Exhibit 10.24


 


EXECUTION COPY


 




 


 





TERM LOAN AGREEMENT


 


Dated as of November 28, 2005


 


by and among


 


HERITAGE PROPERTY INVESTMENT TRUST, INC.,


as
Borrower,


 


WACHOVIA CAPITAL MARKETS,
LLC,


as
Arranger,


 


WACHOVIA INVESTMENT
HOLDINGS, LLC,


as
Administrative Agent,


 


and


 


THE FINANCIAL INSTITUTIONS INITIALLY SIGNATORY HERETO


AND THEIR ASSIGNEES PURSUANT TO SECTION 12.5.,


as
Lenders




 





 





















 


TABLE OF CONTENTS


 


	
  Article I. Definitions

  	
  1

  
	
   

  	
   

  
	
   

  	
  Section 1.1. Definitions

  	
  1

  
	
   

  	
  Section 1.2. General;
  References to Times

  	
  22

  
	
   

  	
  Section 1.3. Financial
  Attributes of Non-Wholly Owned Subsidiaries

  	
  23

  
	
   

  	
   

  	
   

  
	
  Article II. Credit Facility

  	
  23

  
	
   

  	
   

  
	
   

  	
  Section 2.1. Term Loans

  	
  23

  
	
   

  	
  Section 2.2. Rates and Payment
  of Interest on Loans

  	
  24

  
	
   

  	
  Section 2.3. Number of
  Interest Periods

  	
  25

  
	
   

  	
  Section 2.4. Repayment of
  Loans

  	
  25

  
	
   

  	
  Section 2.5. Prepayments

  	
  25

  
	
   

  	
  Section 2.6. Continuation

  	
  25

  
	
   

  	
  Section 2.7. Conversion

  	
  26

  
	
   

  	
  Section 2.8. Notes

  	
  26

  
	
   

  	
  Section 2.9. Extension of
  Termination Date

  	
  26

  
	
   

  	
   

  	
   

  
	
  Article III. Payments, Fees
  and Other General Provisions

  	
  27

  
	
   

  	
   

  
	
   

  	
  Section 3.1. Payments

  	
  27

  
	
   

  	
  Section 3.2. Pro Rata
  Treatment

  	
  27

  
	
   

  	
  Section 3.3. Sharing of
  Payments, Etc

  	
  28

  
	
   

  	
  Section 3.4. Several
  Obligations

  	
  28

  
	
   

  	
  Section 3.5. Minimum Amounts

  	
  28

  
	
   

  	
  Section 3.6. Fees

  	
  29

  
	
   

  	
  Section 3.7. Computations

  	
  29

  
	
   

  	
  Section 3.8. Usury

  	
  29

  
	
   

  	
  Section 3.9. Agreement
  Regarding Interest and Charges

  	
  29

  
	
   

  	
  Section 3.10. Statements of
  Account

  	
  29

  
	
   

  	
  Section 3.11. Defaulting
  Lenders

  	
  30

  
	
   

  	
  Section 3.12. Taxes

  	
  30

  
	
   

  	
   

  	
   

  
	
  Article IV. Yield Protection,
  Etc

  	
  32

  
	
   

  	
   

  
	
   

  	
  Section 4.1. Additional Costs;
  Capital Adequacy

  	
  32

  
	
   

  	
  Section 4.2. Suspension of
  LIBOR Loans

  	
  33

  
	
   

  	
  Section 4.3. Illegality

  	
  33

  
	
   

  	
  Section 4.4. Compensation

  	
  34

  
	
   

  	
  Section 4.5. Affected Lenders

  	
  34

  
	
   

  	
  Section 4.6. Treatment of
  Affected Loans

  	
  35

  
	
   

  	
  Section 4.7. Change of Lending
  Office

  	
  35

  
	
   

  	
  Section 4.8. Assumptions Concerning
  Funding of LIBOR Loans

  	
  35

  
	
   

  	
   

  	
   

  
	
  Article V. Conditions
  Precedent

  	
  36

  
	
   

  	
   

  
	
   

  	
  Section 5.1. Initial
  Conditions Precedent

  	
  36

  
	
   

  	
  Section 5.2. Additional
  Conditions Precedent

  	
  38

  



 


i





















 


	
  Article VI. Representations and
  Warranties

  	
  38

  
	
   

  	
   

  
	
   

  	
  Section 6.1. Representations
  and Warranties

  	
  38

  
	
   

  	
  Section 6.2. Survival of Representations
  and Warranties, Etc

  	
  44

  
	
   

  	
   

  	
   

  
	
  Article VII. Affirmative
  Covenants

  	
  44

  
	
   

  	
   

  
	
   

  	
  Section 7.1. Preservation of
  Existence and Similar Matters

  	
  44

  
	
   

  	
  Section 7.2. Compliance with
  Applicable Law

  	
  45

  
	
   

  	
  Section 7.3. Maintenance of
  Property

  	
  45

  
	
   

  	
  Section 7.4. Conduct of
  Business

  	
  45

  
	
   

  	
  Section 7.5. Insurance

  	
  45

  
	
   

  	
  Section 7.6. Payment of Taxes
  and Claims

  	
  45

  
	
   

  	
  Section 7.7. Visits and
  Inspections

  	
  46

  
	
   

  	
  Section 7.8. Use of Proceeds

  	
  46

  
	
   

  	
  Section 7.9. Environmental
  Matters

  	
  46

  
	
   

  	
  Section 7.10. Books and
  Records

  	
  47

  
	
   

  	
  Section 7.11. Further
  Assurances

  	
  47

  
	
   

  	
  Section 7.12. New
  Subsidiaries/Guarantors

  	
  47

  
	
   

  	
  Section 7.13. REIT Status

  	
  48

  
	
   

  	
  Section 7.14. Exchange Listing

  	
  48

  
	
   

  	
  Section 7.15. Amendment to
  Revolving Credit Agreement

  	
  48

  
	
   

  	
   

  	
   

  
	
  Article VIII. Information

  	
  49

  
	
   

  	
   

  
	
   

  	
  Section 8.1. Quarterly
  Financial Statements

  	
  49

  
	
   

  	
  Section 8.2. Year-End
  Statements

  	
  49

  
	
   

  	
  Section 8.3. Compliance
  Certificate

  	
  50

  
	
   

  	
  Section 8.4. Other Information

  	
  50

  
	
   

  	
  Section 8.5. Delivery of
  Documents

  	
  52

  
	
   

  	
   

  	
   

  
	
  Article IX. Negative Covenants

  	
  53

  
	
   

  	
   

  
	
   

  	
  Section 9.1. Financial
  Covenants

  	
  53

  
	
   

  	
  Section 9.2. Restricted
  Payments

  	
  54

  
	
   

  	
  Section 9.3. Certain Permitted
  Investments

  	
  55

  
	
   

  	
  Section 9.4. Liens; Negative
  Pledges; Other Matters

  	
  55

  
	
   

  	
  Section 9.5. Merger,
  Consolidation, Sales of Assets and Other Arrangements

  	
  56

  
	
   

  	
  Section 9.6. Fiscal Year

  	
  57

  
	
   

  	
  Section 9.7. Modifications to
  PMCC Documents; Limitations on Modifications to Loan Documents

  	
  57

  
	
   

  	
  Section 9.8. Modifications of
  Organizational Documents

  	
  57

  
	
   

  	
  Section 9.9. Transactions with
  Affiliates

  	
  57

  
	
   

  	
  Section 9.10. ERISA Exemptions

  	
  58

  
	
   

  	
   

  	
   

  
	
  Article X. Default

  	
  58

  
	
   

  	
   

  
	
   

  	
  Section 10.1. Events of
  Default

  	
  58

  
	
   

  	
  Section 10.2. Remedies Upon
  Event of Default

  	
  61

  
	
   

  	
  Section 10.3. Remedies Upon
  Default

  	
  62

  
	
   

  	
  Section 10.4. Allocation of
  Payments

  	
  62

  



 


ii





















 


	
   

  	
  Section 10.5. Performance by
  Agent

  	
  63

  
	
   

  	
  Section 10.6. Rights
  Cumulative

  	
  63

  
	
   

  	
   

  	
   

  
	
  Article XI. The Agent

  	
  63

  
	
   

  	
   

  
	
   

  	
  Section 11.1. Authorization
  and Action

  	
  63

  
	
   

  	
  Section 11.2. Agent’s
  Reliance, Etc

  	
  64

  
	
   

  	
  Section 11.3. Notice of
  Defaults

  	
  65

  
	
   

  	
  Section 11.4. Wachovia as
  Lender

  	
  65

  
	
   

  	
  Section 11.5. Approvals of
  Lenders

  	
  65

  
	
   

  	
  Section 11.6. Lender Credit
  Decision, Etc

  	
  66

  
	
   

  	
  Section 11.7. Indemnification
  of Agent

  	
  67

  
	
   

  	
  Section 11.8. Successor Agent

  	
  67

  
	
   

  	
  Section 11.9. Titled Agents

  	
  68

  
	
   

  	
   

  	
   

  
	
  Article XII. Miscellaneous

  	
  68

  
	
   

  	
   

  
	
   

  	
  Section 12.1. Notices

  	
  68

  
	
   

  	
  Section 12.2. Expenses

  	
  69

  
	
   

  	
  Section 12.3. Setoff

  	
  70

  
	
   

  	
  Section 12.4. Litigation;
  Jurisdiction; Other Matters; Waivers

  	
  70

  
	
   

  	
  Section 12.5. Successors and
  Assigns

  	
  71

  
	
   

  	
  Section 12.6. Amendments

  	
  74

  
	
   

  	
  Section 12.7. Nonliability of
  Agent and Lenders

  	
  75

  
	
   

  	
  Section 12.8. Confidentiality

  	
  75

  
	
   

  	
  Section 12.9. Indemnification

  	
  76

  
	
   

  	
  Section 12.10. Termination;
  Survival

  	
  78

  
	
   

  	
  Section 12.11. Severability of
  Provisions

  	
  78

  
	
   

  	
  Section 12.12. GOVERNING LAW

  	
  78

  
	
   

  	
  Section 12.13. Patriot Act

  	
  78

  
	
   

  	
  Section 12.14. Counterparts

  	
  79

  
	
   

  	
  Section 12.15. Obligations
  with Respect to Loan Parties

  	
  79

  
	
   

  	
  Section 12.16. Limitation of
  Liability

  	
  79

  
	
   

  	
  Section 12.17. Entire
  Agreement

  	
  79

  
	
   

  	
  Section 12.18. Construction

  	
  79

  



 


	
  SCHEDULE 1.1(A)

  	
  List of Loan Parties

  	
   

  
	
  SCHEDULE 6.1.(b)

  	
  Ownership Structure

  	
   

  
	
  SCHEDULE 6.1.(f)

  	
  Title to Properties; Liens

  	
   

  
	
  SCHEDULE 6.1.(g)

  	
  Indebtedness and Guaranties

  	
   

  
	
  SCHEDULE 6.1.(h)

  	
  Litigation

  	
   

  
	
  SCHEDULE 6.1.(w)

  	
  Eligible Properties

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT A

  	
  Form of Assignment and Acceptance Agreement

  	
   

  
	
  EXHIBIT B

  	
  Form of Notice of Continuation

  	
   

  
	
  EXHIBIT C

  	
  Form of Notice of Conversion

  	
   

  
	
  EXHIBIT D

  	
  Form of Note

  	
   

  
	
  EXHIBIT E

  	
  Form of Opinion of Counsel

  	
   

  



 


iii





















 


	
  EXHIBIT F

  	
  Form of Compliance Certificate

  	
   

  
	
  EXHIBIT G

  	
  Form of Guaranty

  	
   

  
	
  EXHIBIT H

  	
  Form of Notice of Borrowing

  	
   

  



 


iv





















 


THIS
TERM LOAN AGREEMENT (this “Agreement”) dated as of November 28, 2005 by
and among HERITAGE PROPERTY INVESTMENT TRUST, INC., a corporation formed under
the laws of the State of Maryland (the “Borrower”), WACHOVIA CAPITAL MARKETS,
LLC, as Arranger (the “Arranger”), WACHOVIA INVESTMENT HOLDINGS, LLC, as Agent,
and each of the financial institutions initially a signatory hereto together
with their assignees pursuant to Section 12.5.(d).


 


WHEREAS,
the Lenders desire to make terms loans to the Borrower in an aggregate
principal amount of up to $100,000,000,
on the terms and conditions contained herein.


 


NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged by the parties
hereto, the parties hereto agree as follows:


 


ARTICLE I.
DEFINITIONS


 


Section 1.1.  Definitions.


 


In
addition to terms defined elsewhere herein, the following terms shall have the
following meanings for the purposes of this Agreement:


 


“Accession Agreement” means an Accession Agreement
substantially in the form of Annex I to the Guaranty.


 


“Additional Costs” has the meaning given that term in Section 4.1.


 


“Adjusted LIBOR” means, with respect to each Interest Period
for any LIBOR Loan, the rate obtained by dividing (a) LIBOR for such
Interest Period by (b) a percentage equal to 1 minus the stated maximum
rate (stated as a decimal) of all reserves, if any, required to be maintained
with respect to Eurocurrency funding (currently referred to as “Eurocurrency
liabilities”) as specified in Regulation D of the Board of Governors of
the Federal Reserve System (or against any other category of liabilities which
includes deposits by reference to which the interest rate on LIBOR Loans is
determined or any applicable category of extensions of credit or other assets
which includes loans by an office of any Lender outside of the United States of
America to residents of the United States of America). Any change in such
maximum rate shall result in a change in Adjusted LIBOR on the date on which
such change in such maximum rate becomes effective.


 


“Adjusted Combined Total Asset Value” means Combined Total Asset Value determined exclusive of assets
that are owned by Excluded Subsidiaries or Unconsolidated Affiliates.


 


“Affiliate” means any Person (other than the Agent or any
Lender): (a) directly or indirectly controlling, controlled by, or under
common control with, the Borrower; (b) directly or indirectly owning or
holding ten percent (10.0%) or more of any Equity Interest in the Borrower; or (c) ten
percent (10.0%) or more of whose voting stock or other Equity Interest is
directly or indirectly owned or held by the Borrower.  For purposes of this definition, “control”
(including with correlative meanings, the terms “controlling”, “controlled by”
and “under common control


 





















 


with”) means the possession directly or indirectly of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities or by contract or
otherwise.  The Affiliates of a Person
shall include any officer or director of such Person.  In no event shall the Agent or any Lender be
deemed to be an Affiliate of the Borrower.


 


“Agent” means Wachovia Investment Holdings, LLC, as
contractual representative for the Lenders under the terms of this Agreement,
and any of its successors.


 


“Agreement Date” means the date as of which this Agreement is
dated.


 


“Applicable Law” means all applicable provisions of
constitutions, statutes, laws, rules, regulations and orders of all
governmental bodies and all orders and decrees of all courts, tribunals and
arbitrators.


 


“Applicable Margin” means the percentage per annum
determined, at any time, based on the range into which the Borrower’s Credit
Rating then falls, in accordance with the levels in  the table set forth below (each a “Level”).  Any change in the Borrower’s Credit Rating
which would cause it to move to a different Level in such table shall effect a
change in the Applicable Margin on the Business Day on which such change
occurs.  During any period that the
Borrower has received Credit Ratings that are not equivalent, the Applicable
Margin shall be determined by the higher of such two Credit Ratings.  During any period for which the Borrower has
received a Credit Rating from only one Rating Agency, then the Applicable
Margin shall be determined based on such Credit Rating.  During any period for which the Borrower has
received a Credit Rating from neither Rating Agency, then the Applicable Margin
shall be determined based on Level 5.


 


 




	
  Level

  	
   

  	
  Borrower’s Credit Rating

  (S&P/Moody’s)

  	
   

  	
  Applicable Margin for

  LIBOR Loans

  	
   

  	
  Applicable Margin for

  Base Rate Loans

  	
   

  
	
  1

  	
   

  	
  A-/A3

  	
   

  	
  0.55

  	
  %

  	
  0.0

  	
  %

  
	
  2

  	
   

  	
  BBB+/Baa1

  	
   

  	
  0.60

  	
  %

  	
  0.0

  	
  %

  
	
  3

  	
   

  	
  BBB/Baa2

  	
   

  	
  0.70

  	
  %

  	
  0.0

  	
  %

  
	
  4

  	
   

  	
  BBB-/Baa3

  	
   

  	
  0.80

  	
  %

  	
  0.0

  	
  %

  
	
  5

  	
   

  	
  <
  BBB-/Baa3

  	
   

  	
  1.15

  	
  %

  	
  0.25

  	
  %

  






 


“Arranger” means Wachovia Capital Markets,
LLC, together with its successors and permitted assigns.


 


“Assignee” has the meaning given that term in Section 12.5.(d).


 


“Assignment and Acceptance Agreement” means an Assignment and
Acceptance Agreement among a Lender, an Assignee and the Agent, substantially
in the form of Exhibit A or such other form reasonably acceptable to the
Agent, such Lender and such Assignee.


 


“Base Rate” means the per annum rate of interest equal to the
greater of (a) the Prime Rate or (b) the Federal Funds Rate plus one-half
of one percent (0.5%). Any change in the Base Rate resulting from a change in
the Prime Rate or the Federal Funds Rate shall become effective as of 12:01 a.m.
on the Business Day on which each such change occurs.  The Base Rate is a


 


2





















 


reference rate used by the Lender acting as the Agent in determining
interest rates on certain loans and is not intended to be the lowest rate of
interest charged by the Lender acting as the Agent or any other Lender on any
extension of credit to any debtor.


 


“Base Rate Loan” means a Term Loan bearing interest at a rate
based on the Base Rate.


 


“Benefit Arrangement” means at any time an employee benefit
plan within the meaning of Section 3(3) of ERISA which is not a Plan
or a Multiemployer Plan and which is maintained or otherwise contributed to by
any member of the ERISA Group.


 


“Borrower” has the meaning set forth in the introductory
paragraph hereof and shall include the Borrower’s successors and permitted
assigns.


 


“Bradley OP” means Bradley Operating Limited Partnership, a
Delaware limited partnership.


 


“Bradley OP Note Indenture” means, collectively, the
Indenture dated as of November 24, 1997 between the Bradley OP and LaSalle
National Bank, as Trustee (the “Trustee”), together with the Supplemental
Indenture No. 1 dated as of November 24, 1997 pursuant to which the
Bradley OP issued $100,000,000 7.0% Notes due 2004, the Supplemental Indenture No. 2
dated as of January 28, 1998 pursuant to which the Bradley OP issued
$100,000,000 7.2% Notes due 2008 and the Supplemental Indenture No. 3
dated as of March 10, 2000 pursuant to which the Bradley OP issued
$75,000,000 8.875% Notes due 2006.


 


“Business Day” means (a) any day other than a Saturday,
Sunday or other day on which banks in Charlotte, North Carolina or New York,
New York are authorized or required to close and (b) with reference to a
LIBOR Loan, any such day that is also a day on which dealings in Dollar
deposits are carried out in the London interbank market.


 


“Capital Reserves” means, for any period and with
respect to a Property, an amount equal to (a) $0.15 per square foot times (b) a
fraction, the numerator of which is the number of days in such period and the
denominator of which is 365. Any portion of a Property leased under a ground
lease to a third party that owns the improvements on such portion of such
Property shall not be included in determinations of Capital Reserves. If the
term Capital Reserves is used without reference to any specific Property, then
the amount shall be determined on an aggregate basis with respect to all
Properties of the Borrower and its Subsidiaries and a proportionate share of
all Properties of all Unconsolidated Affiliates.


 


“Capitalization Rate” means 8.50%.


 


“Capitalized Lease Obligation” means an obligation under a
lease that is required to be capitalized for financial reporting purposes in
accordance with GAAP.  The amount of a
Capitalized Lease Obligation is the capitalized amount of such obligation as
would be required to be reflected on a balance sheet of the applicable Person
prepared in accordance with GAAP as of the applicable date.


 


3





















 


“Combined” means
with reference to any term defined or used herein, that term as applied to the
accounts of all or a portion of the Combined Group combined in accordance with
GAAP.


 


“Combined Adjusted EBITDA” means, for any given period, (a) the
EBITDA of the Combined Group determined on a Combined basis for such period, minus
(b) Capital Reserves for such period.


 


“Combined Group” means the Borrower, the Operating
Partnerships and each other Subsidiary of the Borrower or either of the
Operating Partnerships, from time to time in existence, and shall include, as
the context requires, Unconsolidated Affiliates of the Borrower.


 


“Combined Secured Indebtedness” means, with respect to a
Person as of any given date, the aggregate principal amount of all Indebtedness
of such Person outstanding at such date and that is secured in any manner by
any Lien, and in the case of the Borrower, shall include (without duplication)
the Borrower’s pro rata share of the Combined Secured Indebtedness of its
Unconsolidated Affiliates.


 


“Combined Secured Recourse Indebtedness” means all Combined Secured
Indebtedness that is not Nonrecourse Indebtedness.


 


“Combined Tangible Net
Worth” means, as of a
given date, (a) the stockholders’ equity of the Combined Group, plus (b) accumulated
depreciation and amortization, minus (c) the following (to the extent
reflected in determining stockholders’ equity of the Combined Group): (i) the
amount of any write-up in the book value of any assets contained in any balance
sheet resulting from revaluation thereof or any write-up in excess of the cost
of such assets acquired, and (ii) all amounts appearing on the assets side
of any such balance sheet for assets which would be classified as intangible
assets under GAAP, all determined on a Combined basis.


 


“Combined Total Asset Value” means the sum of all of the following of
the Combined Group determined on a Combined basis in accordance with GAAP
applied on a consistent basis: (a) cash, cash equivalents and marketable
securities, plus (b) with respect to each Property owned by the Borrower
or any Subsidiary for two or more fiscal quarters (other than a Development Property
or Unimproved Land), the quotient of (i) Net Operating Income attributable
to such Property for the period of two consecutive prior fiscal quarters most
recently ended times 2, divided by (ii) the Capitalization Rate, plus (c) the
GAAP book value of Properties acquired during the most recent period of two
consecutive fiscal quarters, plus (d) Construction-in-Process until the
earlier of the (i) one year anniversary date of project completion or (ii) the
fiscal quarter after a Property achieves an Occupancy Rate of 80%, plus (e) the
GAAP book value of Unimproved Land, Mortgage Receivables and other promissory
notes.  The Borrower’s pro rata share of
assets held by Unconsolidated Affiliates (excluding assets of the type
described in the immediately preceding clause (a)) will be included in Combined
Total Asset Value calculations consistent with the above described treatment
for wholly owned assets.  For purposes of
determining Combined Total Asset Value, Net Operating Income from Properties
acquired or disposed of by the Borrower, any Subsidiary or any


 


4





















 


Unconsolidated Affiliate during the
immediately preceding period of two consecutive fiscal quarters of the Borrower
shall be excluded.


 


“Combined Total Indebtedness” means all
Indebtedness of the Combined Group determined on a Combined basis and in the case of the Borrower, shall
include (without duplication) the Borrower’s pro rata share of the Indebtedness
of its Unconsolidated Affiliates.


 


“Combined Unsecured Indebtedness” means Indebtedness which is not Combined Secured Indebtedness.


 


“Commitment” means, as to each Lender, such Lender’s
obligation to make  Term Loans to the
Borrower pursuant to Section 2.1. in an amount up to, but not exceeding,
the amount set forth for such Lender on its signature page hereto as such
Lender’s “Commitment Amount” or as set forth in the applicable Assignment and
Acceptance Agreement, as the same may be reduced from time to time as
appropriate to reflect any assignments to or by such Lender effected in
accordance with Section 12.5.  The
amount of a Lender’s Commitment shall be reduced by the principal amount of
each Term Loan made by such Lender.


 


“Commitment Percentage” means, as to each Lender, the ratio,
expressed as a percentage, of (a) the amount of such Lender’s Commitment
to (b) the aggregate amount of the Commitments of all Lenders; provided,
however, that if at the time of determination the Commitments have terminated
or been reduced to zero, the “Commitment Percentage” of each Lender shall be
the ratio, expressed as a percentage, of (x) the aggregate outstanding
principal amount of such Lender’s Term Loans to (y) the aggregate
outstanding principal amount of all Term Loans.


 


“Commitment Termination Date” means August 28, 2006, or
any earlier date on which the Commitments are terminated in accordance with Article X.


 


“Compliance Certificate” has the meaning given that term in Section 8.3.


 


“Construction-in-Process” means cash expenditures for land and
improvements (including indirect costs internally allocated and development
costs) determined in accordance with GAAP on all Properties that are under
development or are scheduled to commence development within twelve months from
any date of determination.


 


“Construction Budget” means the fully-budgeted
costs for the acquisition and construction of a given parcel of real property
(including, without limitation, the cost of acquiring such parcel of real
property, reserves for construction interest and operating deficits, tenant
improvements, leasing commissions, and infrastructure costs (but exclusive of
improvements to be paid by tenants or parties other than the Borrower or its
Subsidiaries)), as reasonably determined by the Borrower in good faith.


 


“Continue”, “Continuation”
and “Continued” each refers to the
continuation of a LIBOR Loan from one Interest Period to another Interest
Period pursuant to Section 2.6.


 


5





















 


“Convert”, “Conversion” and
“Converted” each refers to the conversion
of a Term Loan of one Type into a Term Loan of another Type pursuant to Section 2.7.


 


“Credit Event” means any of the following: (a) the
making of any Loan, and (b) the Conversion or Continuation of a Loan.


 


“Credit Rating” means the rating assigned by a Rating Agency
to the senior unsecured long term Indebtedness of a Person.


 


“Default” means any of the events specified in Section 10.1.,
whether or not there has been satisfied any requirement for the giving of
notice, the lapse of time, or both.


 


“Defaulting Lender” has the meaning given that term in Section 3.11.


 


“Derivatives Contract” means any and all rate swap
transactions, basis swaps, credit derivative transactions, forward rate
transactions, commodity swaps, commodity options, forward commodity contracts,
equity or equity index swaps or options, bond or bond price or bond index swaps
or options or forward bond or forward bond price or forward bond index
transactions, interest rate options, forward foreign exchange transactions, cap
transactions, floor transactions, collar transactions, currency swap
transactions, cross-currency rate swap transactions, currency options, spot
contracts, or any other similar transactions or any combination of any of the
foregoing (including any options to enter into any of the foregoing), whether
or not any such transaction is governed by or subject to any master
agreement.  Not in limitation of the
foregoing, the term “Derivatives Contract” includes any and all transactions of
any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International
Foreign Exchange Master Agreement, or any other master agreement, including any
such obligations or liabilities under any such master agreement.


 


“Derivatives Termination
Value” means, in
respect of any one or more Derivatives Contracts, after taking into account the
effect of any legally enforceable netting agreement relating to such
Derivatives Contracts, (a) for any date on or after the date such
Derivatives Contracts have been closed out and termination value(s) determined
in accordance therewith, such termination value(s), and (b) for any date
prior to the date referenced in clause (a) the amount(s) determined as the
mark-to-market value(s) for such Derivatives Contracts, as determined based
upon one or more mid-market or other readily available quotations provided by
any recognized dealer in such Derivatives Contracts (which may include any
Lender).


