assignee shall become a Lender for all
purposes of the Credit Agreement and the other Loan Documents, and execution
hereof shall be deemed to be execution of the Credit Agreement; and


 












(2)
The requested effective date must be at least five Business Days after the
execution of this Assignment and Acceptance.


 


E-3

















 


(b)                                 The Assignor, to the extent provided in this
Assignment and Acceptance, shall relinquish its rights (except as provided in
the Credit Agreement) and benefits and be released from its obligations under
the Credit Agreement (and, in the case of an assignment covering all or the
remaining portion of the Assignor’s rights, benefits and obligations under the
Loan Documents, the Assignor shall cease to be a Lender under the Loan
Documents, except as provided in the Credit Agreement).


 


6.                                       Upon such acceptance by the Administrative
Agent, from and after the Effective Date, the Administrative Agent shall make
payments under the Credit Agreement in respect of the Assigned Loan (including,
without limitation, all payments of principal, interest and fees with respect
thereto) to the Assignee, whether such amounts have accrued prior to the
Effective Date or accrue subsequent to the Effective Date.  The Assignor and the Assignee agree that
they shall make all appropriate adjustments in payments under the Credit
Agreement by the Administrative Agent for periods prior to the Effective Date
directly between themselves.


 


7.                                       The Assignor agrees to give written notice of
this Assignment and Acceptance to the Agent, each Lender and the Borrower,
which written notice shall include the addresses and related information with
respect to the Assignee.


 


8.                                       THIS ASSIGNMENT AND ACCEPTANCE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK,
INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW.


 


9.                                       EACH OF THE ASSIGNOR AND THE ASSIGNEE HEREBY
WAIVES (TO THE EXTENT PERMITTED BY LAW) THE RIGHT TO A TRIAL BY JURY IN ANY
LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF
THIS ASSIGNMENT AND ACCEPTANCE, ANY INSTRUMENT OR DOCUMENT DELIVERED PURSUANT
TO THIS ASSIGNMENT AND ACCEPTANCE, OR THE VALIDITY, INTERPRETATION, OR
ENFORCEMENT THEREOF.


 


E-4

















 


IN WITNESS WHEREOF, the undersigned have caused this
Assignment and Acceptance to be duly executed and delivered by their respective
officers thereunto duly authorized as of the date and year first above written.


 


	
  [NAME OF ASSIGNOR]

  	
  [NAME OF ASSIGNEE]

  
	
   

  	
   

  
	
  By:  

  	
   

  	
   

  	
  By:  

  	
   

  	
   

  
	
   

  	
   

  
	
  Title: 

  	
   

  	
   

  	
  Title: 

  	
   

  	
   

  
								



 


Accepted
this
                
day of


                         ,
              


 


	
  FLEET NATIONAL BANK,

  	
   

  
	
  as Administrative Agent

  	
   

  
	
   

  	
   

  
	
  By: 

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Title: 

  	
   

  	
   

  	
   

  
					



 


E-5