 


“Development Property”
means a Property under development at the date of determination that has not
achieved an Occupancy Rate of at least 80%, or on which the improvements (other
than tenant improvements on unoccupied space) related to the development of
such Property have not been completed. A Development Property on which all
improvements (other than tenant improvements on unoccupied space) related to
the development of such Property have been completed for at least 12 months
shall cease to constitute a Development


 


6





















 


Property notwithstanding the fact that such Property has not achieved
an Occupancy Rate of at least 80%.


 


“Dollars” or “$” means the
lawful currency of the United States of America.


 


“EBITDA”
means, with respect to a Person for any period (without duplication): (a) net
income (loss) of such Person for such period determined on a consolidated
basis, in accordance with GAAP, exclusive of the following (but only to the
extent included in the determination of such net income (loss)): (i) depreciation
and amortization; (ii) Interest Expense; (iii) income tax expense;
and (iv) extraordinary or non-recurring gains and losses; plus (b) such
Person’s pro rata share of EBITDA of its Unconsolidated Affiliates.  EBITDA shall be adjusted to remove any impact from amortization
of intangibles pursuant to Statement of Financial Accounting Standards number
141.


 


“Effective Date” means the later of: (a) the Agreement
Date and (b) the date on which all of the conditions precedent set forth
in Section 5.1. shall have been fulfilled or waived in writing by the
Requisite Lenders.


 


“Eligible Assignee” means any Person who is, at the time of
determination: (i)  a Lender or an affiliate of a Lender; (ii) a
commercial bank, trust, trust company, insurance company, investment bank or
pension fund organized under the laws of the United States of America, or any
state thereof, and having total assets in excess of $5,000,000,000; (iii) a
savings and loan association or savings bank organized under the laws of the
United States of America, or any state thereof, and having a tangible net worth
of at least $500,000,000; or (iv) a commercial bank organized under the
laws of any other country which is a member of the Organization for Economic
Cooperation and Development, or a political subdivision of any such country,
and having total assets in excess of $10,000,000,000, provided that such bank
is acting through a branch or agency located in the United States of
America.  Notwithstanding the foregoing,
while an Event of Default under subsection (a), (b), (e), (f) or (g) of
Section 10.1. exists, “Eligible
Assignee” shall mean any Person that is not an individual.


 


“Eligible Property” means a Property which satisfies all
of the following requirements: (a) such Property is fully developed as (i) a
retail property or (ii) an office property; (b) such Property is
owned, or leased under a Ground Lease, by the Borrower and/or a Guarantor; (c) neither
such Property, nor any interest of the Borrower or any Subsidiary therein, is
subject to any Lien (other than Permitted Liens of the types referred to in
clauses (a) through (e) of the definition of Permitted Liens) or a
Negative Pledge; (d) if such Property is owned or leased by a Guarantor (i) none
of the Borrower’s direct or indirect ownership interest in such Guarantor is
subject to any Lien (other than Permitted Liens of the types referred to in
clauses (a) through (e) of the definition of Permitted Liens) or to a
Negative Pledge; and (ii) the Borrower directly, or indirectly through a
Subsidiary, has the right to take the following actions without the need to
obtain the consent of any Person: (x) to sell, transfer or otherwise
dispose of such Property and (y) to create a Lien on such Property as
security for Indebtedness of the Borrower or such Guarantor, as applicable; and
(e) such Property is free of all structural defects or major architectural
deficiencies, title defects, environmental conditions or other adverse matters
except


 


7





















 


for defects, deficiencies, conditions or other matters individually or
collectively which are not material to the profitable operation of such
Property.


 


“Environmental Laws” means any Applicable Law relating to
environmental protection or the manufacture, storage, remediation, disposal or
clean-up of Hazardous Materials including, without limitation, the following:
Clean Air Act, 42 U.S.C. § 7401 et seq.; Federal Water Pollution Control
Act, 33 U.S.C. § 1251 et seq.; Solid Waste Disposal Act, as amended by the
Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.;
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
§ 9601 et seq.; National Environmental Policy Act, 42 U.S.C. § 4321
et seq.; regulations of the Environmental Protection Agency and any applicable rule of
common law and any judicial interpretation thereof relating primarily to the
environment or Hazardous Materials.


 


“Equity Interest” means, with respect to any Person, any
share of capital stock of (or other ownership or profit interests in) such
Person, any warrant, option or other right for the purchase or other
acquisition from such Person of any share of capital stock of (or other
ownership or profit interests in) such Person, any security convertible into or
exchangeable for any share of capital stock of (or other ownership or profit
interests in) such Person or warrant, right or option for the purchase or other
acquisition from such Person of such shares (or such other interests), and any
other ownership or profit interest in such Person (including, without
limitation, partnership, member or trust interests therein), whether voting or
nonvoting, and whether or not such share, warrant, option, right or other
interest is authorized or otherwise existing on any date of determination.


 


“Equity Issuance” means any issuance by a Person of any
Equity Interest in such Person and shall in any event include the issuance of
any Equity Interest upon the conversion or exchange of any security
constituting Indebtedness that is convertible or exchangeable, or is being
converted or exchanged, for Equity Interests.


 


“ERISA” means the Employee Retirement Income Security Act of
1974, as in effect from time to time.


 


“ERISA Group” means the Borrower, any Subsidiary and all
members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control which, together with the
Borrower or any Subsidiary, are treated as a single employer under Section 414
of the Internal Revenue Code.


 


“Event of Default” means any of the events specified in Section 10.1.,
provided that any requirement for notice or lapse of time or any other
condition has been satisfied.


 


“Excluded Subsidiary” means any Subsidiary (a) holding
title to assets which are or are to become collateral for any Combined Secured
Indebtedness of such Subsidiary and (b) which is prohibited from
Guarantying the Indebtedness of any other Person pursuant to (i) any
document, instrument or agreement evidencing such Combined Secured Indebtedness
or (ii) a provision of such Subsidiary’s organizational documents which
provision was included in such Subsidiary’s


 


8





















 


organizational documents as a condition to the extension of such
Combined Secured Indebtedness.


 


“Extension Option” has the meaning given that term in Section 2.9.


 


“Extension Request” has the meaning given that term in Section 2.9.


 


“Facility Fee” means the per annum percentage set forth in
the table below corresponding to the Level at which the “Applicable Margin” is
determined in accordance with the definition thereof:


 


	
  Level

  	
   

  	
  Borrower’s Credit Rating

  (S&P/Moody’s)

  	
   

  	
  Facility Fee

  	
   

  
	
  1

  	
   

  	
  A-/A3

  	
   

  	
  0.125

  	
  %

  
	
  2

  	
   

  	
  BBB+/Baa1

  	
   

  	
  0.150

  	
  %

  
	
  3

  	
   

  	
  BBB/Baa2

  	
   

  	
  0.150

  	
  %

  
	
  4

  	
   

  	
  BBB-/Baa3

  	
   

  	
  0.200

  	
  %

  
	
  5

  	
   

  	
  < BBB-/Baa3

  	
   

  	
  0.250

  	
  %

  



 


As of the Agreement Date, and thereafter until any change in the Level
as provided in the definition of “Applicable Margin”, the Facility Fee equals
0.200%.


 


“Fair Market Value” means, with respect to (a) a
security listed on a national securities exchange or the NASDAQ National
Market, the price of such security as reported on such exchange or the NASDAQ
National Market by any widely recognized reporting method customarily relied
upon by financial institutions and (b) with respect to any other property,
the price which could be negotiated in an arm’s-length free market transaction,
for cash, between a willing seller and a willing buyer, neither of which is
under pressure or compulsion to complete the transaction.


 


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


 


“Fees” means the fees and commissions provided for or
referred to in Section 3.6. and any other fees payable by the Borrower
hereunder or under any other Loan Document.


 


“Fixed Charges” means, for any period, the sum of (a) Interest
Expense of the Combined Group determined on a Combined basis for such period, (b) all
regularly scheduled principal payments made with respect to Combined Total
Indebtedness during such period, other than any


 


9





















 


balloon, bullet or similar principal payment which repays such
Indebtedness in full, and (c) all Preferred Dividends paid during such
period.  The Borrower’s pro rata share of
the Fixed Charges of Unconsolidated Affiliates of the Borrower shall be
included in determinations of Fixed Charges.


 


“Foreign
Lender” means any Lender that is organized under the laws of a
jurisdiction other than the United States of America, any State thereof or the
District of Columbia.


 


“Funds From Operations” means, with respect to a Person and
for a given period, (a) net income (loss) of such Person determined on a
consolidated basis for such period minus (or plus) (b) gains
(or losses) from debt restructuring and sales of property during such period plus
(c) depreciation with respect to such Person’s real estate assets and
amortization (other than amortization of deferred financing costs) of such
Person for such period, all after adjustment for unconsolidated partnerships
and joint ventures.  Adjustments for
unconsolidated entities will be calculated to reflect funds from operations on
the same basis.


 


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


 


“Governmental Approvals” means all authorizations, consents,
approvals, licenses and exemptions of, registrations and filings with, and
reports to, all Governmental Authorities.


 


“Governmental Authority” means any national, state or local
government (whether domestic or foreign), any political subdivision thereof or
any other governmental, quasi-governmental, judicial, public or statutory
instrumentality, authority, body, agency, bureau, commission, board, department
or other entity (including, without limitation, the Federal Deposit Insurance
Corporation, the Comptroller of the Currency or the Federal Reserve Board, any
central bank or any comparable authority) or any arbitrator with authority to
bind a party at law.


 


“Ground Lease” means a ground
lease containing the following terms and conditions: (a) a remaining term
(exclusive of any unexercised extension options) of 40 years or more from the
Agreement Date; (b) the right of the lessee to mortgage and encumber its interest
in the leased property without the consent of the lessor; (c) the
obligation of the lessor to give the holder of any mortgage Lien on such leased
property written notice of any defaults on the part of the lessee and agreement
of such lessor that such lease will not be terminated until such holder has had
a reasonable opportunity to cure or complete foreclosures, and fails to do so; (d) reasonable
transferability of the lessee’s interest under such lease, including ability to
sublease; and (e) such other rights customarily required by mortgagees
making a loan secured by the interest of the holder of the leasehold estate
demised pursuant to a ground lease.


 


“Guarantor” means the Operating Partnerships and any other
Person that is or becomes a party to the Guaranty as a “Guarantor.”


 


10





















 


“Guaranty”, “Guaranteed”, “Guarantying” or to “Guarantee”
as applied to any obligation means and includes:  (a) a guaranty (other than by
endorsement of negotiable instruments for collection or deposit in the ordinary
course of business), directly or indirectly, in any manner, of any part or all
of such obligation, or (b) an agreement, direct or indirect, contingent or
otherwise, and whether or not constituting a guaranty, the practical effect of
which is to assure the payment or performance (or payment of damages in the
event of nonperformance) of any part or all of such obligation whether by: (i) the
purchase of securities or obligations, (ii) the purchase, sale or lease
(as lessee or lessor) of property or the purchase or sale of services primarily
for the purpose of enabling the obligor with respect to such obligation to make
any payment or performance (or payment of damages in the event of
nonperformance) of or on account of any part or all of such obligation, or to
assure the owner of such obligation against loss, (iii) the supplying of
funds to or in any other manner investing in the obligor with respect to such
obligation, (iv) repayment of amounts drawn down by beneficiaries of
letters of credit, or (v) the supplying of funds to or investing in a
Person on account of all or any part of such Person’s obligation under a
Guaranty of any obligation or indemnifying or holding harmless, in any way,
such Person against any part or all of such obligation.  As the context requires, “Guaranty” shall
also mean the Guaranty to which the Guarantors are parties substantially in the
form of Exhibit G.


 


“Hazardous Materials” means all or any of the following: (a) substances
that are defined or listed in, or otherwise classified pursuant to, any
applicable Environmental Laws as “hazardous substances”, “hazardous materials”,
“hazardous wastes”, “toxic substances” or any other formulation intended to
define, list or classify substances by reason of deleterious properties such as
ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity, “TCLP”
toxicity or “EP toxicity”; (b) oil, petroleum or petroleum derived
substances, natural gas, natural gas liquids or synthetic gas and drilling
fluids, produced waters and other wastes associated with the exploration,
development or production of crude oil, natural gas or geothermal resources; (c) any
flammable substances or explosives or any radioactive materials; (d) asbestos
in any form; (e) toxic mold; and (f) electrical equipment which
contains any oil or dielectric fluid containing levels of polychlorinated
biphenyls in excess of fifty parts per million.


 


“Heritage OP” means Heritage Property Investment Limited
Partnership, a Delaware limited partnership.


 


“Indebtedness” means, with respect to a Person, at
the time of computation thereof, all of the following (without duplication): (a) all
obligations of such Person in respect of money borrowed (other than trade debt
incurred in the ordinary course of business which is not more than 60 days past
due); (b) all obligations of such Person, whether or not for money
borrowed (i) represented by notes payable, or drafts accepted, in each
case representing extensions of credit, (ii) evidenced by bonds,
debentures, notes or similar instruments, or (iii) constituting purchase
money indebtedness, conditional sales contracts, title retention debt
instruments or other similar instruments, upon which interest charges are
customarily paid or that are issued or assumed as full or partial payment for
property or services rendered; (c) Capitalized Lease Obligations of such
Person; (d) all reimbursement obligations (contingent or otherwise) of
such Person in respect of any letters of credit or acceptances (whether or not
the same have been


 


11





















 


presented for payment); (e) all Off-Balance Sheet Obligations of
such Person; (f) all obligations of such Person to purchase, redeem,
retire, defease or otherwise make any payment in respect of any Mandatorily
Redeemable Stock issued by such Person or any other Person, valued at the
greater of its voluntary or involuntary liquidation preference plus accrued and
unpaid dividends; (g) all obligations of such Person in respect of any
purchase obligation, repurchase obligation, takeout commitment or forward
equity commitment, in each case evidenced by a binding agreement (excluding any
such obligation to the extent the obligation can be satisfied by the issuance
of Equity Interests (other than Mandatorily Redeemable Stock) at the option of
such Person); (h) net obligations under any Derivatives Contract not
entered into as a hedge against existing Indebtedness, in an amount equal to
the Derivatives Termination Value thereof; (i) all Indebtedness of other
Persons which such Person has Guaranteed or is otherwise recourse to such
Person (except for guaranties of customary exceptions for fraud, misapplication
of funds, environmental indemnities and other similar exceptions to recourse
liability (but not exceptions relating to bankruptcy, insolvency, receivership
or other similar events)); (j) all Indebtedness of another Person secured
by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on property or assets owned
by such Person, even though such Person has not assumed or become liable for
the payment of such Indebtedness or other payment obligation; and (k) such
Person’s pro rata share of the Indebtedness of any Unconsolidated Affiliate of
such Person.  Indebtedness of any Person
shall include Indebtedness of any partnership or joint venture in which such
Person is a general partner or joint venturer to the extent of such Person’s
pro rata share of the ownership of such partnership or joint venture (except if
such Indebtedness, or portion thereof, is recourse to such Person, in which
case the greater of such Person’s pro rata portion of such Indebtedness or the
amount of the recourse portion of the Indebtedness, shall be included as
Indebtedness of such Person).  All Loans
shall constitute Indebtedness of the Borrower.


 


“Intellectual Property” has the meaning given that term in Section 6.1.(r).


 


“Interest Expense” means, for any period, without
duplication, (a) total interest expense of the Combined Group, including
capitalized interest not funded under a construction loan interest reserve
account, determined on a Combined basis in accordance with GAAP for such
period, plus (b) the Borrower’s pro rata share of Interest Expense of
Unconsolidated Affiliates for such period.


 


“Interest Period” means with respect to any LIBOR Loan, each
period commencing on the date such LIBOR Loan is made or the last day of the
next preceding Interest Period for such Loan and ending 1, 2 or 3 months
thereafter, as the Borrower may select in the request for the Term Loans given
pursuant to Section 5.1.(a)(xii), Notice of Continuation or Notice of
Conversion, as the case may be, except that each Interest Period that commences
on the last Business Day of a calendar month, or on a day for which there is no
corresponding day in the appropriate subsequent calendar month, shall end on
the last Business Day of the appropriate subsequent calendar month.  Notwithstanding the foregoing: (a) if
any Interest Period would otherwise end after the Termination Date, such
Interest Period shall end on the Termination Date; and (b) each Interest
Period that would otherwise end on a day which is not a Business Day shall end
on the immediately following Business Day (or, if such immediately following
Business Day falls in the next calendar month, on the immediately preceding
Business Day).


 


12





















 


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


 


“Investment” means, with respect to any Person, any
acquisition or investment (whether or not of a controlling interest) by such
Person, by means of any of the following: 
(a) the purchase or other acquisition of any Equity Interest in
another Person, (b) a loan, advance or extension of credit to, capital
contribution to, Guaranty of Indebtedness of, or purchase or other acquisition
of any Indebtedness of, another Person, including any partnership or joint
venture interest in such other Person, or (c) the purchase or other
acquisition (in one transaction or a series of transactions) of assets of
another Person that constitute the business or a division or operating unit of
another Person.  Any binding commitment
to make an Investment in any other Person, as well as any option of another
Person to require an Investment in such Person, shall constitute an Investment.  Except as expressly provided otherwise, for
purposes of determining compliance with any covenant contained in a Loan
Document, the amount of any Investment shall be the amount actually invested,
without adjustment for subsequent increases or decreases in the value of such
Investment.


 


“Lender” means each financial institution from time to time
party hereto as a “Lender”, together with its respective successors and
permitted assigns.


 


“Lending Office” means, for each Lender and for each Type of
Loan, the office of such Lender specified as such on its signature page hereto
or in the applicable Assignment and Acceptance Agreement, or such other office
of such Lender of which such Lender may notify the Agent in writing from time
to time.


 


“Level” has the meaning given that term in
the definition of the term “Applicable Margin.”


 


“LIBOR”
means, for any LIBOR Loan for any Interest Period therefor, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on
Telerate Page 3750 (or any successor page) as the London interbank offered
rate for deposits in Dollars at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period.  If
for any reason such rate is not available, the term “LIBOR” shall mean, for any
LIBOR Loan for any Interest Period therefor, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on the Reuters
Screen LIBO Page as the London interbank offered rate for deposits in
Dollars at approximately 11:00 a.m. (London time) two Business Days prior
to the first day of such Interest Period for a term comparable to such Interest
Period; provided, however, if more than one rate is specified on the Reuters
Screen LIBO Page, the applicable rate shall be the arithmetic mean of all such
rates. If for any reason
none of the foregoing rates is available, LIBOR shall be, for any Interest
Period, the rate per annum reasonably determined by the Agent as the rate of
interest at which Dollar deposits in the approximate amount of the LIBOR Loan
would be offered by the Lender then acting as the Agent to major banks in the
London interbank Eurodollar market at their request at or about 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest Period
for a term comparable to such Interest Period.


 


13





















 


“LIBOR Loan” means a Term Loan bearing interest at a rate
based on LIBOR.


 


“Lien” as applied to the property of any Person means:  (a) any security interest, encumbrance,
mortgage, deed to secure debt, deed of trust, assignment of leases and rents,
pledge, lien, charge or lease constituting a Capitalized Lease Obligation,
conditional sale or other title retention agreement, or other security title or
encumbrance of any kind in respect of any property of such Person, or upon the
income, rents or profits therefrom; (b) any arrangement, express or
implied, under which any property of such Person is transferred, sequestered or
otherwise identified for the purpose of subjecting the same to the payment of
Indebtedness or performance of any other obligation in priority to the payment
of the general, unsecured creditors of such Person; (c) the filing of any
financing statement under the Uniform Commercial Code or its equivalent in any
jurisdiction, other than any precautionary filing not otherwise constituting or
giving rise to a Lien, including a financing statement filed (i) in
respect of a lease not constituting a Capitalized Lease Obligation pursuant to Section 9-505
(or a successor provision) of the Uniform Commercial Code or its equivalent as
in effect in an applicable jurisdiction or (ii) in connection with a sale
or other disposition of accounts or other assets not prohibited by this
Agreement in a transaction not otherwise constituting or giving rise to a Lien;
and (d) any agreement by such Person to grant, give or otherwise convey
any of the foregoing.


 


“Loan” means a Term Loan.


 


“Loan Documents” means this Agreement, each Note, the
Guaranty and each other document or instrument now or hereafter executed and
delivered by a Loan Party in connection with, pursuant to or relating to this
Agreement.


 


“Loan Party” means the Borrower, each Guarantor and each
other Person who pledges any collateral security to secure all or a portion of
the Obligations.  Schedule 1.1.(A) sets
forth the Loan Parties in addition to the Borrower as of the Agreement Date.


 


“Mandatorily Redeemable
Stock” means, with respect to any Person, any Equity Interest of
such Person which by the terms of such Equity Interest (or by the terms of any
security into which it is convertible or for which it is exchangeable or
exercisable), upon the happening of any event or otherwise, (a) matures or
is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise
(other than an Equity Interest to the extent redeemable in exchange for common
stock or other equivalent common Equity Interests), (b) is convertible
into or exchangeable or exercisable for Indebtedness or Mandatorily Redeemable
Stock, or (c) is redeemable at the option of the holder thereof, in whole
or in part (other than an Equity Interest which is redeemable solely in
exchange for common stock or other equivalent common Equity Interests), in each
case on or prior to the date on which all Term Loans are scheduled to be due
and payable in full.


 


“Material Adverse Effect” means a materially adverse effect
on (a) the business, assets, liabilities, condition (financial or
otherwise) or results of operations of the Borrower and its Subsidiaries taken
as a whole, (b) the ability of the Borrower or any other Loan Party to
perform its obligations under any Loan Document to which it is a party, (c) the
validity or enforceability


 


14





















 


of any of the Loan Documents or (d) the rights and remedies of the
Lenders and the Agent under any of the Loan Documents.


 


“Material Subsidiary” means any Subsidiary to which more than
5.0% of Adjusted Combined Total Asset Value is attributable on an individual
basis.


 


“Moody’s” means Moody’s Investors Service, Inc., and its
successors.


 


“Mortgage” means a mortgage, deed of trust, deed to secure
debt or similar security instrument made by a Person owning an interest in real
property granting a Lien on such interest in real property as security for the
payment of Indebtedness of such Person or another Person.


 


“Mortgage Receivable” means a promissory note secured by a
Mortgage of which the Borrower, a Guarantor or one of their respective
Subsidiaries is the holder and retains the rights of collection of all payments
thereunder.


 


“Multiemployer Plan” means at any time a multiemployer plan
within the meaning of Section 4001(a)(3) of ERISA to which any member
of the ERISA Group is then making or accruing an obligation to make
contributions or has within the preceding five plan years made contributions,
including for these purposes any Person which ceased to be a member of the
ERISA Group during such five year period.


 


“Negative Pledge” means, with respect to a given asset, any
provision of a document, instrument or agreement (other than any Loan Document
and the Revolving Credit Agreement) which prohibits or purports to prohibit the
creation or assumption of any Lien on such asset as security for Indebtedness
of the Person owning such asset or any other Person; provided, however, that an
agreement that conditions a Person’s ability to encumber its assets upon the
maintenance of one or more specified ratios that limit such Person’s ability to
encumber its assets but that do not generally prohibit the encumbrance of its
assets, or the encumbrance of specific assets, shall not constitute a Negative
Pledge.


 


“Net Operating Income” or “NOI” means,
for any Property and for a given period, an amount equal to (a) the sum of
the gross revenues for such Property for such fiscal period received in the
ordinary course of business (excluding pre-paid rents and revenues and security
deposits except to the extent applied in satisfaction of tenants’ obligations
for rent) minus (b) all operating expenses incurred with respect to
such Property for such fiscal period (including an appropriate accrual for
property taxes and insurance); provided that there shall be deducted from such
amount (to the extent not duplicative of a deduction already taken in the
calculation of Net Operating Income), on a pro rata basis for such period,
management expenses computed at an annual rate equal to the greater of (i) an
imputed management fee in the amount of 3% of the annualized gross revenue of
such Property or (ii) the annualized amount of management fees actually
incurred with respect to such Property. 
The Borrower may perform the preceding calculation on an aggregate basis
for all such Properties wherever the context would appropriately permit or
warrant the use of an aggregate calculation.


 


15





















 


“Net Proceeds” means with respect to any Equity Issuance by a
Person, the aggregate amount of all cash and the Fair Market Value of all other
property (other than securities of such Person being converted or exchanged in
connection with such Equity Issuance) received by such Person in respect of
such Equity Issuance net of investment banking fees, legal fees, accountants’
fees, underwriting discounts and commissions and other customary fees and
expenses actually incurred by such Person in connection with such Equity
Issuance.


 


“Nonrecourse Indebtedness”
means, with respect to a Person, (a) Indebtedness for borrowed money in
respect of which recourse for payment (except for customary exceptions for
fraud, fraudulent conveyance, intentional misrepresentation, misappropriation
of funds or other property, misapplication of funds (including without
limitation rents, profits, tenant deposits or insurance or condemnation
proceeds), mismanagement or waste, tax, ERISA, environmental and other
regulatory law indemnities, nonpayment of utilities, operations and maintenance
expenses and obligations secured by statutory liens, failure to comply with
legal requirements necessary to maintain the tax-exemption on the interest on
such Indebtedness (if applicable), failure to insure or failure to pay transfer
fees and charges due the lender in connection with any sale or other transfer
of the Property subject to such Indebtedness and any fees and expenses (and interest
thereon) of the holder of such Indebtedness in connection with the enforcement
of such recourse obligations (but not
exceptions relating to bankruptcy, insolvency, receivership or other similar
events)) is contractually limited to specific assets of such Person
encumbered by a Lien securing such Indebtedness or (b) if such Person is a
Single Asset Entity, any Indebtedness for borrowed money of such Person.  Indebtedness of the Borrower and the
Operating Partnerships under the PMCC Loan Agreement and the PMCC Indemnity
shall constitute Nonrecourse Indebtedness.


 


“Note” has the
meaning given that term in Section  2.8.


 


“Notice of Borrowing” means a notice in the form of Exhibit H
to be delivered to the Agent pursuant to Section 2.1.(b) evidencing the Borrower’s request for a borrowing of
Term Loans.


 


“Notice of Continuation” means a notice in the form of Exhibit B
to be delivered to the Agent pursuant to Section 2.6. evidencing the
Borrower’s request for the Continuation of a LIBOR Loan.


 


“Notice of Conversion” means a notice in the form of Exhibit C
to be delivered to the Agent pursuant to Section 2.7. evidencing the
Borrower’s request for the Conversion of a Loan from one Type to another Type.


 


“Obligations” means, individually and collectively: (a) the
aggregate principal balance of, and all accrued and unpaid interest on, all
Loans and (b) all other indebtedness, liabilities, obligations, covenants
and duties of the Borrower and the other Loan Parties owing to the Agent or any
Lender of every kind, nature and description, under or in respect of this
Agreement or any of the other Loan Documents, including, without limitation,
the Fees and indemnification obligations, whether direct or indirect, absolute
or contingent, due or not due, contractual or tortious, liquidated or
unliquidated, and whether or not evidenced by any promissory note.


 


16





















 


“Occupancy Rate” means, with respect to a Property at any
time, the ratio, expressed as a percentage, of (a) the net rentable square
footage of such Property actually occupied by tenants that are not Affiliates
paying rent at rates not materially less than rates generally prevailing at the
time the applicable lease was entered into (subject to concessions offered in
connection with the management of such Property) pursuant to binding leases as
to which no monetary default has occurred and has continued unremedied for 30
or more days to (b) the aggregate net rentable square footage units of
such Property.  For purposes of the
definition of “Occupancy Rate”, a tenant shall be deemed to actually occupy a
Property notwithstanding a temporary cessation of operations for renovation,
repairs or other temporary reason, or for the purpose of completing tenant
build-out or that is otherwise scheduled to be open for business within 90 days
of such date.


 


“OFAC” means U.S. Department of the Treasury’s Office of
Foreign Assets Control and any successor Governmental Authority.


 


“Off-Balance Sheet
Obligations” means
liabilities and obligations of the Borrower, any Subsidiary or any other Person
in respect of “off-balance sheet arrangements” (as defined in the SEC
Off-Balance Sheet Rules) which the Borrower would be required to disclose in
the “Management’s Discussion and Analysis of Financial Condition and Results of
Operations” section of the Borrower’s report on Form 10-Q or Form 10-K
(or their equivalents) which the Borrower is required to file with the
Securities and Exchange Commission (or any Governmental Authority substituted
therefor).  As used in this definition,
the term “SEC Off-Balance Sheet Rules” means the Disclosure in Management’s
Discussion and Analysis About Off-Balance Sheet Arrangements, Securities Act
Release No. 33-8182, 68 Fed. Reg. 5982 (Feb. 5, 2003) (codified at 17
CFR pts. 228, 229 and 249).


 


“Operating Partnership” means the Bradley OP or the Heritage
OP.


 


“Participant” has the meaning given that term in Section 12.5.(c).


 


“PBGC” means the Pension Benefit Guaranty Corporation and any
successor agency.


 


“Permitted Liens” means, as to any Person: (a) Liens
securing taxes, assessments and other charges or levies imposed by any
Governmental Authority (excluding any Lien imposed pursuant to any of the
provisions of ERISA or pursuant to any Environmental Laws) or the claims of
materialmen, mechanics, carriers, warehousemen or landlords for labor,
materials, supplies or rentals incurred in the ordinary course of business,
which are not at the time required to be paid or discharged under Section 7.6.;
(b) Liens consisting of deposits or pledges made, in the ordinary course
of business, in connection with, or to secure payment of, obligations under
workers’ compensation, unemployment insurance or similar Applicable Laws; (c) Liens
consisting of encumbrances in the nature of zoning restrictions, easements, and
rights or restrictions of record on the use of real property, which do not
materially detract from the value of such property or impair the intended use
thereof in the business of such Person; (d) the rights of tenants under leases
or subleases not interfering with the ordinary conduct of business of such
Person; (e) Liens in favor of the Agent for the benefit of the Lenders; (f) Liens
in favor of the Borrower or a Guarantor securing obligations owing by a
Subsidiary to the Borrower or such


 


17





















 


Guarantor; (g) Liens in existence as of the Agreement Date and set
forth in Part II of Schedule 6.1.(f); and (h) Liens securing judgments that do
not otherwise give rise to a Default or Event of Default.


 


“Person” means an individual, corporation, partnership,
limited liability company, association, trust or unincorporated organization,
or a government or any agency or political subdivision thereof.


 


“Plan” means at any time an employee pension benefit plan
(other than a Multiemployer Plan) which is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 of the Internal
Revenue Code and either (a) is maintained, or contributed to, by any
member of the ERISA Group for employees of any member of the ERISA Group or (b) has
at any time within the preceding five years been maintained, or contributed to,
by any Person which was at such time a member of the ERISA Group for employees
of any Person which was at such time a member of the ERISA Group.


 


“PMCC Indemnity” means the Indemnity and Guaranty Agreement
dated as of September 18, 2000 by the Borrower in favor of Prudential
Mortgage Capital Company, LLC.


 


“PMCC Loan Agreement” means the Loan Agreement dated as of September 18,
2000 between Heritage SPE LLC and Prudential Mortgage Capital Company, LLC.


 


“Post-Default Rate” means, in respect of any principal of any
Loan or any other Obligation that is not paid when due (whether at stated
maturity, by acceleration, by optional or mandatory prepayment or otherwise), a
rate per annum equal to the Base Rate as in effect from time to time plus
the Applicable Margin for Base Rate Loans plus two percent (2.0%).


 


“Preferred Dividends” means, for any period and without
duplication, all Restricted Payments paid during such period on Preferred
Equity Interests issued by the Borrower or a Subsidiary.  Preferred Dividends shall not include
dividends or distributions (a) paid or payable solely in Equity Interests
(other than Mandatorily Redeemable Stock) payable to holders of such class of
Equity Interests, (b) paid or payable to the Borrower or a Subsidiary, or (c) constituting
or resulting in the redemption of Preferred Equity Interests, other than
scheduled redemptions not constituting balloon, bullet or similar redemptions
in full.


 


“Preferred Equity Interests” means, with respect to any
Person, Equity Interests in such Person which are entitled to preference or
priority over any other Equity Interest in such Person in respect of the
payment of dividends or distribution of assets upon liquidation or both.


 


“Prime Rate” means the rate of interest per annum announced
publicly by the Lender then acting as the Agent as its prime rate from time to
time.  The Prime Rate is not necessarily
the best or the lowest rate of interest offered by the Lender acting as the
Agent or any other Lender.


 


18





















 


“Principal Office” means the office of the Agent located at
One Wachovia Center, Charlotte, North Carolina, or such other office of the
Agent as the Agent may designate from time to time.


 


“Property” means any parcel of real property owned or leased
(in whole or in part) or operated by the Borrower, any Subsidiary or any
Unconsolidated Affiliate of the Borrower and which is located (i) in a
state of the United States of America or the District of Columbia or (ii) outside
the United States of America and the District of Columbia but only to the
extent that the value of all such Properties does not exceed 10% of Combined
Total Asset Value at any time.


 


“Rating Agencies” means S&P and Moody’s.


 


“Register” has the meaning given that term in Section 12.5.(e).


 


“Regulatory Change” means, with respect to any Lender, any
change effective after the Agreement Date in Applicable Law (including without
limitation, Regulation D of the Board of Governors of the Federal Reserve
System) or the adoption or making after such date of any interpretation,
directive or request applying to a class of banks, including such Lender, of or
under any Applicable Law (whether or not having the force of law and whether or
not failure to comply therewith would be unlawful) by any Governmental
Authority or monetary authority charged with the interpretation or
administration thereof or compliance by any Lender with any request or
directive regarding capital adequacy.


 


“REIT” means a Person qualifying for treatment as a “real
estate investment trust” under the Internal Revenue Code.


 


“REIT Note Indentures” means, collectively, (a) the
Indenture dated as of April 1, 2004 between the Borrower and the Trustee,
pursuant to which the Borrower issued $200,000,000 5.125% Notes due 2014 and (b) the
Indenture dated as of October 15, 2004 between the Borrower and the
Trustee, pursuant to which the Borrower issued $150,000,000 4.5% Notes due
2009.


 


“Requisite Lenders” means, as of any date, Lenders having at
least 66-2/3% of the aggregate amount of the Commitments (not held by
Defaulting Lenders who are not entitled to vote), or, if the Commitments have been
terminated or reduced to zero, Lenders holding at least 66-2/3% of the
principal amount of the aggregate outstanding Term Loans (not held by
Defaulting Lenders who are not entitled to vote).  Commitments and Term Loans held by Defaulting
Lenders shall be disregarded when determining the Requisite Lenders.


 


“Responsible Officer” means with respect to the Borrower or
any Subsidiary, the chief executive officer, the chief financial officer or
senior finance officer of the Borrower or such Subsidiary.


 


“Restricted Payment” means: (a) any dividend or other
distribution, direct or indirect, on account of any Equity Interest of the
Borrower or any Subsidiary now or hereafter outstanding, except a dividend
payable solely in Equity Interests of
an identical or junior class to


 


19





















 


the holders of that class; (b) any
redemption, conversion, exchange, retirement, sinking fund or similar payment,
purchase or other acquisition for value, direct or indirect, of any Equity
Interest of the Borrower or any Subsidiary now or hereafter outstanding; and (c) any
payment made to retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire any Equity Interests of the
Borrower or any Subsidiary now or hereafter outstanding.


 


“Revolving Credit Agreement” means that certain Credit
Agreement dated as of March 29, 2005 among the Borrower, each of the
financial institutions party thereto as “Lenders”, Wachovia Bank, National
Association, as Agent, and the other parties thereto.


 


“Sanctioned Entity” means (a) an agency of the
government of, (b) an organization directly or indirectly controlled by,
or (c) a Person resident in, in each case, a country that is subject to a
sanctions program identified on the list maintained by the OFAC and published
from time to time, as such program may be applicable to such agency,
organization or Person.


 


“Sanctioned Person” means a Person named on the list of
Specially Designated Nationals or Blocked Persons maintained by the OFAC as
published from time to time.


 


“Securities Act” means the Securities Act of 1933, as amended
from time to time, together with all rules and regulations issued
thereunder.


 


“Security Filing” has the meaning given that term in Section 8.4.(b).


 


“Senior Note Indentures” means, collectively, (a) each
of the REIT Note Indentures and (b) the Bradley OP Note Indenture.


 


“Single Asset Entity” means a Person (other
than an individual) that (a) only owns a single Property; (b) is
engaged only in the business of owning, developing and/or leasing such
Property; and (c) receives substantially all of its gross revenues from
such Property.  In addition, if the
assets of a Person consist solely of (i) Equity Interests in one other
Single Asset Entity and (ii) cash and other assets of nominal value
incidental to such Person’s ownership of the other Single Asset Entity, such
Person shall also be deemed to be a Single Asset Entity for purposes of this
Agreement.


 


“Significant Subsidiary” means a Subsidiary
to which more than $25,000,000 of Combined Total Asset Value is attributable.


 


“Solvent” means, when used with respect to any Person, that (a) the
fair value and the fair salable value of its assets (excluding any Indebtedness
due from any affiliate of such Person) are each in excess of the fair valuation
of its total liabilities (including all contingent liabilities computed at the
amount which, in light of all the facts and circumstances existing at such
time, represents the amount that could reasonably be expected to become an
actual and matured liability); (b) such Person is able to pay its debts or
other obligations in the ordinary course as they mature; and (c) such
Person has capital not unreasonably small to carry on its business and all
business in which it proposes to be engaged.


 


20





















 


“S&P” means Standard & Poor’s Rating Services, a
division of The McGraw-Hill Companies, Inc., and its successors.


 


“Subsidiary” means, for any Person, any corporation, partnership
or other entity of which at least a majority of the Equity Interests having by
the terms thereof ordinary voting power to elect a majority of the board of
directors or other individuals performing similar functions of such
corporation, partnership or other entity (without regard to the occurrence of
any contingency) is at the time directly or indirectly owned or controlled by
such Person or one or more Subsidiaries of such Person or by such Person and
one or more Subsidiaries of such Person,
and shall include all Persons the accounts of which are consolidated with those
of such Person pursuant to GAAP.


 


“Taxes” has the meaning given that term in Section 3.12.


 


“Term Loan” means a loan made by a Lender to the Borrower
pursuant to Section 2.1.


 


“Termination Date” means August 28, 2006, or such later
date to which the Termination Date may be extended pursuant to Section 2.9.


 


“Titled Agent” means the Arranger and any documentation
agent, syndication agent, or other Person awarded a similar honorific title in
connection with the Term Loan, together with their respective successors and
permitted assigns.


 


“Trustee” has the meaning given that term in the definition
of “Bradley OP Note Indenture”.


 


“Type” with respect to any Term Loan, refers to whether such
Loan is a LIBOR Loan or Base Rate Loan.


 


“Unconsolidated Affiliate” means, with respect to any Person,
any other Person in whom such Person holds an Investment, which Investment is
accounted for in the financial statements of such Person on an equity basis of accounting
and whose financial results would not be consolidated under GAAP with the
financial results of such Person on the consolidated financial statements of
such Person.


 


“Unencumbered Adjusted NOI” means, for any period, (a) Unencumbered NOI
for such period, minus (b) Capital Reserves for all Eligible Properties
for such period.


 


“Unencumbered NOI” means, for any period, NOI from all
Eligible Properties.  For purposes of
this definition, to the extent the NOI attributable to Eligible Properties that
are developed as office properties would exceed 5.0% of Unencumbered NOI, such
excess shall be excluded.


 


“Unencumbered Asset Value” means (a) the
Unencumbered NOI (excluding NOI attributable to Development Properties) for the
period of two consecutive fiscal quarters most recently ended times 2 divided
by the Capitalization Rate, plus (b) the GAAP book value of all


 


21





















 


Properties acquired during the period of two consecutive fiscal
quarters most recently ended which Properties are not subject to any Lien
(other than Permitted Liens of the types referred to in clauses (a) through
(e) of the definition of Permitted Liens) or any Negative Pledge, plus (c) the
GAAP book value of Development Properties not subject to any Lien (other than
Permitted Liens of the types referred to in clauses (a) through (e) of
the definition of Permitted Liens) or any Negative Pledge, until the earlier of
(i) the one year anniversary date of project completion or (ii) the
second quarter after the project achieves an Occupancy Rate of 80%.  For purposes of this definition, to the extent the Unencumbered
Asset Value attributable to (a) Construction-In-Process would exceed 10%
of the Unencumbered Asset Value, such excess shall be excluded, and (b) Properties
owned by Subsidiaries that are not Wholly Owned Subsidiaries (other than the
Bradley OP (and Wholly Owned Subsidiaries of the Bradley OP) so long as the
Borrower owns at least 66-2/3% of the Equity Interests issued by the Bradley
OP) would exceed 10% of the Unencumbered Asset Value, such excess shall be
excluded.


 


“Unfunded Liabilities” means, with respect to any Plan at any
time, the amount (if any) by which (a) the value of all benefit
liabilities under such Plan, determined on a plan termination basis using the
assumptions prescribed by the PBGC for purposes of Section 4044 of ERISA,
exceeds (b) the fair market value of all Plan assets allocable to such
liabilities under Title IV of ERISA (excluding any accrued but unpaid
contributions), all determined as of the then most recent valuation date for
such Plan, but only to the extent that such excess represents a potential
liability of a member of the ERISA Group to the PBGC or any other Person under
Title IV of ERISA.


 


“Unimproved Land” means land on which no development
(other than improvements that are not material and are temporary in nature) has
occurred and for which no development is scheduled in the following 12 months.


 


“Unsecured Interest Expense” means, for a given period, all Interest Expense of the Combined
Group attributable to Combined Unsecured Indebtedness of the Combined Group for
such period.


 


“Wachovia” means Wachovia Investment Holdings, LLC, together
with its successors and assigns.


 


“Wholly Owned Subsidiary” means any Subsidiary of a Person in
respect of which all of the voting equity securities (other than, in the case
of a corporation, directors’ qualifying shares) are at the time directly or
indirectly owned or controlled by such Person or one or more other Subsidiaries
of such Person or by such Person and one or more other Subsidiaries of such
Person.


 


Section 1.2. 
General; References to Times.


 


Unless
otherwise indicated, all accounting terms, ratios and measurements shall be
interpreted or determined in accordance with GAAP; provided that, if at any
time any change in GAAP would affect the computation of any financial ratio or
requirement set forth in any Loan Document, and either the Borrower or the
Requisite Lenders shall so request, the Agent, the Lenders and the Borrower
shall negotiate in good faith to amend such ratio or requirement to


 


22





















 


preserve the original intent thereof in light of such change in GAAP
(subject to the approval of the Requisite Lenders); provided further that,
until so amended, (i) such ratio or requirement shall continue to be
computed in accordance with GAAP prior to such change therein and (ii) the
Borrower shall provide to the Agent and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.  References in this Agreement to “Sections”, “Articles”,
“Exhibits” and “Schedules” are to sections, articles, exhibits and schedules
herein and hereto unless otherwise indicated. 
References in this Agreement to any document, instrument or agreement (a) shall
include all exhibits, schedules and other attachments thereto, (b) shall
include all documents, instruments or agreements issued or executed in
replacement thereof, to the extent permitted hereby and (c) shall mean
such document, instrument or agreement, or replacement or predecessor thereto,
as amended, supplemented, restated or otherwise modified as of the date of this
Agreement and from time to time thereafter to the extent not prohibited hereby
and in effect at any given time. 
Wherever from the context it appears appropriate, each term stated in
either the singular or plural shall include the singular and plural, and
pronouns stated in the masculine, feminine or neuter gender shall include the
masculine, the feminine and the neuter. 
Unless explicitly set forth to the contrary, a reference to “Subsidiary”
means a Subsidiary of the Borrower or a Subsidiary of such Subsidiary and a
reference to an “Affiliate” means a reference to an Affiliate of the
Borrower.  Titles and captions of
Articles, Sections, subsections and clauses in this Agreement are for
convenience only, and neither limit nor amplify the provisions of this
Agreement.  Unless otherwise indicated,
all references to time are references to Charlotte, North Carolina time.


 


Section 1.3. 
Financial Attributes of Non-Wholly Owned Subsidiaries.


 


When
determining the Borrower’s compliance with any financial covenant contained in
any of the Loan Documents, only the Borrower’s pro rata share of the financial
attributes of a Subsidiary that is not a Wholly Owned Subsidiary (other than the Bradley OP (and Wholly Owned
Subsidiaries of the Bradley OP) so long as the Borrower owns at least 66-2/3%
of the Equity Interests issued by the Bradley OP) shall be included.


 


ARTICLE II. CREDIT FACILITY


 


Section 2.1. 
Term Loans.


 


(a)           Generally.  Subject to the terms and conditions hereof,
during the period from the Effective Date to but excluding the Commitment
Termination Date, each Lender severally and not jointly agrees to make Term
Loans to the Borrower in an aggregate principal amount at any one time outstanding
up to, but not exceeding, the amount of such Lender’s Commitment.  The Borrower may request only two borrowings
of Term Loans, one in an aggregate principal amount of $50,000,000 or more to
made on the Effective Date, and the other in an aggregate principal amount
equal to the remaining Commitments to be made after the Effective Date but
before the Commitment Termination Date. 
The Borrower may not reborrow any portion of the Term Loans once repaid.


 


23





















 


(b)           Requesting Term Loans.  The Borrower shall give the Agent notice
pursuant to a Notice of Borrowing of each borrowing of Term Loans.  Each Notice of Borrowing shall be delivered
to the Agent before 11:00 a.m. (i) in the case of LIBOR Loans, on the
date three Business Days prior to the proposed date of such borrowing and (ii) in
the case of Base Rate Loans, on the date one Business Day prior to the proposed
date of such borrowing.  The Agent will
transmit by telecopy the Notice of Borrowing (or the information contained in
such Notice of Borrowing) to each Lender promptly upon receipt by the
Agent.  Each Notice of Borrowing shall be
irrevocable once given and binding on the Borrower.


 


(c)           Disbursements of Term Loan
Proceeds.  No later than 1:00 p.m.
on the date specified in the Notice of Borrowing, each Lender will make
available for the account of its applicable Lending Office to the Agent at the
Principal Office, in immediately available funds, the proceeds of the Term Loan
to be made by such Lender.  With respect
to Term Loans to be made after the Effective Date, unless the Agent shall have
been notified by any Lender prior to the specified date of borrowing that such
Lender does not intend to make available to the Agent the Term Loan to be made
by such Lender on such date, the Agent may assume that such Lender will make
the proceeds of such Term Loan available to the Agent on the date of the
requested borrowing as set forth in the Notice of Borrowing and the Agent may
(but shall not be obligated to), in reliance upon such assumption, make
available to the Borrower the amount of such Term Loan to be provided by such
Lender.  Subject to satisfaction of the
applicable conditions set forth in Article V. for such borrowing, the Agent will make the proceeds of such
borrowing available to the Borrower no later than 2:00 p.m. on the date
and at the account specified by the Borrower in such Notice of Borrowing.


 


Section 2.2. 
Rates and Payment of Interest on Loans.


 


(a)                                Rates.  The Borrower promises to pay to the Agent for
the account of each Lender interest on the unpaid principal amount of the Term
Loans made by such Lender for the period from and including the date of the making
of such Loan to but excluding the date such Loan shall be paid in full, at the
following per annum rates:


 


(i)            during
such periods as such Loan is a Base Rate Loan, at the Base Rate (as in effect
from time to time) plus the Applicable Margin plus the Facility Fee; and


 


(ii)           during
such periods as such Loan is a LIBOR Loan, at Adjusted LIBOR for such Loan for
the Interest Period therefor plus (x) to the extent such period occurs on
or before May 28, 2006, 0.90% and (y) to the extent such period
occurs after such date, the Applicable Margin plus the Facility Fee.


 


Notwithstanding the
forgoing, 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 shall bear interest at a rate per annum equal
to the Post-Default Rate until such amount shall be paid in full (after as well
as before judgment).


 


(b)           Payment of Interest.  Accrued and unpaid interest on each Loan
shall be payable (i) in the case of a Base Rate Loan, monthly in arrears
on the first day of each calendar month, (ii) in the case of a LIBOR Loan,
in arrears on the last day of each Interest Period therefor, and


 


24





















 


(iii) in the case of any Loan, in arrears upon the payment,
prepayment or Continuation thereof or the Conversion of such Loan to a Loan of
another Type (but only on the principal amount so paid, prepaid, Continued or
Converted).  Interest payable pursuant to
Section 2.2.(a) at the Post-Default Rate shall be payable from time
to time on demand.  Promptly after the
determination of any interest rate provided for herein or any change therein,
the Agent shall give notice thereof to the Lenders to which such interest is
payable and to the Borrower.  All
determinations by the Agent of an interest rate hereunder shall be conclusive
and binding on the Lenders and the Borrower for all purposes, absent manifest
error.


 


Section 2.3.  Number of Interest Periods.


 


There
may be no more than 4 different Interest Periods for LIBOR Loans outstanding at
the same time.


 


Section 2.4.  Repayment of Loans.


 


The
Borrower shall repay the entire outstanding principal amount of, and all
accrued but unpaid interest on, the Term Loans on the Termination Date.


 


Section 2.5.  Prepayments.


 


Subject
to Section 4.4., the Borrower may prepay any Loan at any time without
premium or penalty.  The Borrower shall
give the Agent at least one Business Day’s prior written notice of the
prepayment of any Term Loan.


 


Section 2.6.  Continuation.


 


So
long as no Default or Event of Default shall exist, the Borrower may on any
Business Day, with respect to any LIBOR Loan, elect to maintain such LIBOR Loan
or any portion thereof as a LIBOR Loan by selecting a new Interest Period for
such LIBOR Loan.  Each new Interest
Period selected under this Section shall commence on the last day of the
immediately preceding Interest Period. 
Each selection of a new Interest Period shall be made by the Borrower
giving to the Agent a Notice of Continuation not later than 11:00 a.m. on
the third Business Day prior to the date of any such Continuation.  Such notice by the Borrower of a Continuation
shall be by telephone or telecopy, confirmed immediately in writing if by
telephone, in the form of a Notice of Continuation, specifying (a) the
proposed date of such Continuation, (b) the LIBOR Loans and portions
thereof subject to such Continuation and (c) the duration of the selected
Interest Period, all of which shall be specified in such manner as is necessary
to comply with all limitations on Loans outstanding hereunder.  Each Notice of Continuation shall be
irrevocable by and binding on the Borrower once given.  Promptly after receipt of a Notice of
Continuation, the Agent shall notify each Lender by telecopy, or other similar
form of transmission, of the proposed Continuation.  If the Borrower shall fail to select in a
timely manner a new Interest Period for any LIBOR Loan in accordance with this
Section, or if a Default or Event of Default shall exist, such Loan will
automatically, on the last day of the current Interest Period therefor, Convert
into a Base Rate Loan notwithstanding the first sentence of Section 2.7.
or the Borrower’s failure to comply with any of the terms of such Section.


 


25





















 


Section 2.7.  Conversion.


 


The Borrower may on any Business Day, upon the
Borrower’s giving of a Notice of Conversion to the Agent, Convert all or a
portion of a Loan of one Type into a Loan of another Type; provided, however, a
Base Rate Loan may not be Converted to a LIBOR Loan if a Default or Event of
Default shall exist.  Any Conversion of a
LIBOR Loan into a Base Rate Loan shall be made on, and only on, the last day of
an Interest Period for such LIBOR Loan and, upon Conversion of a Base Rate Loan
into a LIBOR Loan, the Borrower shall pay accrued interest to the date of
Conversion on the principal amount so Converted.  Each such Notice of Conversion shall be given
not later than 11:00 a.m. on the Business Day prior to the date of any
proposed Conversion into Base Rate Loans and on the third Business Day prior to
the date of any proposed Conversion into LIBOR Loans.  Promptly after receipt of a Notice of
Conversion, the Agent shall notify each Lender by telecopy, or other similar
form of transmission, of the proposed Conversion.  Subject to the restrictions specified above,
each Notice of Conversion shall be by telephone (confirmed immediately in
writing) or telecopy in the form of a Notice of Conversion specifying (a) the
requested date of such Conversion, (b) the Type of Loan to be Converted, (c) the
portion of such Type of Loan to be Converted, (d) the Type of Loan such
Loan is to be Converted into and (e) if such Conversion is into a LIBOR
Loan, the requested duration of the Interest Period of such Loan.  Each Notice of Conversion shall be irrevocable
by and binding on the Borrower once given.


 


Section 2.8.  Notes.


 


(a)           Notes.  The Term Loans made by each Lender shall, in
addition to this Agreement, also be evidenced by a promissory note of the
Borrower substantially in the form of Exhibit D (each a “Note”), payable
to the order of such Lender in a principal amount equal to the amount of its
Commitment.


 


(b)           Records.  The date, amount, interest rate, Type and
duration of Interest Periods (if applicable) of each Term Loan made by each
Lender to the Borrower, and each payment made on account of the principal
thereof, shall be recorded by such Lender on its books and such entries shall
be binding on the Borrower, absent manifest error; provided, however, that the
failure of a Lender to make any such record shall not affect the obligations of
the Borrower under any of the Loan Documents.


 


(c)           Lost, Stolen, Destroyed or
Mutilated Notes. Upon receipt by the Borrower of (i) written notice
from a Lender that the Note of such Lender has been lost, stolen, destroyed or
mutilated, and (ii) (A) in the case of loss, theft or destruction, an
unsecured agreement of indemnity from such Lender in form reasonably
satisfactory to the Borrower, or (B) in the case of mutilation, upon
surrender and cancellation of such Note, the Borrower shall at its own expense
execute and deliver to such Lender a new Note dated the date of such lost,
stolen, destroyed or mutilated Note.


 


Section 2.9.  Extension of Termination Date.


 


The
Borrower shall have the right, exercisable one time, to extend the Termination
Date to August 28, 2008 (the “Extension Option”).  The Borrower may only exercise the Extension


 


26





















 


Option by executing and delivering to the Agent at least 45 days but
not more than 90 days prior to the current Termination Date, a written request
for such extension (an “Extension Request”). 
The Agent shall forward to each Lender a copy of the Extension Request
delivered to the Agent promptly upon receipt thereof.  Subject to satisfaction of the following
conditions, the Termination Date shall be extended for two years effective upon
receipt of the Extension Request and payment of the fee referred to in the
following clause (b): (a) immediately prior to such extension and
immediately after giving effect thereto, (i) no Default or Event of
Default shall exist and (ii) the representations and warranties made or
deemed made by the Borrower and each other Loan Party in the Loan Documents to
which any of them is a party, shall be true and correct in all material
respects on and as of the date of such extension with the same force and effect
as if made on and as of such date except to the extent that such
representations and warranties expressly relate solely to an earlier date (in
which case such representations and warranties shall have been true and correct
on and as of such earlier date) and except for changes in factual circumstances
not prohibited under the Loan Documents, (b) the Borrower shall have paid
the Fees payable under Section 3.6. and (c) the Borrower shall have
complied with the requirements of Section 7.12.


 


ARTICLE III.
PAYMENTS, FEES AND OTHER GENERAL PROVISIONS


 


Section 3.1.  Payments.


 


Except
to the extent otherwise provided herein, all payments of principal, interest
and other amounts to be made by the Borrower under this Agreement or any other
Loan Document shall be made in Dollars, in immediately available funds, without
deduction, set-off or counterclaim, to the Agent at its Principal Office, not
later than 2:00 p.m. on the date on which such payment shall become due
(each such payment made after such time on such due date to be deemed to have
been made on the next succeeding Business Day). 
Subject to Section 10.4., the Borrower may, at the time of making
each payment under this Agreement or any Note, specify to the Agent the amounts
payable by the Borrower hereunder to which such payment is to be applied.  Each payment received by the Agent for the
account of a Lender under this Agreement or any Note shall be paid to such
Lender at the applicable Lending Office of such Lender no later than 5:00 p.m.
on the date of receipt.  If the Agent
fails to pay such amount to a Lender as provided in the previous sentence, the
Agent shall pay interest on such amount until paid at a rate per annum equal to
the Federal Funds Rate from time to time in effect.  If the due date of any payment under this
Agreement or any other Loan Document would otherwise fall on a day which is not
a Business Day such date shall be extended to the next succeeding Business Day
and interest shall be payable for the period of such extension.


 


Section 3.2.  Pro Rata Treatment.


 


Except
to the extent otherwise provided herein: (a) each borrowing from the
Lenders under Section 2.1. shall be made from the Lenders pro rata
according to the amounts of their respective Commitments; (b) each payment
or prepayment of principal of Term Loans by the Borrower shall be made for the
account of the Lenders pro rata in accordance with the respective unpaid
principal amounts of the Term Loans held by them; (c) each payment of
interest on Term Loans by the Borrower shall be made for the account of the
Lenders pro rata in accordance with the amounts of interest on such Loans then
due and payable to the respective Lenders; and


 


27





















 


(d) the Conversion and Continuation of Term Loans of a particular
Type (other than Conversions provided for by Section 4.6.) shall be made
pro rata among the Lenders according to the amounts of their respective Term
Loans and the then current Interest Period for each Lender’s portion of each
Term Loan of such Type shall be coterminous.


 


Section 3.3.  Sharing of Payments, Etc.


 


If a
Lender shall obtain payment of any principal of, or interest on, any Term Loan
made by it to the Borrower under this Agreement, or shall obtain payment on any
other Obligation owing by the Borrower or a Loan Party through the exercise of
any right of set-off, banker’s lien or counterclaim or similar right or
otherwise or through voluntary prepayments directly to a Lender or other
payments made by the Borrower to a Lender not in accordance with the terms of
this Agreement and such payment should be distributed to the Lenders pro rata
in accordance with Section 3.2. or Section 10.4., as applicable, such
Lender shall promptly purchase from the other Lenders participations in (or, if
and to the extent specified by such Lender, direct interests in) the Loans made
by the other Lenders or other Obligations owed to such other Lenders in such
amounts, and make such other adjustments from time to time as shall be
equitable, to the end that all the Lenders shall share the benefit of such
payment (net of any reasonable expenses which may be incurred by such Lender in
obtaining or preserving such benefit) pro rata in accordance with Section 3.2.
or Section 10.4., as applicable.  To
such end, all the Lenders shall make appropriate adjustments among themselves
(by the resale of participations sold or otherwise) if such payment is
rescinded or must otherwise be restored. 
The Borrower agrees that any Lender so purchasing a participation (or
direct interest) in the Loans or other Obligations owed to such other Lenders
may exercise all rights of set-off, banker’s lien, counterclaim or similar
rights with respect to such participation as fully as if such Lender were a
direct holder of Loans in the amount of such participation.  Nothing contained herein shall require any
Lender to exercise any such right or shall affect the right of any Lender to
exercise, and retain the benefits of exercising, any such right with respect to
any other indebtedness or obligation of the Borrower.


 


Section 3.4.  Several Obligations.


 


No
Lender shall be responsible for the failure of any other Lender to make a Term
Loan or to perform any other obligation to be made or performed by such other
Lender hereunder, and the failure of any Lender to make a Term Loan or to
perform any other obligation to be made or performed by it hereunder shall not
relieve the obligation of any other Lender to make a Term Loan or to perform
any other obligation to be made or performed by such other Lender.


 


Section 3.5.  Minimum Amounts.


 


(a)           Borrowings and Conversions.  Base Rate Loans shall be in an aggregate
minimum amount of $1,000,000 and integral multiples of $100,000 in excess
thereof.  LIBOR Loans, and Conversions
thereof, shall be in an aggregate minimum amount of $1,000,000 and integral
multiples of $100,000 in excess of that amount.


 


(b)           Prepayments.  Each voluntary prepayment of Term Loans shall
be in an aggregate minimum amount of $1,000,000 and integral multiples of
$100,000 in excess thereof (or, if less, the aggregate principal amount of Term
Loans then outstanding).


 


28





















 


Section 3.6.  Fees.


 


The
Borrower agrees to pay the administrative and other fees of the Agent as may be
agreed to in writing by the Borrower and the Agent from time to time.


 


Section 3.7.  Computations.


 


Unless
otherwise expressly set forth herein, any accrued interest on any Loan or any
other Obligations due hereunder shall be computed on the basis of a year of 365
or 366 days (as applicable) and the actual number of days elapsed; provided, however, any accrued interest
on any LIBOR Loan shall be computed on the basis of a year of 360 days and the
actual number of days elapsed.


 


Section 3.8.  Usury.


 


In no
event shall the amount of interest due or payable on the Loans or other
Obligations exceed the maximum rate of interest allowed by Applicable Law and, if
any such payment is paid by the Borrower or any other Loan Party or received by
any Lender, then such excess sum shall be credited as a payment of principal,
unless the Borrower shall notify the respective Lender in writing that the
Borrower elects to have such excess sum returned to it forthwith.  It is the express intent of the parties
hereto that the Borrower not pay and the Lenders not receive, directly or
indirectly, in any manner whatsoever, interest in excess of that which may be
lawfully paid by the Borrower under Applicable Law.


 


Section 3.9.  Agreement Regarding Interest and Charges.


 


The
parties hereto hereby agree and stipulate that the only charge imposed upon the
Borrower for the use of money in connection with this Agreement is and shall be
the interest specifically described in Sections 2.2.(a)(i) and
(ii).  Notwithstanding the foregoing, the
parties hereto further agree and stipulate that all agency fees, syndication
fees, facility fees, closing fees, extension fees, underwriting fees, default
charges, late charges, funding or “breakage” charges, increased cost charges,
attorneys’ fees and reimbursement for costs and expenses paid by the Agent or
any Lender to third parties or for damages incurred by the Agent or any Lender,
in each case in connection with the transactions contemplated by this Agreement
and the other Loan Documents, are charges made to compensate the Agent or any
such Lender for underwriting or administrative services and costs or losses
performed or incurred, and to be performed or incurred, by the Agent and the
Lenders in connection with this Agreement and shall under no circumstances be
deemed to be charges for the use of money. 
All charges other than charges for the use of money shall be fully
earned and nonrefundable when due.


 


Section 3.10.  Statements of Account.


 


The
Agent will account to the Borrower monthly with a statement of Loans, accrued
interest and Fees, charges and payments made pursuant to this Agreement and the
other Loan Documents, and such account rendered by the Agent shall be deemed
conclusive upon Borrower


 


29





















 


absent manifest
error.  The failure of the Agent to
deliver such a statement of accounts shall not relieve or discharge the
Borrower from any of its obligations hereunder.


 


Section 3.11.  Defaulting Lenders.


 


If for
any reason any Lender (a “Defaulting Lender”) shall fail or refuse to perform
any of its obligations under this Agreement or any other Loan Document to which
it is a party within the time period specified for performance of such
obligation or, if no time period is specified, if such failure or refusal
continues for a period of two Business Days after notice from the Agent, then,
in addition to the rights and remedies that may be available to the Agent or
the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s
right to participate in the administration of the Loans, this Agreement and the
other Loan Documents, including without limitation, any right to vote in respect
of, to consent to or to direct any action or inaction of the Agent or to be
taken into account in the calculation of the Requisite Lenders, shall be
suspended during the pendency of such failure or refusal.  If a Lender is a Defaulting Lender because it
has failed to make timely payment to the Agent of any amount required to be
paid to the Agent hereunder (without giving effect to any notice or cure
periods), in addition to other rights and remedies which the Agent or the
Borrower may have under the immediately preceding provisions or otherwise, the
Agent shall be entitled (i) to collect interest from such Defaulting
Lender on such delinquent payment for the period from the date on which the
payment was due until the date on which the payment is made at the Federal
Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the
defaulted payment and any related interest, any amounts otherwise payable to
such Defaulting Lender under this Agreement or any other Loan Document and (iii) to
bring an action or suit against such Defaulting Lender in a court of competent
jurisdiction to recover the defaulted amount and any related interest.  Any amounts received by the Agent in respect
of a Defaulting Lender’s Term Loans shall not be paid to such Defaulting Lender
and shall be held uninvested by the Agent and paid to such Defaulting Lender
upon such Defaulting Lender’s curing of its default.


 


Section 3.12.  Taxes.


 


(a)                                  Taxes
Generally.  All payments by the
Borrower of principal of, and interest on, the Loans and all other Obligations
shall be made free and clear of and without deduction for any present or future
excise, stamp or other taxes, fees, duties, levies, imposts, charges,
deductions, withholdings or other charges of any nature whatsoever imposed by
any taxing authority, but excluding (i) franchise taxes, (ii) any
taxes imposed on or measured by any Lender’s assets, net income, receipts or
branch profits, (iii) any taxes (other than withholding taxes) with
respect to the Agent or a Lender that would not be imposed but for a connection
between the Agent or such Lender and the jurisdiction imposing such taxes
(other than a connection arising solely by virtue of the activities of the
Agent or such Lender pursuant to or in respect of this Agreement or any other
Loan Document), and (iv) any taxes, fees, duties, levies, imposts,
charges, deductions, withholdings or other charges to the extent imposed as a
result of the failure of the Agent or a Lender, as applicable, to provide and
keep current (to the extent legally able) any certificates, documents or other
evidence required to qualify for an exemption from, or reduced rate of, any
such taxes, fees, duties, levies, imposts, charges, deductions, withholdings or
other charges or required by the immediately following subsection (c) to
be furnished by the Agent or such Lender, as applicable (such non-excluded
items being collectively called “Taxes”). 
If any


 


30





















 


withholding or deduction
from any payment to be made by the Borrower hereunder is required in respect of
any Taxes pursuant to any Applicable Law, then the Borrower will:


 


(i)                                     pay
directly to the relevant Governmental Authority the full amount required to be
so withheld or deducted;


 


(ii)                                  promptly
forward to the Agent an official receipt or other documentation satisfactory to
the Agent evidencing such payment to such Governmental Authority; and


 


(iii)                               pay to the Agent for its
account or the account of the applicable Lender, as the case may be, such additional
amount or amounts as is necessary to ensure that the net amount actually
received by the Agent or such Lender will equal the full amount that the Agent
or such Lender would have received had no such withholding or deduction been
required.


 


(b)                                 Tax
Indemnification.  If the Borrower
fails to pay any Taxes when due to the appropriate Governmental Authority or
fails to remit to the Agent, for its account or the account of the respective
Lender, as the case may be, the required receipts or other required documentary
evidence, the Borrower shall indemnify the Agent and the Lenders for any
incremental Taxes, interest or penalties that may become payable by the Agent
or any Lender as a result of any such failure. 
For purposes of this Section, a distribution hereunder by the Agent or
any Lender to or for the account of any Lender shall be deemed a payment by the
Borrower.


 


(c)                                  Tax
Forms.  Prior to the date that any
Foreign Lender becomes a party hereto, such Foreign Lender shall deliver to the
Borrower and the Agent such certificates, documents or other evidence, as
required by the Internal Revenue Code or Treasury Regulations issued pursuant
thereto (including Internal Revenue Service Forms W-8ECI and W-8BEN, as applicable, or appropriate successor forms),
properly completed, currently effective and duly executed by such Foreign
Lender establishing that payments to it hereunder and under the Notes are (i) not
subject to United States Federal backup withholding tax and (ii) not
subject to United States Federal withholding tax imposed under the Internal
Revenue Code.  Each such Foreign Lender
shall, to the extent it may lawfully do so, (x) deliver further copies of such
forms or other appropriate certifications on or before the date that any such
forms expire or become obsolete and after the occurrence of any event requiring
a change in the most recent form delivered to the Borrower or the Agent and (y)
obtain such extensions of the time for filing, and renew such forms and
certifications thereof, as may be reasonably requested by the Borrower or the
Agent.  The Borrower shall not be
required to pay any amount pursuant to the last sentence of subsection (a) above
to any Foreign Lender or the Agent, if it is organized under the laws of a
jurisdiction outside of the United States of America, if such Foreign Lender or
the Agent, as applicable, fails to comply with the requirements of this
subsection.  If any such Foreign Lender,
to the extent it may lawfully do so, fails to deliver the above forms or other
documentation, then the Agent may withhold from any payments to be made to such
Foreign Lender under any of the Loan Documents such amounts as are required by
the Internal Revenue Code. If any Governmental Authority asserts that the Agent
did not properly withhold or backup withhold, as the case may be, any tax or
other amount from payments made to or for the account of any Lender, such
Lender shall indemnify the Agent therefor, including all penalties and
interest, any


 


31





















 


taxes imposed by any
jurisdiction on the amounts payable to the Agent under this Section, and costs
and expenses (including all reasonable fees and disbursements of any law firm
or other external counsel and the allocated cost of internal legal services and
all disbursements of internal counsel) of the Agent.  The obligation of the Lenders under this Section shall
survive the repayment of all Obligations and the resignation or replacement of
the Agent.


 


ARTICLE IV.
YIELD PROTECTION, ETC.


 


Section 4.1.  Additional Costs; Capital Adequacy.


 


(a)                                  Additional
Costs.  The Borrower shall promptly
pay to the Agent for the account of each affected Lender from time to time such
amounts as such Lender may reasonably determine to be necessary to compensate
such Lender for any costs incurred by such Lender that it determines are
attributable to its making or maintaining of any LIBOR Loans or its obligation
to make any LIBOR Loans hereunder, any reduction in any amount receivable by
such Lender under this Agreement or any of the other Loan Documents in respect
of any of such Loans or such obligation or the maintenance by such Lender of
capital in respect of its Loans or its Commitment (such increases in costs and
reductions in amounts receivable being herein called “Additional Costs”), to
the extent resulting from any Regulatory Change that:  (i) changes the basis of taxation of any
amounts payable to such Lender under this Agreement or any of the other Loan
Documents in respect of any of such Loans or its Commitment (other than taxes,
fees, duties, levies, imposts, charges, deductions, withholdings or other
charges which are excluded from the definition of Taxes pursuant to the first
sentence of Section 3.12.(a)); or (ii) imposes or modifies any
reserve, special deposit or similar requirements (other than Regulation D of
the Board of Governors of the Federal Reserve System or other reserve
requirement to the extent utilized in the determination of Adjusted LIBOR for
such Loan) relating to any extensions of credit or other assets of, or any
deposits with or other liabilities of, such Lender, or any commitment of such
Lender (including, without limitation, the Commitment of such Lender
hereunder); or (iii) has or would have the effect of reducing the rate of
return on capital of such Lender to a level below that which such Lender could
have achieved but for such Regulatory Change (taking into consideration such
Lender’s policies with respect to capital adequacy).


 


(b)                                 Lender’s
Suspension of LIBOR Loans.  Without
limiting the effect of the provisions of the immediately preceding subsection (a),
if, by reason of any Regulatory Change, any Lender either (i) incurs
Additional Costs based on or measured by the excess above a specified level of
the amount of a category of deposits or other liabilities of such Lender that
includes deposits by reference to which the interest rate on LIBOR Loans is
determined as provided in this Agreement or a category of extensions of credit
or other assets of such Lender that includes LIBOR Loans or (ii) becomes
subject to restrictions on the amount of such a category of liabilities or
assets that it may hold, then, if such Lender so elects by notice to the
Borrower (with a copy to the Agent), the obligation of such Lender to make or
Continue, or to Convert any other Type of Loans into, LIBOR Loans hereunder
shall be suspended until such Regulatory Change ceases to be in effect (in
which case the provisions of Section 4.6. shall apply).


 


(c)                                  Notification
and Determination of Additional Costs. 
Each of the Agent and each Lender agrees to notify the Borrower of any
event occurring after the Agreement Date entitling


 


32





















 


the Agent or such Lender to compensation under any of the preceding
subsections of this Section as promptly as practicable; provided, however, the
failure of the Agent or any Lender to give such notice shall not release the
Borrower from any of its obligations hereunder (and in the case of a Lender, to
the Agent); provided further that no Lender shall be entitled to claim any
additional cost, reduction in amounts, loss, tax or other additional amount
under this Article IV. if such Lender fails to provide such notice to the
Borrower within 180 days of the date such Lender becomes aware of the occurrence
of the event giving rise to the additional cost, reduction in amounts, loss,
tax or other additional amount.  The
Agent or such Lender agrees to furnish to the Borrower (and in the case of a
Lender, to the Agent) a certificate setting forth in reasonable detail the
basis and amount of each request by the Agent or such Lender for compensation
under this Section.  Absent manifest
error, determinations by the Agent or any Lender of the effect of any
Regulatory Change shall be conclusive, provided that such determinations are
made on a reasonable basis and in good faith.


 


Section 4.2.  Suspension of LIBOR Loans.


 


Anything herein to the contrary notwithstanding, if,
on or prior to the determination of Adjusted LIBOR for any Interest Period:


 


(a)                                  the
Agent reasonably determines (which determination shall be conclusive) that by
reason of circumstances affecting the relevant market, adequate and reasonable
means do not exist for ascertaining Adjusted LIBOR for such Interest Period, or


 


(b)                                 the
Agent reasonably determines (which determination shall be conclusive) that
Adjusted LIBOR will not adequately and fairly reflect the cost to the Lenders
of making or maintaining LIBOR Loans for such Interest Period;


 


then the Agent shall give
the Borrower and each Lender prompt notice thereof and, so long as such
condition remains in effect, the Lenders shall be under no obligation to, and
shall not, make additional LIBOR Loans, Continue LIBOR Loans or Convert Loans
into LIBOR Loans and the Borrower shall, on the last day of each current
Interest Period for each outstanding LIBOR Loan, either repay such LIBOR Loan
or Convert such LIBOR Loan into a Base Rate Loan.


 


Section 4.3.  Illegality.


 


Notwithstanding
any other provision of this Agreement, if any Lender shall reasonably determine
(which determination shall be conclusive and binding) that it has become
unlawful for such Lender to honor its obligation to make or maintain LIBOR
Loans hereunder, then such Lender shall promptly notify the Borrower thereof
(with a copy to the Agent) and such Lender’s obligation to make or Continue, or
to Convert Loans of any other Type into, LIBOR Loans shall be suspended until
such time as such Lender may again make and maintain LIBOR Loans (in which case
the provisions of Section 4.6. shall be applicable).


 


33





















 


Section 4.4.  Compensation.


 


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


 


(a)                                  any
payment or prepayment (whether mandatory or optional) of a LIBOR Loan, or
Conversion of a LIBOR Loan, made by such Lender for any reason (including,
without limitation, acceleration) on a date other than the last day of the
Interest Period for such Loan; or


 


(b)                                 any
failure by the Borrower for any reason (including, without limitation, the
failure of any of the applicable conditions precedent specified in Article V.
to be satisfied) to borrow a LIBOR Loan from such Lender on the requested date
for such borrowing, or to Convert a Base Rate Loan into a LIBOR Loan or
Continue a LIBOR Loan on the requested date of such Conversion or Continuation.


 


Upon the Borrower’s request,  any
Lender  requesting compensation under
this Section shall provide the Borrower with a statement setting forth in
reasonable detail the basis for requesting such compensation and the method for
determining the amount thereof.  Absent
manifest error, determinations by any Lender in any such statement shall be
conclusive, provided that such determinations are made on a reasonable basis
and in good faith.


 


Section 4.5.  Affected Lenders.


 


If (a) a
Lender requests compensation pursuant to Section 3.12. or 4.1., and the
Requisite Lenders are not also doing the same, or (b) the obligation of
any Lender to make LIBOR Loans or to Continue, or to Convert Base Rate Loans
into, LIBOR Loans shall be suspended pursuant to Section 4.1.(b) or
4.3. but the obligation of the Requisite Lenders shall not have been suspended
under such Sections, or (c) a Lender does not vote in favor of any
amendment, modification or waiver to this Agreement which, pursuant to Section 12.6.
requires the vote of all of the Lenders, and the Requisite Lenders shall have
voted in favor of such amendment, modification or waiver, then, so long as
there does not then exist any Default or Event of Default, the Borrower may
demand that such Lender (the “Affected Lender”), and upon such demand the
Affected Lender shall promptly, assign its Commitment and Term Loans to an
Eligible Assignee subject to and in accordance with the provisions of Section 12.5.(d) for
a purchase price equal to the aggregate principal balance of all Loans then
owing to the Affected Lender plus any accrued but unpaid interest thereon and
accrued but unpaid fees owing to the Affected Lender, or any other amount as
may be mutually agreed upon by such Affected Lender and Eligible Assignee.  Each of the Agent and the Affected Lender
shall reasonably cooperate in effectuating the replacement of such Affected
Lender under this Section, but at no time shall the Agent, such Affected Lender
or any other Lender be obligated in any way whatsoever to initiate any such
replacement or to assist in finding an Eligible Assignee.  The exercise by the Borrower of its rights
under this Section shall be at the Borrower’s sole cost and expense and at
no cost or expense to the Agent, the Affected Lender or any of the other
Lenders.  The terms of this Section shall
not in any way limit the Borrower’s obligation to pay to any Affected Lender
compensation


 


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owing to such Affected
Lender pursuant to this Agreement (including, without limitation, Section 3.12.,
4.1., or 4.4.) with respect to periods up to the date of replacement.


 


Section 4.6.  Treatment of Affected Loans.


 


If the
obligation of any Lender to make LIBOR Loans or to Continue, or to Convert Base
Rate Loans into, LIBOR Loans shall be suspended pursuant to Section 4.1.(b) or
4.3., then such Lender’s LIBOR Loans shall be automatically Converted into Base
Rate Loans on the last day(s) of the then current Interest Period(s) for LIBOR
Loans (or, in the case of a Conversion required by Section 4.1.(b) or
4.3., on such earlier date as such Lender may specify to the Borrower with a
copy to the Agent) and, unless and until such Lender gives notice as provided below
that the circumstances specified in Section 4.1. or 4.3. that gave rise to
such Conversion no longer exist:


 


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


 


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


 


If such Lender gives
notice to the Borrower (with a copy to the Agent) that the circumstances
specified in Section 4.1. or 4.3. that gave rise to the Conversion of such
Lender’s LIBOR Loans pursuant to this Section no longer exist (which such
Lender agrees to do promptly upon such circumstances ceasing to exist) at a
time when LIBOR Loans made by other Lenders are outstanding, then such Lender’s
Base Rate Loans shall be automatically Converted, on the first day(s) of the
next succeeding Interest Period(s) for such outstanding LIBOR Loans, to the
extent necessary so that, after giving effect thereto, all Loans held by the
Lenders holding LIBOR Loans and by such Lender are held pro rata (as to
principal amounts, Types and Interest Periods) in accordance with their
respective Commitment Percentages.


 


Section 4.7.  Change of Lending Office.


 


Each
Lender agrees that it will use reasonable efforts to designate an alternate
Lending Office with respect to any of its Loans affected by the matters or
circumstances described in Section 3.12., 4.1. or 4.3. to reduce the
liability of the Borrower or avoid the results provided thereunder, so long as
such designation is not disadvantageous to such Lender as determined by such
Lender in its sole discretion, except that such Lender shall have no obligation
to designate a Lending Office located in the United States of America.


 


Section 4.8.  Assumptions Concerning Funding of LIBOR Loans.


 


Calculation
of all amounts payable to a Lender under this Article IV. shall be made as
though such Lender had actually funded 
LIBOR Loans through the purchase of deposits in the relevant market
bearing interest at the rate applicable to such LIBOR Loans in an amount equal
to the amount of the LIBOR Loans and having a maturity comparable to the
relevant Interest


 


35





















 


Period; provided,
however, that each Lender may fund each of its LIBOR Loans in any manner it
sees fit and the foregoing assumption shall be used only for calculation of
amounts payable under this Article IV.


 


ARTICLE V.
CONDITIONS PRECEDENT


 


Section 5.1.  Initial Conditions Precedent.


 


The
obligation of the Lenders to make the initial Term Loans is subject to the
following conditions precedent:


 


(a)                                  The
Agent shall have received each of the following, in form and substance
satisfactory to the Agent:


 


(i)                                     Counterparts
of this Agreement executed by each of the parties hereto;


 


(ii)                                  Notes
executed by the Borrower, payable to each Lender and complying with the
applicable provisions of Section 2.8.;


 


(iii)                               The Guaranty executed by
each of the Operating Partnerships;


 


(iv)                              An
opinion of counsel to the Loan Parties, addressed to the Agent, and the Lenders,
addressing the matters set forth in Exhibit E;


 


(v)                                 The
articles of incorporation, articles of organization, certificate of limited
partnership or other comparable organizational instrument (if any) of the
Borrower and each other Loan Party certified as of a recent date by the
Secretary of State of the state of formation of such Loan Party;


 


(vi)                              A
certificate of good standing or certificate of similar meaning with respect to
each Loan Party issued as of a recent date by the Secretary of State of the
state of formation of such Loan Party;


 


(vii)                           A certificate of incumbency
signed by the Secretary or Assistant Secretary (or other individual performing
similar functions) of each Loan Party with respect to each of the officers of
such Loan Party authorized to execute and deliver the Loan Documents to which
such Loan Party is a party, and, in the case of the Borrower, the officers of
the Borrower then authorized to deliver Notices of Borrowing, Notices of
Continuation and Notices of Conversion;


 


(viii)                        Copies certified by the Secretary or Assistant
Secretary (or other individual performing similar functions) of each Loan Party
of (i) the by-laws of such Loan Party, if a corporation, the operating
agreement of such Loan Party, if a limited liability company, the partnership
agreement of such Loan Party, if a limited or general partnership, or other
comparable document of such Loan Party in the case of any other form of legal
entity and (ii) all corporate, partnership, member or other necessary
action


 


36





















 


taken by such Loan Party to authorize the execution, delivery and
performance of the Loan Documents to which it is a party;


 


(ix)                                The
Fees then due and payable under Section 3.6., and any other Fees payable
to the Agent and the Lenders on or prior to the Effective Date;


 


(x)                                   A
Compliance Certificate calculated as of September 30, 2005 (giving pro
forma effect to the financing contemplated by this Agreement and the use of the
proceeds of the Loans to be funded on the Effective Date), and calculations
demonstrating that all Indebtedness proposed to be incurred by the Borrower on
the Effective Date is permitted under each of the Senior Note Indentures and
that no default under any of the Senior Note Indentures will exist as of such
date;


 


(xi)                                A
copy of each of the documents, instruments and agreements evidencing any of the
Indebtedness described on Schedule 6.1.(g), in each case certified as
true, correct and complete by the chief executive officer or chief financial
officer of the Borrower, but only if any such documents, instruments and
agreements are not otherwise publicly available;


 


(xii)                             A Notice of Borrowing for
the initial Term Loans; and


 


(xiii)                          Such other documents,
agreements and instruments as the Agent on behalf of the Lenders may reasonably
request; and


 


(b)                                 In
the good faith judgment of the Agent and the Lenders:


 


(i)                                     There
shall not have occurred or become known to the Agent or any of the Lenders any event, condition, situation or
status since the date of the information contained in the financial and
business projections, budgets and pro forma data concerning the Borrower and
its Subsidiaries delivered to the Agent and the Lenders prior to the Agreement
Date that has had or could reasonably be expected to result in a Material
Adverse Effect;


 


(ii)                                  No
litigation, action, suit, investigation or other arbitral, administrative or
judicial proceeding shall be pending or threatened which could reasonably be
expected to (1) result in a Material Adverse Effect or (2) restrain
or enjoin, impose materially burdensome conditions on, or otherwise materially
and adversely affect the ability of the Borrower or any other Loan Party to
fulfill its obligations under the Loan Documents to which it is a party;


 


(iii)                               The Borrower and its
Subsidiaries shall have received all approvals, consents and waivers, and shall
have made or given all necessary filings and notices, as shall be required to
consummate the transactions contemplated hereby without the occurrence of any
default under, conflict with or violation of (1) any Applicable Law or (2) any
agreement, document or instrument to which the Borrower or any other Loan Party
is a party or by which any of them or their respective properties is bound,
except for


 


37





















 


such
approvals, consents, waivers, filings and notices the receipt, making or giving
of which would not reasonably be likely to (A) have a Material
Adverse Effect, or (B) restrain or enjoin, impose materially burdensome
conditions on, or otherwise materially and adversely affect the ability of the
Borrower or any other Loan Party to fulfill its obligations under the Loan
Documents to which it is a party; and


 


(iv)                              There
shall not have occurred or exist any other material disruption of financial or
capital markets that could reasonably be expected to materially and adversely
affect the transactions contemplated by the Loan Documents.


 


Section 5.2.  Additional Conditions Precedent


 


The
obligation of the Lenders to make the Term Loans is subject to the further
condition precedent that: (a) no Default or Event of Default shall exist
as of the date of the making of the Term Loans or would exist immediately after
giving effect thereto; and (b) the representations and warranties made or
deemed made by the Borrower and each other Loan Party in the Loan Documents to
which any of them is a party, shall be true and correct in all material
respects on and as of the date of the making of such Loan with the same force
and effect as if made on and as of such date except to the extent that such
representations and warranties expressly relate solely to an earlier date (in
which case such representations and warranties shall have been true and correct
on and as of such earlier date) and except for changes in factual circumstances
not prohibited under the Loan Documents. 
Each Credit Event shall constitute a certification by the Borrower to
the effect set forth in clauses (a) and (b) of the preceding sentence
(both as of the date of the giving of notice relating to such Credit Event and,
unless the Borrower otherwise notifies the Agent prior to the date of such
Credit Event, as of the date of the occurrence of such Credit Event).  In addition, upon the making of the Term
Loans, the Borrower shall be deemed to have represented to the Agent and the
Lenders at the time such Term Loans are made that all conditions to the
occurrence of such Credit Event contained in this Article V. have been
satisfied.


 


ARTICLE VI.
REPRESENTATIONS AND WARRANTIES


 


Section 6.1.  Representations and Warranties.


 


In
order to induce the Agent and each Lender to enter into this Agreement and to
make the Term Loans, the Borrower represents and warrants to the Agent and each
Lender as follows:


 


(a)                                  Organization;
Power; Qualification.  Each of the
Borrower, its Subsidiaries and the other Loan Parties is a corporation,
partnership or other legal entity, duly organized or formed, validly existing
and in good standing under the jurisdiction of its incorporation or formation,
has the power and authority to own or lease its respective properties and to
carry on its respective business as now being and hereafter proposed to be
conducted and is duly qualified and is in good standing as a foreign
corporation, partnership or other legal entity, and authorized to do business,
in each jurisdiction in which the character of its properties or the nature of
its business requires such qualification or authorization and where the failure
to be so qualified or authorized could reasonably be expected to have, in each
instance, a Material Adverse Effect.


 


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(b)                                 Ownership
Structure.  As of the Agreement Date,
Part I of Schedule 6.1.(b) is a complete and correct list of all
Subsidiaries of the Borrower setting forth for each such Subsidiary, (i) the
jurisdiction of organization of such Subsidiary, (ii) each Person holding
any Equity Interests in such Subsidiary (but only a general reference to any
Person that is not an Affiliate of the Borrower), (iii) the nature of the
Equity Interests held by each such Person, (iv) the percentage of
ownership of such Subsidiary represented by such Equity Interests and (v) whether
such Subsidiary is a Material Subsidiary, a Significant Subsidiary and/or an
Excluded Subsidiary. Except as disclosed in such Schedule, as of the Agreement
Date (i) each of the Borrower and its Subsidiaries owns, free and clear of
all Liens (other than Permitted Liens), and has the unencumbered right to vote,
all outstanding Equity Interests in each Person shown to be held by it on such
Schedule, (ii) all of the issued and outstanding capital stock of each
such Person organized as a corporation is validly issued, fully paid and
nonassessable and (iii) there are no outstanding subscriptions, options,
warrants, commitments, preemptive rights or agreements of any kind (including,
without limitation, any stockholders’ or voting trust agreements) for the
issuance, sale, registration or voting of, or outstanding securities
convertible into, any additional shares of capital stock of any class, or
partnership or other ownership interests of any type in, any such Person.  As of the Agreement Date, Part II of Schedule 6.1.(b) correctly
sets forth all Unconsolidated Affiliates of the Borrower, including the correct
legal name of such Person, the type of legal entity which each such Person is,
and all Equity Interests in such Person held directly or indirectly by the
Borrower.


 


(c)                                  Authorization
of Agreement, Etc.  The Borrower has
the right and power, and has taken all necessary action to authorize it, to
borrow and obtain other extensions of credit hereunder.  The Borrower and each other Loan Party has
the right and power, and has taken all necessary action to authorize it, to
execute, deliver and perform each of the Loan Documents to which it is a party
in accordance with their respective terms and to consummate the transactions
contemplated hereby and thereby.  The
Loan Documents to which the Borrower or any other Loan Party is a party have
been duly executed and delivered by the duly authorized officers of such Person
and each is a legal, valid and binding obligation of such Person enforceable
against such Person in accordance with its respective terms except as the same
may be limited by bankruptcy, insolvency, and other similar laws affecting the
rights of creditors generally and the availability of equitable remedies for
the enforcement of certain obligations (other than the payment of principal)
contained herein or therein and as may be limited by equitable principles
generally.


 


(d)                                 Compliance
of Loan Documents with Laws, Etc. 
The execution, delivery and performance of this Agreement, the Notes and
the other Loan Documents to which the Borrower or any other Loan Party is a
party in accordance with their respective terms and the borrowings and other
extensions of credit hereunder do not and will not, by the passage of time, the
giving of notice, or both:  (i) require
any Governmental Approval or violate any Applicable Law (including all
Environmental Laws) relating to the Borrower or any other Loan Party; (ii) conflict
with, result in a breach of or constitute a default under the organizational
documents of the Borrower or any other Loan Party, or any material indenture,
agreement or other instrument to which the Borrower or any other Loan Party is
a party or by which it or any of its respective properties may be bound
(including, without limitation, each of the Senior Note Indentures and each of
the documents, instruments and agreements evidencing any of the Indebtedness


 


39





















 


described on Schedule 6.1.(g));
or (iii) result in or require the creation or imposition of any Lien upon
or with respect to any property now owned or hereafter acquired by the Borrower
or any other Loan Party.


 


(e)                                  Compliance
with Law; Governmental Approvals. 
Each of the Borrower, each Subsidiary and each other Loan Party is in
compliance with each Governmental Approval applicable to it and in compliance
with all other Applicable Laws (including without limitation, Environmental
Laws) relating to the Borrower, a Subsidiary or such other Loan Party, except
for noncompliances which, and Governmental Approvals the failure to possess
which, could not, individually or in the aggregate, reasonably be expected to
cause a Default or Event of Default or have a Material Adverse Effect.


 


(f)                                    Title
to Properties; Liens.  As of the
Agreement Date, Part I of Schedule 6.1.(f) is a complete and
correct listing of all of the real property owned or leased by the Borrower,
each other Loan Party and each other Subsidiary.  Each such Person has good, marketable and
legal title to, or a valid leasehold interest in, its respective assets.  As of the Agreement Date, there are no Liens
against any assets of the Borrower, any Subsidiary or any other Loan Party
except for Permitted Liens.


 


(g)                                 Existing
Indebtedness.  Schedule 6.1.(g) is,
as of the Agreement Date, a complete and correct listing of all Indebtedness of
the Borrower and its Subsidiaries, including without limitation, Guarantees of
the Borrower and its Subsidiaries, and indicating whether such Indebtedness is
Combined Secured Indebtedness or Combined Unsecured Indebtedness.


 


(h)                                 Litigation.  Except as set forth on Schedule 6.1.(h),
there are no actions, suits, investigations or proceedings pending (nor, to the
knowledge of the Borrower, are there any actions, suits or proceedings
threatened) against or in any other way relating adversely to or affecting the
Borrower, any Subsidiary or any other Loan Party or any of its respective
property in any court or before any arbitrator of any kind or before or by any
other Governmental Authority which could reasonably be expected to have a
Material Adverse Effect.  There are no strikes,
slow downs, work stoppages or walkouts or other labor disputes in progress
or threatened relating to the Borrower, any Subsidiary or any other Loan Party
which could reasonably be expected to have a Material Adverse Effect.


 


(i)                                     Taxes.  All federal, state and other tax returns of
the Borrower, any Subsidiary or any other Loan Party required by Applicable Law
to be filed have been duly filed, and all federal, state and other taxes,
assessments and other governmental charges or levies upon the Borrower, any
Subsidiary and each other Loan Party and its respective properties, income,
profits and assets which are due and payable have been paid, except any such
nonpayment which is at the time permitted under Section 7.6.  As of the Agreement Date, none of the
Borrower, its Subsidiaries or any other Loan Party has received notice that any
of its United States income tax returns are under audit.  All charges, accruals and reserves on the
books of the Borrower and each of its Subsidiaries and each other Loan Party in
respect of any taxes or other governmental charges are in accordance with GAAP.


 


40





















 


(j)                                     Financial
Statements. The Borrower has furnished
to each Lender copies of (i) the audited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries for the fiscal year ended December 31,
2004, and the related audited consolidated statements of operations, cash flows
and shareholders’ equity for the fiscal year ended on such date (all as
restated as of November 8, 2005), with the opinion thereon of KPMG LLP and
(ii) the unaudited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries for the fiscal quarter ending September 30,
2005, and the related unaudited consolidated statements of income and cash flow
of the Borrower and its consolidated Subsidiaries for the three fiscal quarter
period ending on such date (all as restated as of November 8, 2005).  Such financial statements (including in each
case related schedules and notes) present fairly, in all material respects and
in accordance with GAAP consistently applied throughout the period involved,
the consolidated financial position of the Borrower and its consolidated
Subsidiaries as at such date and the results of operations and the cash flow
for such period (subject to normal year-end audit adjustments).


 


(k)                                  No
Material Adverse Change.  Since December 31,
2004, there has been no material adverse change in the business, assets,
liabilities, financial condition, results of operations or business of the
Borrower and its Subsidiaries taken as a whole. 
Each of the Borrower, its Subsidiaries and the other Loan Parties is
Solvent.


 


(l)                                     ERISA.  Each member of the ERISA Group is in
compliance with its obligations under the minimum funding standards of ERISA
and the Internal Revenue Code with respect to each Plan and is in compliance
with the presently applicable provisions of ERISA and the Internal Revenue Code
with respect to each Plan, except in each case for noncompliances which could
not reasonably be expected to have a Material Adverse Effect.  As of the Agreement Date, no member of the
ERISA Group has (i) sought a waiver of the minimum funding standard under Section 412
of the Internal Revenue Code in respect of any Plan, (ii) failed to make
any contribution or payment to any Plan or Multiemployer Plan or in respect of
any Benefit Arrangement, or made any amendment to any Plan or Benefit
Arrangement, which has resulted or could result in the imposition of a Lien or
the posting of a bond or other security under ERISA or the Internal Revenue
Code or (iii) incurred any liability under Title IV of ERISA other than a
liability to the PBGC for premiums under Section 4007 of ERISA.


 


(m)                               Not
Plan Assets; No Prohibited Transaction. 
None of the assets of the Borrower, any Subsidiary or any other Loan
Party constitute “plan assets” within the meaning of ERISA, the Internal
Revenue Code and the respective regulations promulgated thereunder.  The execution, delivery and performance of
this Agreement and the other Loan Documents, and the borrowing and other credit
extensions and repayment of amounts hereunder, do not and will not constitute “prohibited
transactions” under ERISA or the Internal Revenue Code.


 


(n)                                 Absence
of Defaults.  Neither the Borrower,
any Subsidiary nor any other Loan Party is in default under its articles of
incorporation, bylaws, partnership agreement or other similar organizational
documents, and no event has occurred, which has not been remedied, cured or
waived, which, in any such case:  (i) constitutes
a Default or an Event of Default; or (ii) constitutes, or which with the
passage of time, the giving of notice, or both, would constitute, a default or
event of default by the Borrower, any Subsidiary or any other Loan Party under
any


 


41





















 


agreement (other than
this Agreement) or judgment, decree or order to which the Borrower or any
Subsidiary or other Loan Party is a party or by which the Borrower or any
Subsidiary or other Loan Party or any of their respective properties may be
bound where such default or event of default could, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.


 


(o)                                 Environmental
Laws.  Each of the Borrower, its
Subsidiaries and the other Loan Parties has obtained all Governmental Approvals
which are required under Environmental Laws and is in compliance with all terms
and conditions of such Governmental Approvals which the failure to obtain or to
comply with could reasonably be expected to have a Material Adverse
Effect.  Except for any of the following
matters that could not be reasonably expected to have a Material Adverse
Effect, (i) the Borrower is not aware of, and has not received notice of,
any past, present, or future events, conditions, circumstances, activities,
practices, incidents, actions, or plans which, with respect to the Borrower,
its Subsidiaries and each other Loan Party, may interfere with or prevent
compliance or continued compliance with Environmental Laws, or may give rise to
any common-law or legal liability, or otherwise form the basis of any claim,
action, demand, suit, proceeding, hearing, study, or investigation, based on or
related to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling or the emission, discharge, release or
threatened release into the environment, of any Hazardous Material; and (ii) there
is no civil, criminal, or administrative action, suit, demand, claim, hearing,
notice, or demand letter, notice of violation, investigation, or proceeding
pending or, to the Borrower’s knowledge after due inquiry, threatened, against
the Borrower, any of its Subsidiaries or any other Loan Party relating in any
way to Environmental Laws.


 


(p)                                 Investment
Company; Public Utility Holding Company. 
Neither the Borrower nor any Subsidiary nor any other Loan Party is (i) an
“investment company” or a company “controlled” by an “investment company”
within the meaning of the Investment Company Act of 1940, as amended, (ii) a
“holding company” or a “subsidiary company” of a “holding company”, or an “affiliate”
of a “holding company” or of a “subsidiary company” of a “holding company”,
within the meaning of the Public Utility Holding Company Act of 1935, as
amended, or (iii) subject to any other Applicable Law which purports to
regulate or restrict its ability to borrow money or to consummate the
transactions contemplated by this Agreement or to perform its obligations under
any Loan Document to which it is a party.


 


(q)                                 Margin
Stock.  Neither the Borrower, any
Subsidiary nor any other Loan Party is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose,
whether immediate, incidental or ultimate, of buying or carrying “margin stock”
within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System.


 


(r)                                    Intellectual
Property.  Each of the Borrower, each
other Loan Party and each other Subsidiary owns or has the right to use, under
valid license agreements or otherwise, all material patents, licenses,
franchises, trademarks, trademark rights, service marks, service mark rights,
trade names, trade name rights, trade secrets and copyrights (collectively, “Intellectual
Property”) necessary to the conduct of its businesses as now conducted and as
contemplated by the Loan Documents, without known conflict with any patent,
license, franchise, trademark, trademark right, service mark, service mark
right, trade secret, trade name, copyright, or other


 


42





















 


proprietary right of any
other Person.  The Borrower, each other
Loan Party and each other Subsidiary have taken all such steps as they deem
reasonably necessary to protect their respective rights under and with respect
to such Intellectual Property.  No
material claim has been asserted by any Person with respect to the use of any
such Intellectual Property by the Borrower, any other Loan Party or any other
Subsidiary, or challenging or questioning the validity or effectiveness of any such
Intellectual Property.  The use of such
Intellectual Property by the Borrower, its Subsidiaries and the other Loan
Parties, does not infringe on the rights of any Person, subject to such claims
and infringements as do not, in the aggregate, give rise to any liabilities on
the part of the Borrower, any other Loan Party or any other Subsidiary that
could reasonably be expected to have a Material Adverse Effect.


 


(s)                                  Business.  As of the Agreement Date, the Borrower and
its Subsidiaries are engaged in the business of acquiring, developing, owning
and managing neighborhood and community shopping centers, together with other
business activities incidental thereto.


 


(t)                                    Broker’s
Fees.  No broker’s or finder’s fee,
commission or similar compensation will be payable with respect to the
transactions contemplated hereby.  No
other similar fees or commissions will be payable by any Loan Party for any
other services rendered to the Borrower or any of its Subsidiaries ancillary to
the transactions contemplated hereby.


 


(u)                                 Accuracy
and Completeness of Information.  No
written information, report or other papers or data (excluding financial
projections and other forward looking statements and any financial statements
which have been restated) furnished to the Agent or any Lender by, on behalf
of, or at the direction of, the Borrower, any Subsidiary or any other Loan
Party in connection with, pursuant to or relating in any way to this Agreement,
contained any untrue statement of a fact material to the creditworthiness of
the Borrower, any Subsidiary or any other Loan Party or omitted to state a
material fact necessary in order to make such statements contained therein, in
light of the circumstances under which they were made, not misleading.  All financial statements (including in each
case all related schedules and notes but excluding any financial statement
which has been restated) furnished to the Agent or any Lender by, on behalf of,
or at the direction of, the Borrower, any Subsidiary or any other Loan Party in
connection with, pursuant to or relating in any way to this Agreement, present
fairly, in all material respects and in accordance with GAAP consistently
applied throughout the periods involved, the financial position of the Persons
involved as at the date thereof and the results of operations for such periods
(subject, as to interim statements, to changes resulting from normal year-end
audit adjustments).  All financial
projections and other forward looking statements prepared by or on behalf of
the Borrower, any Subsidiary or any other Loan Party that have been or may
hereafter be made available to the Agent or any Lender were or will be prepared
in good faith based on reasonable assumptions but with it being understood that
such projections and statements are not a guarantee of future performance.  As of the Effective Date, no fact is known to
the Borrower which has had, or may in the future have (so far as the Borrower
can reasonably foresee), a Material Adverse Effect which has not been set forth
in the financial statements referred to in Section 6.1.(j) or in such
information, reports or other papers or data or otherwise disclosed in writing
to the Agent and the Lenders.


 


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(v)                                 REIT
Status.  The Borrower qualifies as a
REIT and is in compliance with all requirements and conditions imposed under
the Internal Revenue Code sufficient to allow the Borrower to maintain its
status as a REIT.


 


(w)                               Eligible
Properties.  As of the Agreement
Date, Schedule 6.1.(w) is a correct and complete list of all Eligible
Properties.


 


(x)                                   Foreign
Assets Control.  None of the
Borrower, any Subsidiary or any Affiliate of the Borrower: (i) is a
Sanctioned Person, (ii) has more than 10% of its assets in Sanctioned
Entities, or (iii) derives more than 10% of its operating income from
investments in, or transactions with, Sanctioned Persons or Sanctioned
Entities.


 


Section 6.2.  Survival of Representations and Warranties,
Etc.


 


All
statements contained in any certificate, financial statement or other
instrument delivered by or on behalf of the Borrower, any Subsidiary or any
other Loan Party to the Agent or any Lender pursuant to or in connection with
this Agreement or any of the other Loan Documents (including, but not limited
to, any such statement made in or in connection with any amendment hereto or
thereto or any statement contained in any certificate, financial statement or
other instrument delivered by or on behalf of the Borrower prior to the
Agreement Date and delivered to the Agent or any Lender in connection with the
underwriting or closing of the transactions contemplated hereby) shall
constitute representations and warranties made by the Borrower in favor of the
Agent or any of the Lenders under this Agreement.  All representations and warranties made under
this Agreement and the other Loan Documents shall be deemed to be made at and
as of the Agreement Date, the Effective Date, the date on which an extension of
the Termination Date is effectuated pursuant to Section 2.9. and the date
of the occurrence of any Credit Event, except to the extent that such
representations and warranties expressly relate solely to an earlier date (in
which case such representations and warranties shall have been true and correct
in all material respects on and as of such earlier date) and except for changes
in factual circumstances not prohibited under the Loan Documents.  All such representations and warranties shall
survive the effectiveness of this Agreement, the execution and delivery of the
Loan Documents and the making of the Loans.


 


ARTICLE VII.
AFFIRMATIVE COVENANTS


 


For so
long as this Agreement is in effect, unless the Requisite Lenders (or, if
required pursuant to Section 12.6., all of the Lenders) shall otherwise
consent in the manner provided for in Section 12.6., the Borrower shall
comply with the following covenants:


 


Section 7.1.  Preservation of Existence and Similar
Matters.


 


Except
as otherwise permitted under Section 9.5., the Borrower shall, and shall
cause each Subsidiary and each other Loan Party to, preserve and maintain its
respective existence, rights, franchises, licenses and privileges in the
jurisdiction of its incorporation or formation and qualify and remain qualified
and authorized to do business in each jurisdiction in which the character of
its properties or the nature of its business requires such qualification and


 


44





















 


authorization and where
the failure to maintain such existence or to be so authorized and qualified
could reasonably be expected to have a Material Adverse Effect.


 


Section 7.2.  Compliance with Applicable Law.


 


The
Borrower shall, and shall cause each Subsidiary and each other Loan Party to,
comply with all Applicable Laws, including the obtaining of all Governmental
Approvals, the failure with which to comply could reasonably be expected to
have a Material Adverse Effect.


 


Section 7.3.  Maintenance of Property.


 


In
addition to the requirements of any of the other Loan Documents, the Borrower
shall, and shall cause each Subsidiary and other Loan Party to, except where
the failure to do so could not reasonably be expected to have a Material
Adverse Effect, (a) protect and preserve all of its respective properties,
including, but not limited to, all Intellectual Property, and maintain in good
repair, working order and condition all tangible properties, ordinary wear and
tear excepted, and (b)  make or cause to be made all needed and
appropriate repairs, renewals, replacements and additions to such properties,
so that the business carried on in connection therewith may be properly and
advantageously conducted at all times.


 


Section 7.4.  Conduct of Business.


 


The
Borrower shall, and shall cause its Subsidiaries and the other Loan Parties to,
carry on their respective businesses as described in Section 6.1.(s).


 


Section 7.5.  Insurance.


 


In
addition to the requirements of any of the other Loan Documents, the Borrower
shall, and shall cause each Subsidiary and other Loan Party to, maintain
insurance (on a replacement cost basis) with financially sound and reputable
insurance companies against such risks and in such amounts as is customarily
maintained by Persons engaged in similar businesses or as may be required by
Applicable Law, and from time to time deliver to the Agent upon its request a
detailed list, together with copies of all policies of the insurance then in
effect, stating the names of the insurance companies, the amounts and rates of
the insurance, the dates of the expiration thereof and the properties and risks
covered thereby.


 


Section 7.6.  Payment of Taxes and Claims.


 


The
Borrower shall, and shall cause each Subsidiary and other Loan Party to, pay
and discharge when due (a) all taxes, assessments and governmental charges
or levies imposed upon it or upon its income or profits or upon any properties
belonging to it, and (b) all lawful claims of materialmen, mechanics,
carriers, warehousemen and landlords for labor, materials, supplies and rentals
which, if unpaid, might become a Lien on any properties of such Person;
provided, however, that this Section shall not require the payment or
discharge of any such tax, assessment, charge, levy or claim which is being
contested in good faith by appropriate proceedings which operate to suspend the
collection thereof and for which adequate reserves have been established


 


45





















 


on the books of the
Borrower, such Subsidiary or such other Loan Party, as applicable, in
accordance with GAAP.


 


Section 7.7.  Visits and Inspections.


 


The
Borrower shall, and shall cause each Subsidiary and other Loan Party to, permit
representatives or agents of any Lender or the Agent, from time to time after
reasonable prior notice if no Event of Default shall be in existence, as often
as may be reasonably requested, but only during normal business hours and at
the expense of such Lender or the Agent (provided that the exercise by the
Agent of its rights under this Section shall be at the expense of the
Borrower two times in any given fiscal year unless a Default or Event of
Default shall exist, in which case the exercise by the Agent or such Lender of
its rights under this Section shall be at the expense of the Borrower), as
the case may be, to: (a) visit and inspect all properties of the Borrower
or such Subsidiary or other Loan Party to the extent any such right to visit or
inspect is within the control of such Person; (b) inspect and make
extracts from their respective books and records, including but not limited to
management letters prepared by independent accountants; and (c) discuss
with its officers and employees, and its independent accountants (where
accompanied by the Borrower unless a Default or Event of Default shall exist),
its business, properties, condition (financial or otherwise), results of
operations and performance.  If requested
by the Agent, the Borrower shall execute an authorization letter addressed to
its accountants authorizing the Agent or any Lender to discuss the financial
affairs of the Borrower and any Subsidiary or any other Loan Party with its
accountants.


 


Section 7.8.  Use of Proceeds.


 


The
Borrower shall use the proceeds of the Term Loans to pay fees, costs and
expenses in respect of the transactions under this Agreement, to refinance
existing Indebtedness, and thereafter for general corporate purposes only
(including, without limitation, the acquisition and redevelopment of real
estate properties).  No part of the
proceeds of any Loan will be used (a) for the purpose of buying or
carrying “margin stock” within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System or to extend credit to others for the
purpose of purchasing or carrying any such margin stock if, in any such case,
such use might result in any of the Loans being considered to be “purpose
credit” directly or indirectly secured by margin stock within the meaning of
Regulation U or Regulation X of the Board of Governors of the Federal Reserve
System, (b) to finance any operations, investments or activities in, or
make any payments to, any country, agency, organization, or Person described in
clause (ii) of Section 6.1.(x) or (c) to fund any
operations in, finance any investments or activities in, or make any payments
to, a Sanctioned Person or Sanctioned Entity.


 


Section 7.9.  Environmental Matters.


 


The
Borrower shall, and shall cause all of its Subsidiaries and the other Loan
Parties to, comply with all Environmental Laws the failure with which to comply
could reasonably be expected to have a Material Adverse Effect.  If the Borrower, any Subsidiary or any other
Loan Party shall (a) receive notice that any violation of any
Environmental Law may have been committed or is about to be committed by such
Person, (b) receive notice that any administrative or judicial complaint
or order has been filed or is about to be filed against the Borrower, any


 


46





















 


Subsidiary or any other
Loan Party alleging violations of any Environmental Law or requiring the
Borrower, any Subsidiary or any other Loan Party to take any action in
connection with the release of Hazardous Materials or (c) receive any
notice from a Governmental Authority or private party alleging that the
Borrower, any Subsidiary or any other Loan Party may be liable or responsible
for costs associated with a response to or cleanup of a release of Hazardous
Materials or any damages caused thereby, and the matters referred to in such
notices, individually or in the aggregate, could reasonably be expected to have
a Material Adverse Effect, the Borrower shall provide the Agent with a copy of
such notice promptly, and in any event within 10 Business Days, after the
receipt thereof by the Borrower, any Subsidiary or any other Loan Party.  The Borrower shall, and shall cause its
Subsidiaries and the other Loan Parties to, take promptly all actions necessary
to prevent the imposition of any Liens that could reasonably be expected to
have a Material Adverse Effect on any of their respective properties arising
out of or related to any Environmental Laws.


 


Section 7.10.  Books and Records.


 


The
Borrower shall, and shall cause each of its Subsidiaries and the other Loan
Parties to, maintain books and records pertaining to its respective business
operations in such detail, form and scope as is consistent with good business
practice and in accordance with GAAP.


 


Section 7.11.  Further Assurances.


 


The
Borrower shall, at the Borrower’s cost and expense and upon request of the
Agent, execute and deliver or cause to be executed and delivered, to the Agent
such further instruments, documents and certificates, and do and cause to be
done such further acts that may be reasonably necessary or advisable in the
reasonable opinion of the Agent to carry out more effectively the provisions
and purposes of this Agreement and the other Loan Documents.


 


Section 7.12.  New Subsidiaries/Guarantors.


 


(a)                                  Requirement
to Become Guarantor.  At all times on
and after the Termination Date has been extended pursuant to Section 2.9.,
the Borrower shall cause each Subsidiary that is not already a Guarantor and to
which any of the following conditions apply to become a Guarantor by executing
and delivering to the Agent the items required to be delivered under subsection (c) below:


 


(i)                                     a
Person (other than an Excluded Subsidiary) is or has become a Material
Subsidiary;


 


(ii)                                  a
Subsidiary is or has become obligated in respect of any Indebtedness other than
Nonrecourse Indebtedness, including without limitation, Indebtedness incurred
by Guarantying obligations in respect of the Revolving Credit Agreement; or


 


(iii)                               an Excluded Subsidiary
has ceased to be subject to the restriction which prevented it from delivering
an Accession Agreement pursuant to this Section.


 


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(b)                                 Release
of a Guarantor.  The Borrower may
request in writing that the Agent release, and upon receipt of such request the
Agent shall release, a Guarantor from the Guaranty so long as: (i) such
Guarantor (x) qualifies, or will qualify simultaneously with its release from
the Guaranty, as an Excluded Subsidiary, (y) in the case of a Material
Subsidiary, has ceased to be, or simultaneously with its release from the
Guaranty will cease to be, a Material Subsidiary or (z) in the case of a
Subsidiary obligated in respect of any Indebtedness other than Nonrecourse
Indebtedness, such Subsidiary has ceased to be, or simultaneously with its
release from the Guaranty will cease to be, obligated in respect of such
Indebtedness; (ii) such Guarantor is not otherwise required to be a party to the
Guaranty under the immediately preceding subsection (a); (iii) no Default or
Event of Default shall then be in existence or would occur as a result of such
release, including without limitation, a Default or Event of Default resulting
from a violation of any of the covenants contained in Section 9.1.; and (iv)
the Agent shall have received such written request at least 10 Business Days
prior to the requested date of release. 
Delivery by the Borrower to the Agent of any such request shall
constitute a representation by the Borrower that the matters set forth in the
preceding sentence (both as of the date of the giving of such request and as of
the date of the effectiveness of such request) are true and correct with
respect to such request.


 


 


(c)                                  Items
Required to be Delivered.  In
connection with any Subsidiary becoming a Guarantor as provided in the
immediately preceding subsection (a), the Borrower shall deliver to the
Agent each of the following items, each in form and substance satisfactory to
the Agent: (i) an Accession Agreement executed by such Subsidiary and (ii) the
items that would have been delivered under Sections 5.1.(a)(iv) through
(viii) and (xiii) if such Subsidiary had been a Loan Party on the
Effective Date.  Such items shall be
delivered to the Agent within 10 days of the date a Person is required to
become a Guarantor under the immediately preceding subsection (a) (or
in the case of the extension of the Termination Date pursuant to Section 2.9.,
not later than the effective date of such extension).  The Borrower shall send to each Lender copies
of each of the foregoing items once the Agent has received all such items with
respect to a Subsidiary.


 


Section 7.13.  REIT Status.


 


The
Borrower shall at all times maintain its status as a REIT.


 


Section 7.14.  Exchange Listing.


 


The Borrower shall maintain at least one class of
common shares of the Borrower having trading privileges on the New York Stock
Exchange or the American Stock Exchange or which is the subject of price
quotations in the over-the-counter market as reported by the National
Association of Securities Dealers Automated Quotation System.


 


Section 7.15.  Amendment to Revolving Credit Agreement.


 


If at any time on or after the Agreement Date
the Borrower or any other Loan Party enters into, assumes or otherwise becomes
bound or obligated under, or agrees to any new agreement with the “Lenders”
under the Revolving Credit Agreement (including any refinancings, renewals,
replacements or extensions thereof) or any amendment, modification or
supplement of any agreement which relates to the Revolving Credit Agreement
(including any


 


48





















 


refinancings, renewals,
replacements or extensions thereof) or the documents executed in connection
with the Revolving Credit Agreement (collectively, the “Revolving Loan
Documents”) in any manner the effect of which would be (a) to create,
amend or add covenants or obligations of the Borrower and/or the Loan Parties
under the Revolving Loan Documents which are in addition to those contained in
the Loan Documents or (b) more restrictive on the Borrower or any Loan
Party under the Revolving Loan Documents than are the covenants contained in
the Loan Documents, then this Agreement and the other Loan Documents shall, without
any further action on the part of the Borrower, any Loan Party, the Agent or
any Lender, be deemed to be amended automatically to include each such
additional covenant or provision; provided,
that the Agent, the Requisite Lenders and the Borrower may agree in writing not
to so amend this Agreement.  The Borrower
further covenants to promptly, and in any event within 30 days, execute and
deliver, and cause each other appropriate Loan Party, at the Borrower’s expense
(including, without limitation, the fees and expenses of counsel for the Agent)
a document which amends this Agreement and any other applicable Loan Document
in form and substance satisfactory to the Agent to reflect any amendment,
modification or supplement of any covenants or provision in this Agreement
pursuant to this Section, provided, that the execution and delivery of such
document shall not be a precondition to the effectiveness of such amendment,
modification or supplement.  The
provisions of this Section shall apply successively to each amendment,
modification or supplement so that the Lenders shall have the benefit of every
such amendment, modification or supplement.


 


ARTICLE VIII.
INFORMATION


 


For so
long as this Agreement is in effect, unless the Requisite Lenders (or, if
required pursuant to Section 12.6., all of the Lenders) shall otherwise
consent in the manner set forth in Section 12.6., the Borrower shall
furnish to each Lender (or to the Agent if so provided below) at its Lending
Office:


 


Section 8.1.  Quarterly Financial Statements.


 


As soon as available and in any event within 5 days
after the same is filed with the Securities and Exchange Commission (but in no
event later than 45 days after the end of each of the first, second and third
fiscal quarters of the Borrower), the unaudited consolidated balance sheet of
the Borrower and its Subsidiaries as at the end of such period and the related
unaudited consolidated statements of income, shareholders’ equity and cash
flows of the Borrower and its Subsidiaries for such period, setting forth in
each case in comparative form the figures as of the end of and for the
corresponding periods of the previous fiscal year, all of which shall be
certified by the chief executive officer, chief financial officer, or other
financial officer of the Borrower who is a vice president or more senior
officer, in his or her opinion, to present fairly, in accordance with GAAP
consistently applied, and in all material respects, the consolidated financial
position of the Borrower and its Subsidiaries as at the date thereof and the
results of operations for such period (subject to normal year-end audit
adjustments).


 


Section 8.2.  Year-End Statements.


 


As
soon as available and in any event within 5 days after the same is filed with
the Securities and Exchange Commission (but in no event later than 90 days
after the end of each


 


49





















 


fiscal year of the
Borrower), the audited consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such fiscal year and the related audited
consolidated statements of income, shareholders’ equity and cash flows of the
Borrower and its Subsidiaries for such fiscal year, setting forth in
comparative form the figures as at the end of and for the previous fiscal year,
all of which shall be (a) certified by the chief executive officer, chief
financial officer, or other financial officer of the Borrower who is a vice
president or more senior officer, in his or her opinion, to present fairly, in
accordance with GAAP consistently applied, the consolidated financial position
of the Borrower and its Subsidiaries as at the date thereof and the results of
operations for such period and (b) accompanied by the report thereon of
KPMG LLP or other independent certified public accountants of recognized
national standing acceptable to the Agent, whose certificate shall be
unqualified or in scope and substance satisfactory to the Requisite Lenders.


 


Section 8.3.  Compliance Certificate.


 


At the
time financial statements are furnished pursuant to Sections 8.1. and
8.2., and within 5 Business Days of the Agent’s request with respect to any
other fiscal period, a certificate substantially in the form of Exhibit F
(a “Compliance Certificate”) executed by the chief financial officer or any
senior financial officer of the Borrower with a title of “Vice President” or a
title more senior thereto of the Borrower: (a) setting forth in reasonable
detail as at the end of such quarterly accounting period, fiscal year, or other
fiscal period, as the case may be, the calculations required to establish
whether or not the Borrower was in compliance with the covenants contained in
Sections 9.1., 9.2. and 9.3. and (b) stating that, to the best of his
or her knowledge, information and belief after due inquiry, no Default or Event
of Default exists, or, if such is not the case, specifying such Default or
Event of Default and its nature, when it occurred, whether it is continuing and
the steps being taken by the Borrower with respect to such event, condition or
failure.  Together with the delivery of
each Compliance Certificate, the Borrower shall deliver a report, in form
and detail reasonably satisfactory to the Agent, setting forth a list of all
Properties acquired by the Borrower, its Subsidiaries, and its Unconsolidated
Affiliates since the date of the delivery of the previous Compliance
Certificate, such list to identify such Property’s name, location, year built
or acquired, anchor tenants, amount of related mortgage Indebtedness, if any, and the maturity of such mortgage Indebtedness, and the Occupancy Rate
and Net Operating Income for such Property.


 


Section 8.4.  Other Information.


 


(a)                                  Management
Reports.  Promptly upon receipt
thereof, copies of all management reports, if any, submitted to the Borrower or
its Board of Directors by its independent public accountants;


 


(b)                                 Securities
Filings.  Prompt notice of the filing
of all registration statements (excluding the exhibits thereto (unless
requested by the Agent) and any registration statements on Form S-8 or its
equivalent), reports on Forms 10-K, 10-Q and 8-K (or their equivalents) and all
other periodic reports which the Borrower, any Subsidiary or any other Loan
Party shall file with the Securities and Exchange Commission (or any
Governmental Authority substituted therefor) or any national securities
exchange (such registration statements, reports and other


 


50





















 


periodic reports
collectively referred to a “Security Filing”), and copies of any of the
foregoing that is not publicly available to the Agent and the Lenders or at a
Lender’s request therefor;


 


(c)                                  Shareholder
Information; Press Releases. 
Promptly upon the mailing thereof to the shareholders of the Borrower
generally, copies of all financial statements, reports and proxy statements so
mailed and promptly upon the issuance thereof copies of all press releases
issued by the Borrower, any Subsidiary or any other Loan Party (but only to the
extent that such financial statements, reports and proxy statements are not
publicly available to the Agent and the Lenders);


 


(d)                                 ERISA.  If and when any member of the ERISA Group (i) gives
or is required to give notice to the PBGC of any “reportable event” (as defined
in Section 4043 of ERISA) with respect to any Plan which might constitute
grounds for a termination of such Plan under Title IV of ERISA, or knows that
the plan administrator of any Plan has given or is required to give notice of
any such reportable event, a copy of the notice of such reportable event given
or required to be given to the PBGC; (ii) receives notice of complete or
partial withdrawal liability under Title IV of ERISA or notice that any
Multiemployer Plan is in reorganization, is insolvent or has been terminated, a
copy of such notice; (iii) receives notice from the PBGC under Title IV of
ERISA of an intent to terminate, impose liability (other than for premiums
under Section 4007 of ERISA) in respect of, or appoint a trustee to
administer, any Plan, a copy of such notice; (iv) applies for a waiver of
the minimum funding standard under Section 412 of the Internal Revenue
Code, a copy of such application; (v) gives notice of intent to terminate
any Plan under Section 4041(c) of ERISA, a copy of such notice and
other information filed with the PBGC; (vi) gives notice of withdrawal
from any Plan pursuant to Section 4063 of ERISA, a copy of such notice; or
(vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement or makes any amendment
to any Plan or Benefit Arrangement, and of which there has resulted or could
reasonably be expected to result in the imposition of a Lien or the posting of
a bond or other security, a certificate of the chief executive officer or chief
financial officer of the Borrower setting forth details as to such occurrence
and the action, if any, which the Borrower or applicable member of the ERISA
Group is required or proposes to take;


 


(e)                                  Litigation.  To the extent the Borrower or any Subsidiary
is aware of the same, prompt notice of the commencement of any proceeding or
investigation by or before any Governmental Authority and any action or
proceeding in any court or other tribunal or before any arbitrator against or
in any other way relating adversely to, or adversely affecting, the Borrower or
any Subsidiary or any of their respective properties, assets or businesses
which could reasonably be expected to have a Material Adverse Effect;


 


(f)                                    Modification
of Organizational Documents. 
Promptly upon the Agent’s request therefor, a copy of any amendment to
the articles of incorporation, bylaws, partnership agreement, operating
agreement or other similar organizational documents of the Borrower, any
Subsidiary or any other Loan Party;


 


(g)                                 Change
of Financial Condition.  To the
extent not otherwise publicly available to the Agent and the Lenders in a
Security Filing, prompt notice of any change in the business,


 


51





















 


assets, liabilities,
financial condition or results of operations of the Borrower, any Subsidiary or
any other Loan Party which has had or, in the Borrower’s reasonable judgment,
could be expected to have a Material Adverse Effect;


 


(h)                                 Default.
Notice of the occurrence of any Default or Event of Default promptly upon a
Responsible Officer of the Borrower obtaining knowledge thereof;


 


(i)                                     Judgments.  To the extent not otherwise publicly
available to the Agent and the Lenders in a Security Filing, prompt notice of
any order, judgment or decree in excess of $20,000,000 having been entered
against the Borrower, any Subsidiary or any other Loan Party or any of their
respective properties or assets;


 


(j)                                     Notice
of Violations of Law.  To the extent
not otherwise publicly available to the Agent and the Lenders in a Security
Filing, prompt notice if the Borrower, any Subsidiary or any other Loan Party
shall receive any notification from any Governmental Authority alleging a
violation of any Applicable Law or any inquiry which, in either case, could
reasonably be expected to have a Material Adverse Effect;


 


(k)                                  Material
Asset Sales.  To the extent not
otherwise publicly available to the Agent and the Lenders in a Security Filing,
prompt notice of the sale, transfer or other disposition of any assets (which
have a value equal to or greater than $30,000,000) of the Borrower, any
Subsidiary or any other Loan Party to any Person other than the Borrower, any
Subsidiary or any other Loan Party;


 


(l)                                     Patriot
Act Information.  From time to time
and promptly upon each request, information identifying the Borrower as a
Lender may request in order to comply with the USA Patriot Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001));


 


(m)                               Senior
Note Indentures.  Contemporaneously
with their delivery to the holders of Indebtedness issued pursuant to the
Senior Note Indentures, copies of all financial information and reports
provided under the Senior Note Indentures (including, without limitation, the
compliance certificates required to be delivered under Section 4.11 of
each of the REIT Note Indentures and Section 1008 of the Bradley OP Note
Indenture); and


 


(n)                                 Other
Information.  From time to time and
promptly upon each request, such data, certificates, reports, statements,
opinions of counsel, documents or further information regarding the business,
assets, liabilities, financial condition, results of operations or business
prospects of the Borrower or any of its Subsidiaries as the Agent or any Lender
may reasonably request.


 


Section 8.5.  Delivery of Documents.


 


Documents required to be delivered by the Borrower
pursuant to Article VIII. (to the extent any such documents are not otherwise included in a
Security Filing) may be delivered electronically and if so delivered, shall be
deemed to have been delivered on the date on which such documents are posted by
the Agent on the Borrower’s behalf on an internet or intranet website, if any,
to which each Lender and the Agent has access (whether a commercial, third-party
website (such as IntraLinks or SyndTraks) or a website sponsored by the Agent);


 


52





















 


provided
that the Borrower shall deliver paper copies of such documents to the Agent or
any Lender that requests the Borrower to deliver such paper copies until a
written request to cease delivering paper copies is given by the Agent or such
Lender. Notwithstanding anything contained herein, in every instance the
Borrower shall be required to provide paper copies of the Compliance
Certificate required by Section 8.3. to the Agent.  The Agent shall
have no obligation to request the delivery or to maintain copies of the
documents referred to above, and in any event shall have no responsibility to
monitor compliance by the Borrower with any such request for delivery, and each
Lender shall be solely responsible for requesting delivery to it or maintaining
its copies of such documents.


 


ARTICLE IX.
NEGATIVE COVENANTS


 


For so
long as this Agreement is in effect, unless the Requisite Lenders (or, if
required pursuant to Section 12.6., all of the Lenders) shall otherwise
consent in the manner set forth in Section 12.6., the Borrower shall
comply with the following covenants:


 


Section 9.1.  Financial Covenants.


 


The
Borrower shall not permit:


 


(a)                                  Maximum
Leverage Ratio.  The ratio (the “Maximum
Leverage Ratio”) of (i) Combined Total Indebtedness to (ii) Combined
Total Asset Value, to exceed 0.60 to 1.00 at any time; provided, however, that
if the Maximum Leverage Ratio is greater than 0.60 to 1.00 but is less than
0.65 to 1.00, then such failure to comply with the foregoing covenant shall not
constitute a Default or an Event of Default so long as (1) the Borrower’s
failure to comply with the foregoing covenant is a direct result of the
Borrower’s (or any Subsidiary’s) acquisition of a portfolio of Properties, (2) such
acquisition is otherwise permitted hereunder, and (3) the Maximum Leverage
Ratio ceases to exceed 0.60 to 1.00 within 180 days following the date the
Maximum Leverage Ratio first exceeded 0.60 to 1.00.


 


(b)                                 Minimum
Fixed Charge Coverage Ratio.  The
ratio of (i) Combined Adjusted EBITDA for the period of two consecutive
fiscal quarters of the Borrower most recently ending to (ii) Fixed Charges
for such period, to be less than 1.70 to 1.00 at any time.


 


(c)                                  Maximum
Combined Secured Indebtedness Ratio. 
The ratio of (i) Combined Secured Indebtedness of the Combined
Group to (ii) Combined Total Asset Value, to exceed 0.40 to 1.00 at any
time.


 


(d)                                 Maximum
Combined Secured Recourse Indebtedness Ratio.  The ratio of (i) Combined Secured
Recourse Indebtedness of the Combined Group to (ii) Combined Total Asset
Value, to exceed 0.10 to 1.00 at any time.


 


(e)                                  Minimum
Unencumbered Leverage Ratio.  The
ratio of (i) Unencumbered Asset Value to (ii) Combined Unsecured
Indebtedness of the Combined Group, to be less than 1.67 to 1.00 at any time.


 


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(f)                                    Minimum
Unencumbered Interest Coverage Ratio. 
The ratio of (i) Unencumbered Adjusted NOI for the period of two
consecutive fiscal quarters of the Borrower most recently ending to (ii) Unsecured
Interest Expense for such period, to be less than 2.00 to 1.00 at any time.


 


(g)                                 Minimum
Combined Tangible Net Worth. 
Combined Tangible Net Worth at any time to be less than (i) $750,000,000
plus (ii) 85% of the Net Proceeds of all Equity Issuances effected
by the Borrower or any Subsidiary after December 31, 2004 (other than (A) Equity
Issuances to the Borrower or any Subsidiary and (B) any increase in
Combined Tangible Net Worth to the extent attributable to employee stock option
exercises and employee compensation in an aggregate amount not to exceed
$5,000,000).


 


Section 9.2.  Restricted Payments.


 


The
Borrower shall not, and shall not permit any of its Subsidiaries to, declare or
make any Restricted Payment; provided, however, that the Borrower and its
Subsidiaries may declare and make the following Restricted Payments so long as
no Default or Event of Default would result therefrom:


 


(a)                                  the
Borrower may declare or make cash distributions to its shareholders (together
with cash distributions of the Heritage OP and the Bradley OP to its limited
partners other than the Borrower) during any period of four consecutive fiscal
quarters ending during the term of this Agreement in an aggregate amount not to
exceed the greater of (i) 95% of Funds From Operations of the Combined
Group for such period or (ii) the amount required to be distributed for
the Borrower to remain in compliance with Section 7.13.; provided, however, that in no event shall
such cash distributions made during any period of two consecutive fiscal
quarters exceed in an aggregate amount 100% of Funds From Operations of the
Combined Group for such period;


 


(b)                                 the
Borrower may make cash distributions to its shareholders of capital gains
resulting from gains from certain asset sales to the extent necessary to avoid
payment of taxes on such asset sales imposed under Sections 857(b)(3) and
4981 of the Internal Revenue Code;


 


(c)                                  a
Subsidiary that is not a Wholly Owned Subsidiary may make cash distributions to
holders of Equity Interests issued by such Subsidiary;


 


(d)                                 the
Bradley OP may repurchase, redeem or otherwise acquire Equity Interests issued
by the Bradley OP;


 


(e)                                  Subsidiaries
may pay Restricted Payments to the Borrower or any other Subsidiary; and


 


(f)                                    the
Borrower may make cash payments to repurchase outstanding shares of any of its
Equity Interests.


 


If an Event of Default
shall exist, the Borrower shall not, and shall not permit any Subsidiary to,
make any Restricted Payments to any Person other than (i) to the Borrower
or any Subsidiary and (ii) cash distributions by the Borrower to its
shareholders during any fiscal year in an


 


54





















 


aggregate amount not to
exceed the minimum amount necessary for the Borrower to remain in compliance
with Section 7.13.


 


Section 9.3.
Certain Permitted Investments.


 


The
Borrower shall not, and shall not permit any Subsidiary to, make any Investment
in or otherwise own the following items which would cause the aggregate value
of such holdings of the Borrower and such other Subsidiaries to exceed the
applicable limits set forth below:


 


(a)                                  Investments
in Unconsolidated Affiliates and other Persons that are not Wholly Owned
Subsidiaries (other than Subsidiaries that are Guarantors and the Bradley OP (and Wholly Owned Subsidiaries
of the Bradley OP) so long as the Borrower owns at least 66-2/3% of the Equity
Interests issued by the Bradley OP), such that the aggregate value of
such Investments (determined in a manner consistent with the definition of
Combined Total Asset Value or, if not contemplated under the definition of
Combined Total Asset Value, as determined in accordance with GAAP) exceeds
20.0% of Combined Total Asset Value at any time;


 


(b)                                 Mortgage
Receivables, such that the aggregate book value of all such Mortgage
Receivables exceeds 10.0% of Combined Total Asset Value at any time;


 


(c)                                  real
property under construction such that the aggregate Construction Budget for all
such real property exceeds 15.0% of Combined Total Asset Value at any time; and


 


(d)                                 Unimproved
Land, such that the current book value of all Unimproved Land exceeds 5.0% of
Combined Total Asset Value at any time.


 


In addition to the
foregoing limitations, the aggregate value of all of the items subject to the
limitations in the preceding clauses (a) through (d) shall not
exceed 35.0% of Combined Total Asset Value at any time.


 


Section 9.4.  Liens; Negative Pledges; Other Matters.


 


(a)                                  The
Borrower shall not, and shall not permit any Subsidiary or other Loan Party to,
create, assume, or incur any Lien (other than Permitted Liens) upon any of its
properties, assets, income or profits of any character whether now owned or
hereafter acquired if immediately prior to the creation, assumption or incurring
of such Lien, or immediately thereafter, an Event of Default resulting from a
violation of any of the covenants contained in Section 9.1. is or would be
in existence.


 


(b)                                 The
Borrower shall not, and shall not permit any Subsidiary or other Loan Party to,
enter into, assume or otherwise be bound by any Negative Pledge except for a
Negative Pledge contained in (i) the Revolving Credit Agreement; (ii) an
agreement (x) evidencing Indebtedness which the Borrower or such
Subsidiary may create, incur, assume, or permit or suffer to exist hereunder;
(y) which Indebtedness is secured by a Lien permitted to exist under the
Loan Documents; and (z) which prohibits the creation of any other Lien on
only the property securing such Indebtedness as of the date such agreement was
entered into; or (iii) an agreement


 


55





















 


relating to the sale of a
Subsidiary or assets pending such sale, provided that in any such case the
Negative Pledge applies only to the Subsidiary or the assets that are the
subject of such sale.


 


(c)                                  Except
for provisions contained in the Revolving Credit Agreement, the Borrower shall
not, and shall not permit any Subsidiary or other Loan Party to, create or
otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any Subsidiary (other
than an Excluded Subsidiary) to: (i) pay dividends or make any other
distribution on any of such Subsidiary’s capital stock or other equity
interests owned by the Borrower or any Subsidiary; (ii) pay any
Indebtedness owed to the Borrower or any Subsidiary; (iii) make loans or
advances to the Borrower or any Subsidiary; or (iv) transfer any of its
property or assets to the Borrower or any Subsidiary.


 


Section 9.5.  Merger, Consolidation, Sales of Assets and
Other Arrangements.


 


The
Borrower shall not, and shall not permit any Subsidiary or other Loan Party to:
(i) enter into any transaction of merger or consolidation; (ii) liquidate,
wind up or dissolve itself (or suffer any liquidation or dissolution); or (iii) convey,
sell, lease, sublease, transfer or otherwise dispose of, in one transaction or
a series of transactions, all or substantially all of its business or assets,
whether now owned or hereafter acquired; provided, however, that:


 


(a)                                  any
of the actions described in the immediately preceding clauses (i) through
(iii) may be taken with respect to any Subsidiary or any other Loan Party
(other than the Borrower) so long as immediately prior to the taking of such
action, and immediately thereafter and after giving effect thereto, no Event of
Default is or would be in existence; notwithstanding the foregoing, any such
Loan Party (other than the Borrower) may enter into a transaction of merger
pursuant to which such Loan Party is not the survivor of such merger only if (i) the
Borrower shall have given the Agent and the Lenders at least 10 Business Days’
prior written notice of such merger, such
notice to include a certification to the effect that immediately after
and after giving effect to such action, no Event of Default is or would be in
existence; (ii) if the survivor entity is a Material Subsidiary (and not
an Excluded Subsidiary) within 5 Business Days of consummation of such merger,
the survivor entity (if not already a Guarantor) shall have executed and
delivered an assumption agreement in form and substance satisfactory to the
Agent pursuant to which such survivor entity shall expressly assume all of such
Loan Party’s Obligations under the Loan Documents to which it is a party; (iii) within
10 days of consummation of such merger, the survivor entity delivers to the
Agent the following: (A) items of the type referred to in Sections 5.1.(a)(iv) through
(viii) and (xiii) with respect to the survivor entity as in effect after
consummation of such merger (if not previously delivered to the Agent and still
in effect), (B) copies of all documents entered into by such Loan Party or
the survivor entity to effectuate the consummation of such merger, including,
but not limited to, articles of merger and the plan of merger, (C) copies,
certified by the Secretary or Assistant Secretary (or other individual
performing similar functions) of such Loan Party or the survivor entity, of all
corporate and shareholder action authorizing such merger and (D) copies of
any filings with the Securities and Exchange Commission in connection with such
merger; and (iv) such Loan Party and the survivor entity each takes such
other action and delivers such other documents, instruments, opinions and
agreements as the Agent may reasonably request;


 


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(b)                                 a
Person may merge with and into the Borrower so long as (i) the Borrower is
the survivor of such merger, (ii) immediately prior to such merger, and
immediately thereafter and after giving effect thereto, no Event of Default is
or would be in existence, and (iii) the Borrower shall have given the
Agent and the Lenders at least 10 Business Days’ prior written notice of such
merger, such notice to include a
certification as to the matters described in the immediately preceding
clause (ii) (except that such prior notice shall not be
required in the case of the merger of a Subsidiary with and into the Borrower);


 


(c)                                  the
Borrower, its Subsidiaries and the other Loan Parties may lease and sublease
their respective assets, as lessor or sublessor (as the case may be), in the
ordinary course of their business; and


 


(d)                                 the
Borrower and each Subsidiary may sell, transfer or dispose of assets among
themselves.


 


Section 9.6.  Fiscal Year.


 


The
Borrower shall not change its fiscal year from that in effect as of the
Agreement Date.


 


Section 9.7.  Modifications to PMCC Documents; Limitations
on Modifications to Loan Documents.


 


The Borrower shall not, and shall not permit any
Subsidiary or other Loan Party to, enter into any amendment, waiver or
modification to the PMCC Loan Agreement or PMCC Indemnity which could
reasonably be expected to have in any material respect an adverse effect on the
interests of the Agent or the Lenders. 
None of the Borrower and its Subsidiaries shall maintain or enter into
any agreement containing any provision which restricts the ability of any Loan
Party to amend or modify this Agreement or any other Loan Document.


 


Section 9.8.  Modifications of Organizational Documents.


 


The
Borrower shall not, and shall not permit any Loan Party or other Subsidiary to,
amend, supplement, restate or otherwise modify its articles or certificate of
incorporation, by-laws, operating agreement, declaration of trust, partnership
agreement or other applicable organizational document if such amendment,
supplement, restatement or other modification could reasonably be expected to
have a materially adverse effect on (a) the ability of the Borrower or any
other Loan Party to perform its obligations under any Loan Document to which it
is a party, (b) the validity or enforceability of any of the Loan
Documents, (c) the rights and remedies of the Lenders and the Agent under
any of the Loan Documents or (d) the timely payment of the principal of or
interest on the Loans or other amounts payable in connection therewith.


 


Section 9.9.  Transactions with Affiliates.


 


The
Borrower shall not, and shall not permit any of its Subsidiaries or any other
Loan Party to, permit to exist or enter into, any transaction (including the
purchase, sale, lease or


 


57





















 


exchange of any property
or the rendering of any service) with any Affiliate (other than a Loan Party),
except (i) transactions which are no less favorable to the Borrower or
such Subsidiary than would be obtained in a comparable arm’s length transaction
with a Person that is not an Affiliate and (ii) transactions with
Unconsolidated Affiliates to the extent such transactions relate to property
management, leasing services, financing services, legal services or
construction management.


 


Section 9.10.  ERISA Exemptions.


 


The
Borrower shall not, and shall not permit any Subsidiary to, permit any of its
respective assets to become or be deemed to be “plan assets” within the meaning
of ERISA, the Internal Revenue Code and the respective regulations promulgated
thereunder.


 


ARTICLE X.
DEFAULT


 


Section 10.1.  Events of Default.


 


Each
of the following shall constitute an Event of Default, whatever the reason for
such event and whether it shall be voluntary or involuntary or be effected by
operation of Applicable Law or pursuant to any judgment or order of any
Governmental Authority:


 


(a)                                  Default
in Payment of Principal.  The
Borrower shall fail to pay when due (whether upon demand, at maturity, by
reason of acceleration or otherwise) the principal of any of the Loans.


 


(b)                                 Default
in Payment of Interest and Other Obligations.  The Borrower shall fail to pay when due any
interest on any of the Loans or any of the other payment Obligations owing by
the Borrower under this Agreement or any other Loan Document, or any other Loan
Party shall fail to pay when due any payment Obligation owing by such other
Loan Party under any Loan Document to which it is a party, and such failure
shall continue for a period of three Business Days.


 


(c)                                  Default
in Performance.  (i) The
Borrower shall fail to perform or observe any term, covenant, condition or
agreement contained in Section 8.4.(h) or in Article IX. or (ii) the
Borrower or any other Loan Party shall fail to perform or observe any term,
covenant, condition or agreement contained in this Agreement or any other Loan
Document to which it is a party and not otherwise mentioned in this Section and
in the case of this clause (ii) only such failure shall continue for
a period of 30 days after the earlier of (x) the date upon which a
Responsible Officer of the Borrower or such other Loan Party obtains knowledge
of such failure or (y) the date upon which the Borrower has received
written notice of such failure from the Agent.


 


(d)                                 Misrepresentations.  Any written statement, representation or
warranty made or deemed made by or on behalf of the Borrower or any other Loan
Party under this Agreement or under any other Loan Document, or any amendment
hereto or thereto, or in any other writing or statement at any time furnished
or made or deemed made by or on behalf of the Borrower or any other Loan Party
to the Agent or any Lender, shall at any time prove to have been incorrect or
misleading, in light of the circumstances in which made or deemed made, in any
material respect


 


58





















 


when furnished or made or
deemed made; provided that this clause (d) shall not serve as the basis
for an Event of Default to the extent that (A) the Borrower’s violation of
this clause (d) results solely from its certification under Section 5.2.(a) that
no Default or Event of Default existed as of the date of the making of a Loan
or would exist immediately after giving effect thereto and (B) in the case
of a Default, the Default that existed at such time has been cured and, in the
case of an Event of Default, the Event of Default that existed at such time has
been waived pursuant to Section 12.6.


 


(e)                                  Indebtedness
Cross-Default; Derivatives Contracts.


 


(i)                                     The
Borrower, any Subsidiary or any other Loan Party shall fail to pay when due and
payable, within any applicable grace or cure period, the principal of, or
interest on, any Indebtedness (other than the Loans) having an aggregate
outstanding principal amount of $25,000,000 or more (or $50,000,000 or more in
the case of Nonrecourse Indebtedness) (“Material Indebtedness”); or


 


(ii)                                  (x) the
maturity of any Material Indebtedness shall have been accelerated in accordance
with the provisions of any indenture, contract or instrument evidencing,
providing for the creation of or otherwise concerning such Material
Indebtedness or (y) any Material Indebtedness shall have been required to
be prepaid or repurchased prior to the stated maturity thereof;


 


(iii)                               any other event shall
have occurred and be continuing which permits any holder or holders of Material
Indebtedness, any trustee or agent acting on behalf of such holder or holders
or any other Person, to accelerate the maturity of any such Material
Indebtedness or require any such Material Indebtedness to be prepaid or
repurchased prior to its stated maturity; or


 


(iv)                              any
Loan Party shall fail to pay when due and payable amounts in excess of
$25,000,000 in the aggregate owing in respect of any Derivatives Contracts.


 


(f)                                    Voluntary
Bankruptcy Proceeding.  The Borrower,
any other Loan Party or any Significant Subsidiary shall:  (i) commence a voluntary case under the
Bankruptcy Code of 1978, as amended, or other federal bankruptcy laws (as now
or hereafter in effect); (ii) file a petition seeking to take advantage of
any other Applicable Laws, domestic or foreign, relating to bankruptcy,
insolvency, reorganization, winding-up, or composition or adjustment of debts; (iii) consent
to, or fail to contest in a timely and appropriate manner, any petition filed
against it in an involuntary case under such bankruptcy laws or other
Applicable Laws or consent to any proceeding or action described in the
immediately following subsection; (iv) apply for or consent to, or fail to
contest in a timely and appropriate manner, the appointment of, or the taking
of possession by, a receiver, custodian, trustee, or liquidator of itself or of
a substantial part of its property, domestic or foreign; (v) admit in
writing its inability to pay its debts as they become due; (vi) make a
general assignment for the benefit of creditors; (vii) make a conveyance
fraudulent as to creditors under any Applicable Law; or (viii) take any
corporate or partnership action for the purpose of effecting any of the
foregoing.


 


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(g)           Involuntary Bankruptcy Proceeding.  A case or other proceeding shall be commenced
against the Borrower, any other Loan Party or any Significant Subsidiary in any
court of competent jurisdiction seeking: 
(i) relief under the Bankruptcy Code of 1978, as amended, or other
federal bankruptcy laws (as now or hereafter in effect) or under any other
Applicable Laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts; or (ii) the
appointment of a trustee, receiver, custodian, liquidator or the like of such
Person, or of all or any substantial part of the assets, domestic or foreign,
of such Person, and such case or proceeding shall continue undismissed or
unstayed for a period of 60 consecutive calendar days, or an order
granting the remedy or other relief requested in such case or proceeding
against the Borrower, such Significant Subsidiary or such other Loan Party
(including, but not limited to, an order for relief under such Bankruptcy Code
or such other federal bankruptcy laws) shall be entered.


 


(h)           Litigation; Enforceability.  The Borrower or any other Loan Party shall
disavow, revoke or terminate (or attempt to terminate) any Loan Document to
which it is a party or shall otherwise challenge or contest in any action, suit
or proceeding in any court or before any Governmental Authority the validity or
enforceability of this Agreement, any Note or any other Loan Document or this
Agreement, any Note, the Guaranty or any other Loan Document shall cease to be
in full force and effect (except as a result of the express terms thereof).


 


(i)            Judgment.  A judgment or order for the payment of money
or for an injunction shall be entered against the Borrower, any Significant
Subsidiary or any other Loan Party, by any court or other tribunal and (i) such
judgment or order shall continue for a period of 30 days without being paid,
stayed or dismissed through appropriate appellate proceedings and (ii) either
(A) the amount of such judgment or order for which insurance has not been
acknowledged in writing by the applicable insurance carrier (or the amount as
to which the insurer has denied liability) exceeds, individually or together
with all other such outstanding judgments or orders entered against the Borrower,
such Subsidiaries and such other Loan Parties, $25,000,000 or (B) in the
case of an injunction or other non-monetary judgment, such judgment could
reasonably be expected to have a Material Adverse Effect.


 


(j)            Attachment.  A warrant, writ of attachment, execution or
similar process shall be issued against any property of the Borrower, any
Significant Subsidiary or any other Loan Party which exceeds, individually or
together with all other such warrants, writs, executions and processes,
$25,000,000 in amount and such warrant, writ, execution or process shall not be
discharged, vacated, stayed or bonded for a period of 30 days; provided,
however, that if a bond has been issued in favor of the claimant or other
Person obtaining such warrant, writ, execution or process, the issuer of such
bond shall execute a waiver or subordination agreement in form and substance
satisfactory to the Agent pursuant to which the issuer of such bond
subordinates its right of reimbursement, contribution or subrogation to the
Obligations and waives or subordinates any Lien it may have on the assets of
any Loan Party.


 


(k)           ERISA.  Any member of the ERISA Group shall fail to
pay when due an amount or amounts aggregating in excess of $5,000,000 which it
shall have become liable to pay under Title IV of ERISA; or notice of intent to
terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of
$5,000,000 shall be filed under Title IV of ERISA by any member of the 


 


60





















 


ERISA Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to
terminate, to impose liability (other than for premiums under Section 4007
of ERISA) in respect of, or to cause a trustee to be appointed to administer,
any Plan or Plans having aggregate Unfunded Liabilities in excess of
$5,000,000; or a condition shall exist by reason of which the PBGC would be
entitled to obtain a decree adjudicating that any such Plan must be terminated;
or there shall occur a complete or partial withdrawal from, or a default,
within the meaning of Section 4219(c)(5) of ERISA, with respect to,
one or more Multiemployer Plans which could cause one or more members of the
ERISA Group to incur a current payment obligation in excess of $5,000,000.


 


(l)            Loan Documents.  An Event of Default (as defined therein)
shall occur under any of the other Loan Documents or under the Revolving Credit
Agreement.


 


(m)          Change of Control/Change in
Management.


 


(i)            Any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), other
than the New England Teamsters and Trucking Industry Pension Fund, is or
becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act, except that a Person will be deemed to have “beneficial
ownership” of all securities that such Person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time),
directly or indirectly, of more than 33% of the total voting power of the then
outstanding voting stock of the Borrower;


 


(ii)           During
any period of 12 consecutive months ending after the Agreement Date,
individuals who at the beginning of any such 12-month period constituted the
Board of Directors of the Borrower (together with any new directors whose
election by such Board or whose nomination for election by the shareholders of
the Borrower was approved by a vote of a majority of the directors then still
in office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for any
reason to constitute a majority of the Board of Directors of the Borrower then
in office; or


 


(iii)          The
Borrower or a Wholly Owned Subsidiary of the Borrower shall cease to be the
sole general partner of either Operating Partnership.


 


Section 10.2.  Remedies Upon Event of Default.


 


Upon
the occurrence of an Event of Default the following provisions shall apply:


 


(a)           Acceleration; Termination of
Facilities.


 


(i)            Automatic.  Upon the occurrence of an Event of Default
specified in Section 10.1.(f) or 10.1.(g), (A)(1) the principal
of, and all accrued interest on, the Loans and the Notes at the time
outstanding, and (2) all of the other Obligations of the Borrower,
including, but not limited to, the other amounts owed to the Lenders and the
Agent under this Agreement, the Notes or any of the other Loan Documents shall
become 


 


61





















 


immediately
and automatically due and payable by the Borrower without presentment, demand,
protest, or other notice of any kind, all of which are expressly waived by the
Borrower and (B) all of the Commitments and the obligation of the Lenders
to make Term Loans shall immediately and automatically terminate.


 


(ii)           Optional.  If any other Event of Default shall exist,
the Agent shall, at the direction of the Requisite Lenders:  (A) declare (1) the principal of,
and accrued interest on, the Loans and the Notes at the time outstanding, and (2) all
of the other Obligations, including, but not limited to, the other amounts owed
to the Lenders and the Agent under this Agreement, the Notes or any of the
other Loan Documents to be forthwith due and payable, whereupon the same shall
immediately become due and payable without presentment, demand, protest or
other notice of any kind, all of which are expressly waived by the Borrower and
(B) terminate the Commitments and the obligation of the Lenders to make
Term Loans.


 


(b)           Loan Documents.  The Requisite Lenders may direct the Agent
to, and the Agent if so directed shall, exercise any and all of its rights
under any and all of the other Loan Documents.


 


(c)           Applicable Law.  The Requisite Lenders may direct the Agent
to, and the Agent if so directed shall, exercise all other rights and remedies
it may have under any Applicable Law.


 


(d)           Appointment of Receiver.  To the extent permitted by Applicable Law,
the Agent and the Lenders shall be entitled to the appointment of a receiver
for the assets and properties of the Borrower and its Subsidiaries, without
notice of any kind whatsoever and without regard to the adequacy of any
security for the Obligations or the solvency of any party bound for its
payment, to take possession of all or any portion of the business operations of
the Borrower and its Subsidiaries and to exercise such power as the court shall
confer upon such receiver.


 


Section 10.3.  Remedies Upon Default.


 


Upon
the occurrence of a Default specified in Section 10.1.(g), the Commitments shall immediately and automatically
terminate.


 


Section 10.4.  Allocation of Payments.


 


If an
Event of Default shall exist and maturity of any of the Obligations has been
accelerated, all payments received by the Agent under any of the Loan
Documents, in respect of any principal of or interest on the Obligations or any
other amounts payable by the Borrower hereunder or thereunder, shall be applied
in the following order and priority:


 


(a)           amounts
due the Agent in respect of fees and expenses due under Section 12.2.;


 


(b)           amounts
due the Lenders in respect of fees and expenses due under Section 12.2.,
pro rata in the amount then due each Lender;


 


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(c)           payments
of interest on all Loans to be applied for the ratable benefit of the Lenders;


 


(d)           payments
of principal of all other Loans to be applied for the ratable benefit of the
Lenders;


 


(e)           amounts
due the Agent and the Lenders pursuant to Sections 11.7. and 12.9.;


 


(f)            payment
of all other Obligations and other amounts due and owing by the Borrower and
the other Loan Parties under any of the Loan Documents, if any, to be applied
for the ratable benefit of the Lenders; and


 


(g)           any
amount remaining after application as provided above, shall be paid to the
Borrower or whomever else may be legally entitled thereto.


 


Section 10.5.  Performance by Agent.


 


If the
Borrower shall fail to perform any covenant, duty or agreement contained in any
of the Loan Documents, the Agent may, after notice to the Borrower, perform or
attempt to perform such covenant, duty or agreement on behalf of the Borrower
after the expiration of any cure or grace periods set forth herein.  In such event, the Borrower shall, at the
request of the Agent, promptly pay any amount reasonably expended by the Agent
in such performance or attempted performance to the Agent, together with
interest thereon at the applicable Post-Default Rate from the date of such
expenditure until paid.  Notwithstanding
the foregoing, neither the Agent nor any Lender shall have any liability or
responsibility whatsoever for the performance of any obligation of the Borrower
under this Agreement or any other Loan Document.


 


Section 10.6.  Rights Cumulative.


 


The
rights and remedies of the Agent and the Lenders under this Agreement and each
of the other Loan Documents shall be cumulative and not exclusive of any rights
or remedies which any of them may otherwise have under Applicable Law.  In exercising their respective rights and
remedies the Agent and the Lenders may be selective and no failure or delay by
the Agent or any of the Lenders in exercising any right shall operate as a
waiver of it, nor shall any single or partial exercise of any power or right
preclude its other or further exercise or the exercise of any other power or
right.


 


ARTICLE XI.
THE AGENT


 


Section 11.1.  Authorization and Action.


 


Each Lender hereby appoints and authorizes the Agent
to take such action as contractual representative on such Lender’s behalf and
to exercise such powers under this Agreement and the other Loan Documents as
are specifically delegated to the Agent by the terms hereof and thereof,
together with such powers as are reasonably incidental thereto.  Not in limitation of the foregoing, each
Lender authorizes and directs the Agent to enter into the Loan Documents for
the 


 


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benefit of the Lenders.  Each Lender hereby agrees that, except as
otherwise set forth herein, any action taken by the Requisite Lenders in
accordance with the provisions of this Agreement or the Loan Documents, and the
exercise by the Requisite Lenders 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. 
Nothing herein shall be construed to deem the Agent a trustee or
fiduciary for any Lender or to impose on the Agent duties or obligations other
than those expressly provided for herein. 
At the request of a Lender, the Agent will forward to such Lender copies
or, where appropriate, originals of the documents delivered to the Agent
pursuant to this Agreement or the other Loan Documents.  The Agent will also furnish to any Lender,
upon the request of such Lender, a copy of any certificate or notice furnished
to the Agent by the Borrower, any other Loan Party or any other Affiliate of
the Borrower, pursuant to this Agreement or any other Loan Document not already
delivered to such Lender pursuant to the terms of this Agreement or any such
other Loan Document.  As to any matters
not expressly provided for by the Loan Documents (including, without
limitation, enforcement or collection of any of the Obligations), the Agent
shall not be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in
so acting or refraining from acting) upon the instructions of the Requisite
Lenders (or all of the Lenders if explicitly required under any other provision
of this Agreement), and such instructions shall be binding upon all Lenders and
all holders of any of the Obligations; provided, however, that, notwithstanding
anything in this Agreement to the contrary, the Agent shall not be required to
take any action which exposes the Agent to personal liability or which is
contrary to this Agreement or any other Loan Document or Applicable Law.  Not in limitation of the foregoing, the Agent
shall not exercise any right or remedy it or the Lenders may have under any
Loan Document upon the occurrence of a Default or an Event of Default unless
the Requisite Lenders (or all of the Lenders if explicitly required under any
provision of this Agreement) have so directed the Agent to exercise such right or
remedy.


 


Section 11.2.  Agent’s Reliance, Etc.


 


Notwithstanding
any other provisions of this Agreement or any other Loan Documents, neither the
Agent nor any of its directors, officers, agents, employees or counsel shall be
liable for any action taken or omitted to be taken by it or them under or in
connection with this Agreement or any other Loan Document, except for its or
their own gross negligence or willful misconduct as determined by a court of
competent jurisdiction in a final, non-appealable judgment.  Without limiting the generality of the
foregoing, the Agent: (a) may treat the payee of any Note as the holder
thereof until the Agent receives written notice of the assignment or transfer
thereof signed by such payee and in form satisfactory to the Agent; (b) may
consult with legal counsel (including its own counsel or counsel for the
Borrower or any other Loan Party), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (c) makes no warranty or representation to any
Lender or any other Person and shall not be responsible to any Lender or any
other Person for any statements, warranties or representations made by any
Person in or in connection with this Agreement or any other Loan Document; (d) shall
not have any duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of any of this
Agreement or any other Loan Document or the satisfaction of any conditions
precedent under this Agreement or any Loan Document on the part of the Borrower
or other Persons (except for the delivery to it of any 


 


64





















 


certificate or document specifically required to be delivered to it
pursuant to Section 5.1.) or inspect the property, books or records of the
Borrower or any other Person; (e) shall not be responsible to any Lender
for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other Loan Document, any other
instrument or document furnished pursuant thereto or any collateral covered
thereby or the perfection or priority of any Lien in favor of the Agent on
behalf of the Lenders in any such collateral; and (f) shall incur no
liability under or in respect of this Agreement or any other Loan Document by
acting upon any notice, consent, certificate or other instrument or writing
(which may be by telephone or telecopy) believed by it to be genuine and
signed, sent or given by the proper party or parties.  Unless
set forth in writing to the contrary, the making of its initial Loan by a
Lender shall constitute a certification by such Lender to the Agent and the
other Lenders that the Borrower has satisfied the conditions precedent for
initial Loans set forth in Sections 5.1. and 5.2. that have not previously been waived by the Requisite Lenders.


 


Section 11.3.  Notice of Defaults.


 


The
Agent shall not be deemed to have knowledge or notice of the occurrence of a
Default or Event of Default unless the Agent has received notice from a Lender
or the Borrower referring to this Agreement, describing with reasonable
specificity such Default or Event of Default and stating that such notice is a “notice
of default.”  If any Lender (excluding
the Lender which is also serving as the Agent) becomes aware of any Default or
Event of Default, it shall promptly send to the Agent such a “notice of default”;
provided, that no Lender shall have any liability for any failure to do
so.  Further, if the Agent receives such
a “notice of default”, the Agent shall give prompt notice thereof to the
Lenders.


 


Section 11.4.  Wachovia as Lender.


 


Wachovia,
as a Lender, shall have the same rights and powers under this Agreement and any
other Loan Document as any other Lender and may exercise the same as though it
were not the Agent; and the term “Lender” or “Lenders” shall, unless otherwise
expressly indicated, include Wachovia in each case in its individual
capacity.  Wachovia and its affiliates
may each accept deposits from, maintain deposits or credit balances for, invest
in, lend money to, act as trustee under indentures of, serve as financial advisor
to, and generally engage in any kind of business with, the Borrower, any other
Loan Party or any other affiliate thereof as if it were any other bank and
without any duty to account therefor to the other Lenders.  Further, the Agent and any affiliate may
accept fees and other consideration from the Borrower for services in
connection with this Agreement and otherwise without having to account for the
same to the other Lenders.  The Lenders
acknowledge that, pursuant to such activities, Wachovia or its affiliates may
receive information regarding the Borrower, other Loan Parties, other
Subsidiaries and other Affiliates (including information that may be subject to
confidentiality obligations in favor of such Person) and acknowledge that the
Agent shall be under no obligation to provide such information to them.


 


Section 11.5.  Approvals of Lenders.


 


All
communications from the Agent to any Lender requesting such Lender’s
determination, consent, approval or disapproval (a) shall be given in the
form of a written notice 


 


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to such Lender, (b) shall be accompanied by a description of the
matter or issue as to which such determination, approval, consent or
disapproval is requested, or shall advise such Lender where information, if
any, regarding such matter or issue may be inspected, or shall otherwise
describe the matter or issue to be resolved, (c) shall include, if
reasonably requested by such Lender and to the extent not previously provided
to such Lender, written materials and a summary of all oral information
provided to the Agent by the Borrower in respect of the matter or issue to be
resolved, and (d) shall include the Agent’s recommended course of action
or determination in respect thereof. 
Each Lender shall reply promptly, but in any event within 10 Business
Days (or such lesser or greater period as may be specifically required under
the Loan Documents) of receipt of such communication.  Except as otherwise provided in this
Agreement, unless a Lender shall give written notice to the Agent that it
specifically objects to the recommendation or determination of the Agent
(together with a written explanation of the reasons behind such objection)
within the applicable time period for reply, such Lender shall be deemed to
have conclusively approved of or consented to such recommendation or
determination.


 


Section 11.6.  Lender Credit Decision, Etc.


 


Each
Lender expressly acknowledges and agrees that neither the Agent nor any of its
officers, directors, employees, agents, counsel, attorneys-in-fact or other
affiliates has made any representations or warranties as to the financial
condition, operations, creditworthiness, solvency or other information
concerning the business or affairs of the Borrower, any other Loan Party, any
Subsidiary or any other Person to such Lender and that no act by the Agent
hereafter taken, including any review of the affairs of the Borrower, any other
Loan Party or any other Subsidiary, shall be deemed to constitute any such
representation or warranty by the Agent to any Lender.  Each Lender acknowledges that it has made its
own credit and legal analysis and decision to enter into this Agreement and the
transactions contemplated hereby, independently and without reliance upon the
Agent, any other Lender or counsel to the Agent, or any of their respective
officers, directors, employees and agents, and based on the financial
statements of the Borrower, the Subsidiaries or any other Affiliate thereof,
and inquiries of such Persons, its independent due diligence of the business and
affairs of the Borrower, the other Loan Parties, the Subsidiaries and other
Persons, its review of the Loan Documents, the legal opinions required to be
delivered to it hereunder, the advice of its own counsel and such other
documents and information as it has deemed appropriate.  Each Lender also acknowledges that it will,
independently and without reliance upon the Agent, any other Lender or counsel
to the Agent or any of their respective officers, directors, employees and
agents, and based on such review, advice, documents and information as it shall
deem appropriate at the time, continue to make its own decisions in taking or
not taking action under the Loan Documents. 
Except for notices, reports and other documents and information
expressly required to be furnished to the Lenders by the Agent under this
Agreement or any of the other Loan Documents, the Agent shall have no duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, financial and other condition or
creditworthiness of the Borrower, any other Loan Party or any other Affiliate
thereof which may come into possession of the Agent, or any of its officers,
directors, employees, agents, attorneys-in-fact or other affiliates.  Each Lender acknowledges that the Agent’s
legal counsel in connection with the transactions contemplated by this
Agreement is only acting as counsel to the Agent and is not acting as counsel
to such Lender.


 


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Section 11.7.  Indemnification of Agent.


 


Each
Lender agrees to indemnify the Agent (to the extent not reimbursed by the
Borrower and without limiting the obligation of the Borrower to do so) pro rata
in accordance with such Lender’s respective Commitment Percentage, from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, reasonable out-of-pocket costs and expenses, or
disbursements of any kind or nature whatsoever which may at any time be imposed
on, incurred by, or asserted against the Agent (in its capacity as Agent but
not as a Lender) in any way relating to or arising out of the Loan Documents,
any transaction contemplated hereby or thereby or any action taken or omitted
by the Agent under the Loan Documents (collectively, “Indemnifiable Amounts”);
provided, however, that no Lender shall be liable for any portion of such
Indemnifiable Amounts to the extent resulting from the Agent’s gross negligence
or willful misconduct as determined by a court of competent jurisdiction in a
final, non-appealable judgment or if the Agent fails to follow the written
direction of the Requisite Lenders (or all of the Lenders if expressly required
hereunder) unless such failure results from the Agent following the advice of
counsel to the Agent of which advice the Lenders have received notice.  Without limiting the generality of the
foregoing but subject to the preceding proviso, each Lender agrees to reimburse
the Agent (to the extent not reimbursed by the Borrower and without limiting
the obligation of the Borrower to do so), promptly upon demand for its ratable
share of any out-of-pocket expenses (including counsel fees of the counsel(s)
of the Agent’s own choosing) incurred by the Agent in connection with the preparation,
negotiation, execution, or enforcement of, or legal advice with respect to the
rights or responsibilities of the parties under, the Loan Documents, any suit
or action brought by the Agent to enforce the terms of the Loan Documents
and/or collect any Obligations, any “lender liability” suit or claim brought
against the Agent and/or the Lenders, and any claim or suit brought against the
Agent, and/or the Lenders arising under any Environmental Laws.  Such out-of-pocket expenses (including
counsel fees) shall be advanced by the Lenders on the request of the Agent
notwithstanding any claim or assertion that the Agent is not entitled to
indemnification hereunder upon receipt of an undertaking by the Agent that the
Agent will reimburse the Lenders if it is actually and finally determined by a
court of competent jurisdiction that the Agent is not so entitled to
indemnification.  The agreements in this Section shall
survive the payment of the Loans and all other amounts payable hereunder or
under the other Loan Documents and the termination of this Agreement.  If the Borrower shall reimburse the Agent for
any Indemnifiable Amount following payment by any Lender to the Agent in
respect of such Indemnifiable Amount pursuant to this Section, the Agent shall
share such reimbursement on a ratable basis with each Lender making any such
payment.


 


Section 11.8.  Successor Agent.


 


The
Agent may resign at any time as Agent under the Loan Documents by giving
written notice thereof to the Lenders and the Borrower.  The Agent may be removed as Agent under the
Loan Documents for good cause by all of the Lenders (other than the Lender then
acting as Agent) upon 30-days’ prior written notice to the Agent.  Upon any such resignation or removal, the
Requisite Lenders (other than the Lender then acting as Agent, in the case of
the removal of the Agent under the immediately preceding sentence) shall have
the right to appoint a successor Agent which appointment shall, provided no
Default or Event of Default exists, be subject to the Borrower’s approval,
which approval shall not be unreasonably withheld or delayed (except that 


 


67





















 


the Borrower shall, in all events, be deemed to have approved each
Lender and its affiliates as a successor Agent).  If no successor Agent shall have been so
appointed in accordance with the immediately preceding sentence, and shall have
accepted such appointment, within 30 days after the resigning Agent’s giving of
notice of resignation or the Lenders’ removal of the Agent, then the resigning
or removed Agent may, on behalf of the Lenders, appoint a successor Agent,
which shall be a Lender, if any Lender shall be willing to serve, and otherwise
shall be a commercial bank having total combined assets of at least
$50,000,000,000.  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 or removed Agent, and the retiring or
removed Agent shall be discharged from its duties and obligations under the
Loan Documents.  After any Agent’s
resignation or removal hereunder as Agent, the provisions of this Article XI.
shall continue to inure to its benefit and apply as to any actions taken or
omitted to be taken by it while it was Agent under the Loan Documents.


 


Section 11.9.  Titled Agents.


 


Each of the Titled Agents in each such respective
capacity, assumes no responsibility or obligation hereunder, including, without
limitation, for servicing, enforcement or collection of any of the Loans, or
any duties as an agent hereunder for the Lenders.  The titles of “Arranger”, “Syndication Agent”,
“Documentation Agent” and other similar titles, are solely honorific and imply
no fiduciary responsibility on the part of the Titled Agents to the Agent, the
Borrower or any Lender and the use of such titles does not impose on the Titled
Agents any duties or obligations greater than those of any other Lender or
entitle the Titled Agents to any rights other than those to which any other
Lender is entitled.


 


ARTICLE XII.
MISCELLANEOUS


 


Section 12.1.  Notices.


 


Unless
otherwise provided herein, communications provided for hereunder shall be in
writing and shall be mailed, telecopied or delivered as follows:


 


	
  If to the Borrower:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Heritage Property Investment Trust, Inc.

  	
   

  
	
   

  	
  131 Dartmouth Street, 6th Floor

  	
   

  
	
   

  	
  Boston, Massachusetts 02116

  	
   

  
	
   

  	
  Attn: Patrick
  O’Sullivan

  	
   

  
	
   

  	
  Telephone:

  	
  (617) 247-2200
  (ext 2502)

  
	
   

  	
  Telecopy:

  	
  (617) 266-0885

  
				



 


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  With a copy:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Heritage Property Investment Trust, Inc.

  	
   

  
	
   

  	
  131 Dartmouth Street, 6th Floor

  	
   

  
	
   

  	
  Boston, Massachusetts 02116

  	
   

  
	
   

  	
  Attn: Stephen
  Faberman

  	
   

  
	
   

  	
  Telephone:

  	
  (617) 406-2503

  
	
   

  	
  Telecopy:

  	
  (617) 266-0885

  
	
   

  	
   

  	
   

  
	
  If to the Agent:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Wachovia
  Investment Holdings, LLC

  	
   

  
	
   

  	
  171 17th Street,
  6th Floor

  	
   

  
	
   

  	
  Atlanta, Georgia
  30363

  	
   

  
	
   

  	
  Attn: Cathy
  Casey

  	
   

  
	
   

  	
  Telephone:

  	
  (404) 214-6335

  
	
   

  	
  Telecopy:

  	
  (404) 214-5493

  
	
   

  	
   

  	
   

  
	
  If to a Lender:

  	
   

  
	
   

  	
   

  
	
   

  	
  To such Lender’s
  address or telecopy number, as applicable, set forth on its signature page hereto
  or in the applicable Assignment and Acceptance Agreement;

  
				



 


or, as to each party at
such other address as shall be designated by such party in a written notice to
the other parties delivered in compliance with this Section.  All such notices and other communications
shall be effective (i) if mailed, when received; (ii) if telecopied,
when transmitted; or (iii) if hand delivered or sent by overnight courier,
when delivered.  Notwithstanding the
immediately preceding sentence, all notices or communications to the Agent or
any Lender under Article II. shall be effective only when actually
received.  Neither the Agent nor any
Lender shall incur any liability to the Borrower (nor shall the Agent incur any
liability to the Lenders) for acting upon any telephonic notice referred to in
this Agreement which the Agent or such Lender, as the case may be, believes in
good faith to have been given by a Person authorized to deliver such notice or
for otherwise acting in good faith hereunder. The failure of a Person
designated to get a copy of a notice to receive such copy shall not affect the
validity of notice properly given to any other Person.


 


Section 12.2.  Expenses.


 


The
Borrower agrees (a) to pay or reimburse the Agent for all of its
reasonable out-of-pocket costs and expenses incurred in connection with the
preparation, negotiation and execution of, and any amendment, supplement or
modification to, any of the Loan Documents (including due diligence expenses
and travel expenses relating to closing), and the consummation of the
transactions contemplated thereby, including the reasonable fees and
disbursements of counsel to the Agent and costs and expenses in connection with
the use of IntraLinks, Inc. or other similar information transmission
systems in connection with the Loan Documents, (b) to pay or reimburse the
Agent and the Lenders for all their reasonable costs and expenses incurred in
connection with the enforcement or preservation of any rights under the Loan
Documents, including the reasonable fees and disbursements of their respective
counsel (including the 


 


69





















 


allocated fees and expenses of in-house counsel) and any payments in
indemnification or otherwise payable by the Lenders to the Agent pursuant to
the Loan Documents, (c) to pay, and indemnify and hold harmless the Agent
and the Lenders from, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any failure to pay or delay in
paying, documentary, stamp, excise and other similar taxes, if any, which may
be payable or determined to be payable in connection with the execution and
delivery of any of the Loan Documents, or consummation of any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
any Loan Document and (d) to the extent not already covered by any of the
preceding subsections, to pay or reimburse the Agent and the Lenders for all
their costs and expenses incurred in connection with any bankruptcy or other
proceeding of the type described in Section 10.1.(f) or 10.1.(g),
including the reasonable fees and disbursements of counsel to the Agent and any
Lender, whether such fees and expenses are incurred prior to, during or after
the commencement of such proceeding or the confirmation or conclusion of any
such proceeding.  If the Borrower shall
fail to pay any amounts required to be paid by it pursuant to this Section, the
Agent and/or the Lenders may pay such amounts on behalf of the Borrower and
either deem the same to be Loans outstanding hereunder or otherwise Obligations
owing hereunder.


 


Section 12.3.  Setoff.


 


Subject
to Section 3.3. and in addition to any rights now or hereafter granted
under Applicable Law and not by way of limitation of any such rights, the
Agent, each Lender and each Participant is hereby authorized by the Borrower,
at any time or from time to time during the continuance of an Event of Default,
without prior notice to the Borrower or to any other Person, any such notice
being hereby expressly waived, but in the case of a Lender or Participant
subject to receipt of the prior written consent of the Agent exercised in its
sole discretion, to set off and to appropriate and to apply any and all
deposits (general or special, including, but not limited to, indebtedness
evidenced by certificates of deposit, whether matured or unmatured) and any
other indebtedness at any time held or owing by the Agent, such Lender or any
affiliate of the Agent or such Lender, to or for the credit or the account of
the Borrower against and on account of any of the Obligations, irrespective of
whether or not any or all of the Loans and all other Obligations have been
declared to be, or have otherwise become, due and payable as permitted by Section 10.2.,
and although such obligations shall be contingent or unmatured.


 


Section 12.4.  Litigation; Jurisdiction; Other Matters;
Waivers.


 


(a)           EACH PARTY HERETO ACKNOWLEDGES THAT
ANY DISPUTE OR CONTROVERSY BETWEEN OR AMONG THE BORROWER, THE AGENT OR ANY OF
THE LENDERS WOULD BE BASED ON DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT AND
WOULD RESULT IN DELAY AND EXPENSE TO THE PARTIES.  ACCORDINGLY, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, EACH OF THE LENDERS, THE AGENT AND THE BORROWER HEREBY WAIVES
ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE
IN ANY COURT OR TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST
ANY PARTY HERETO ARISING OUT OF THIS AGREEMENT, THE NOTES, OR ANY OTHER LOAN
DOCUMENT OR BY REASON OF ANY OTHER SUIT, CAUSE OF ACTION OR DISPUTE WHATSOEVER
BETWEEN OR AMONG THE BORROWER, 


 


70





















 


THE AGENT OR ANY OF THE LENDERS OF ANY KIND OR NATURE RELATING TO ANY
OF THE LOAN DOCUMENTS.


 


(b)           EACH OF THE BORROWER, THE AGENT AND
EACH LENDER HEREBY AGREES THAT THE FEDERAL DISTRICT COURT OF THE SOUTHERN
DISTRICT OF NEW YORK AND ANY STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN,
NEW YORK, NEW YORK, SHALL HAVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR
DISPUTES BETWEEN OR AMONG THE BORROWER, THE AGENT OR ANY OF THE LENDERS,
PERTAINING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT, THE LOANS, THE NOTES OR
ANY OTHER LOAN DOCUMENT OR TO ANY MATTER ARISING HEREFROM OR THEREFROM.  THE BORROWER AND EACH OF THE LENDERS
EXPRESSLY SUBMIT AND CONSENT IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR
PROCEEDING COMMENCED IN SUCH COURTS WITH RESPECT TO SUCH CLAIMS OR
DISPUTES.  EACH PARTY FURTHER WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS
BROUGHT IN AN INCONVENIENT FORUM, AND EACH AGREES NOT TO PLEAD OR CLAIM THE
SAME.  THE CHOICE OF FORUM SET FORTH IN
THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE BRINGING OF ANY ACTION BY
THE AGENT OR ANY LENDER OR THE ENFORCEMENT BY THE AGENT OR ANY LENDER OF ANY
JUDGMENT OBTAINED IN SUCH FORUM IN ANY OTHER APPROPRIATE JURISDICTION.


 


(c)           THE PROVISIONS OF THIS SECTION HAVE
BEEN CONSIDERED BY EACH PARTY WITH THE ADVICE OF COUNSEL AND WITH A FULL
UNDERSTANDING OF THE LEGAL CONSEQUENCES THEREOF, AND SHALL SURVIVE THE PAYMENT
OF THE LOANS AND ALL OTHER AMOUNTS PAYABLE HEREUNDER OR UNDER THE OTHER LOAN
DOCUMENTS AND THE TERMINATION OF THIS AGREEMENT.


 


Section 12.5.  Successors and Assigns.


 


(a)           The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, except that the Borrower may not
assign or otherwise transfer any of its rights or obligations under this
Agreement without the prior written consent of all Lenders and any such
assignment or other transfer to which all of the Lenders have not so consented
shall be null and void.


 


(b)           Any Lender may make, carry or transfer
Loans at, to or for the account of any of its branch offices or the office of
an affiliate of such Lender except to the extent such transfer would result in
increased costs to the Borrower.


 


(c)           Any Lender may at any time grant to
one or more banks or other financial institutions (each a “Participant”)
participating interests in its Commitment or the Obligations owing to such
Lender; provided, however, (i) any such participating interest must be for
a constant and not a varying percentage interest and (ii) after giving
effect to any such participation by a Lender, the amount of its Commitment, or
if the Commitments have been 


 


71





















 


terminated, the aggregate outstanding principal balance of Notes held
by it, in which it has not granted any participating interests must be equal to
at least $5,000,000.  Except as otherwise
provided in Section 12.3., no Participant shall have any rights or
benefits under this Agreement or any other Loan Document.  A Participant shall not be entitled to
receive any greater payment under Section 3.12. than
the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower’s prior written consent.  A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 3.12.
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower and the Agent, to
comply with Section 3.12.(c) as though it were a Lender.  In the event of any such grant by a Lender of
a participating interest to a Participant, such Lender shall remain responsible
for the performance of its obligations hereunder, and the Borrower and the
Agent shall continue to deal solely and directly with such Lender in connection
with such Lender’s rights and obligations under this Agreement.  Any agreement pursuant to which any Lender
may grant such a participating interest shall provide that such Lender shall
retain the sole right and responsibility to enforce the obligations of the
Borrower hereunder including, without limitation, the right to approve any
amendment, modification or waiver of any provision of this Agreement; provided,
however, such Lender may agree with the Participant that it will not, without
the consent of the Participant, agree to (i) increase, or extend the term
or extend the time or waive any requirement for the reduction or termination
of, such Lender’s Commitment or Term Loans, (ii) extend the date fixed for
the payment of principal of or interest on the Loans or portions thereof owing
to such Lender, (iii) reduce the amount of any such payment of principal, (iv) reduce
the rate at which interest is payable thereon or (v) release any Guarantor
(except as otherwise permitted under Section 7.12.(b)).  An assignment or other transfer which is not
permitted by subsection (d) or (e) below shall be given effect for
purposes of this Agreement only to the extent of a participating interest
granted in accordance with this subsection (c).  Upon request from the Agent, a Lender shall
notify the Agent of the sale of any participation hereunder and, if requested
by the Agent, certify to the Agent that such participation is permitted
hereunder and that the requirements of Section 3.12.(c) have been
satisfied.


 


(d)           Any
Lender may with the prior written consent of the Agent and, so long as no
Default or Event of Default exists, the Borrower (which consent, in each case,
shall not be unreasonably withheld (it being agreed that the Borrower’s
withholding of consent to an assignment which would result in the Borrower
having to pay amounts under Section 3.12., shall be deemed to be
reasonable)), assign to one or more Eligible Assignees (each an “Assignee”) all
or a portion of its rights and obligations under this Agreement and the Notes
(including all or a portion of its Commitment or the Term Loans owing to such
Lender); provided, however, (i) no such consent by the Borrower shall be
required in the case of any assignment to another Lender or any affiliate of
such Lender or another Lender and no such consent by the Agent shall be
required in the case of any assignment by a Lender to any affiliate of such
Lender; (ii) unless the Borrower and the Agent otherwise agree, after
giving effect to any partial assignment by a Lender, the Assignee shall hold,
and the assigning Lender shall retain, a Commitment, or Term Loans having an
outstanding principal balance, of at least $5,000,000; and (iii) each such
assignment shall be effected by means of an Assignment and Acceptance
Agreement.  Upon execution and delivery
of such instrument and payment by such Assignee to such transferor Lender of an
amount equal to the purchase price agreed between such transferor Lender and
such 


 


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Assignee, such Assignee
shall be a Lender party to this Agreement with respect to the assigned interest
as of the effective date of the Assignment and Acceptance Agreement and shall
have all the rights and obligations of a Lender with respect to the assigned
interest as set forth in such Assignment and Acceptance Agreement, and the
transferor Lender shall be released from its obligations hereunder with respect
to the assigned interest to a corresponding extent, and no further consent or
action by any party shall be required. 
Upon the consummation of any assignment pursuant to this subsection, the
transferor Lender, the Agent and the Borrower shall make appropriate
arrangements so that new Notes are issued to the Assignee and such transferor
Lender, as appropriate.  In connection
with any such assignment, the transferor Lender shall pay to the Agent an
administrative fee for processing such assignment in the amount of $3,500.


 


(e)           The Agent shall maintain at the
Principal Office a copy of each Assignment and Acceptance Agreement delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Lenders the Commitments, and the Term Loans of each Lender
from time to time (the “Register”).  The
Agent shall give each Lender and the Borrower notice of the assignment by any
Lender of its rights as contemplated by this Section.  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 and copies of each Assignment and Acceptance Agreement shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice to the Agent.  Upon its receipt of an Assignment and
Acceptance Agreement executed by an assigning Lender, together with each Note
subject to such assignment, the Agent shall, if such Assignment and Acceptance
Agreement has been completed and if the Agent receives the processing and
recording fee described in subsection (d) above, (i) accept such
Assignment and Acceptance Agreement, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the
Borrower.


 


(f)            In addition to the assignments and
participations permitted under the foregoing provisions of this Section, any
Lender may assign and pledge all or any portion of its Loans and its Notes to
any Federal Reserve Bank as collateral security pursuant to Regulation A and
any Operating Circular issued by such Federal Reserve Bank, and such Loans and
Notes shall be fully transferable as provided therein.  No such assignment shall release the
assigning Lender from its obligations hereunder.


 


(g)           A Lender may furnish any information
concerning the Borrower, any other Loan Party or any of their respective
Subsidiaries in the possession of such Lender from time to time to Assignees and
Participants (including prospective Assignees and Participants) subject to
compliance with Section 12.8.


 


(h)           Anything in this Section to the
contrary notwithstanding, no Lender may assign or participate any interest in
any Loan held by it hereunder to the Borrower, any other Loan Party or any of
their respective Affiliates or Subsidiaries.


 


(i)            Each Lender agrees that, without the
prior written consent of the Borrower and the Agent, it will not make any
assignment hereunder in any manner or under any circumstances that would
require registration or qualification of, or filings in respect of, any Loan or
Note under 


 


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the Securities Act or any other securities laws of the United States of
America or of any other jurisdiction.


 


Section 12.6.  Amendments.


 


(a)           Except as otherwise expressly
provided in this Agreement, any consent or approval required or permitted by
this Agreement or any other Loan Document to be given by the Lenders may be
given, and any term of this Agreement or of any other Loan Document may be
amended, and the performance or observance by the Borrower or any other Loan
Party or any Subsidiary of any terms of this Agreement or such other Loan
Document 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 an amendment to any Loan Document, the written consent
of each Loan Party a party thereto).


 


(b)           Notwithstanding the foregoing,
without the prior written consent of each Lender adversely affected thereby, no
amendment, waiver or consent shall do any of the following:


 


(i)            increase
the Commitment of a Lender, change the principal amount of a Term Loan, or
subject a Lender to any additional obligations;


 


(ii)           reduce
the principal of, or interest rates that have accrued or that will be charged
on the outstanding principal amount of, any Loans or other Obligations;


 


(iii)          reduce
the amount of any Fees payable hereunder or postpone any date fixed for payment
thereof;


 


(iv)          modify
the definition of the term “Termination Date” (except as contemplated under Section 2.9.)
or otherwise postpone any date fixed for any payment of any principal of, or
interest on, any Loans or any other Obligations (including the waiver of any
Default or Event of Default as a result of the nonpayment of any such
Obligations as and when due);


 


(v)           amend
or otherwise modify the provisions of Section 3.2.;


 


(vi)          modify
the definition of the term “Requisite Lenders” or otherwise modify in any other
manner the number or percentage of the Lenders required to make any
determinations or waive any rights hereunder or to modify any provision hereof,
including without limitation, any modification of this Section 12.6. if
such modification would have such effect; or


 


(vii)         release
any Guarantor from its obligations under the Guaranty (except as otherwise
permitted under Section 7.12.(b)).


 


(c)           No amendment, waiver or consent,
other than under Section 11.8., unless in writing and signed by the Agent,
in such capacity, in addition to the Lenders required 


 


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hereinabove to take such action, shall affect the rights or duties of
the Agent under this Agreement or any of the other Loan Documents.


 


(d)           No waiver shall extend to or affect
any obligation not expressly waived or impair any right consequent thereon and
any amendment, waiver or consent shall be effective only in the specific
instance and for the specific purpose set forth therein.  Except as otherwise provided in Section 11.5.,
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.  Any Event of Default occurring hereunder shall
continue to exist until such time as such Event of Default is waived in writing
in accordance with the terms of this Section, notwithstanding any attempted cure
or other action by the Borrower, any other Loan Party or any other Person
subsequent to the occurrence of such Event of Default.  Except as otherwise explicitly provided for
herein or in any other Loan Document, no notice to or demand upon the Borrower
shall entitle the Borrower to any other or further notice or demand in similar
or other circumstances.


 


Section 12.7.  Nonliability of Agent and Lenders.


 


The
relationship between the Borrower and the Lenders and the Agent shall be solely
that of borrower and lender.  Neither the
Agent nor any Lender shall have any fiduciary responsibilities to the Borrower
and no provision in this Agreement or in any of the other Loan Documents, and
no course of dealing between or among any of the parties hereto, shall be
deemed to create any fiduciary duty owing by the Agent or any Lender to any
Lender, the Borrower, any Subsidiary or any other Loan Party.  Neither the Agent nor any Lender undertakes
any responsibility to the Borrower to review or inform the Borrower of any
matter in connection with any phase of the Borrower’s business or operations.


 


Section 12.8.  Confidentiality.


 


The Agent and each Lender shall use reasonable efforts
to assure that information about Borrower, the other Loan Parties and other
Subsidiaries, and the Properties thereof and their operations, affairs and
financial condition, not generally disclosed to the public, which is furnished
to the Agent or any Lender pursuant to the provisions of this Agreement or any
other Loan Document shall not be divulged to any Person other than the Agent,
the Lenders, and their respective agents who are actively and directly
participating in the evaluation, administration or enforcement of the Loan
Documents and other transactions between the Agent or such Lender, as
applicable, and the Borrower, but in any event the Agent and the Lenders may
make disclosure: (a) to any of their respective affiliates (provided they
shall agree to keep such information confidential in accordance with the terms
of this Section 12.8.); (b) as reasonably requested by any potential
or actual Assignee, Participant or other transferee in connection with the
contemplated transfer of any Commitment or Term Loan or participations therein
as permitted hereunder (provided they shall agree to keep such information
confidential in accordance with the terms of this Section); (c) as
required or requested by any Governmental Authority or representative thereof
or pursuant to legal process or in connection with any legal proceedings or as
otherwise required by Applicable Law; (d) to the Agent’s or such Lender’s
independent auditors and other professional advisors (provided they shall be
notified of the confidential nature of the information); (e) after the
happening and during the continuance of an Event of Default, to any other
Person, in connection with the exercise by the Agent or the 


 


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Lenders of rights
hereunder or under any of the other Loan Documents; (f) upon Borrower’s
prior consent (which consent shall not be unreasonably withheld), to any
contractual counter-parties to any swap or similar hedging agreement or to any
rating agency; and (g) to the extent such information (x) becomes
publicly available other than as a result of a breach of this Section actually
known to such Lender to be such a breach or (y) becomes available to the
Agent or any Lender on a non-confidential basis from a source other than the
Borrower or any Affiliate.


 


Section 12.9.  Indemnification.


 


(a)           The Borrower shall and hereby agrees
to indemnify, defend and hold harmless the Agent, each of the Lenders, any
affiliate of the Agent or any Lender, and their respective directors, officers,
shareholders, agents, employees and counsel (each referred to herein as an “Indemnified
Party”) from and against any and all of the following (collectively, the “Indemnified
Costs”):  losses, costs, claims, damages,
liabilities, deficiencies, judgments or reasonable expenses of every kind and
nature (including, without limitation, amounts paid in settlement, court costs
and the reasonable fees and disbursements of counsel incurred in connection
with any litigation, investigation, claim or proceeding or any advice rendered
in connection therewith, but excluding losses, costs, claims, damages, liabilities,
deficiencies, judgments or expenses indemnification in respect of which is
specifically covered by Section 3.12. or 4.1. or expressly excluded from the
coverage of Section 3.12. or 4.1.) incurred by an Indemnified Party in
connection with, arising out of, or by reason of, any suit, cause of action,
claim, arbitration, investigation or settlement, consent decree or other
proceeding (the foregoing referred to herein as an “Indemnity Proceeding”)
which is in any way related directly or indirectly to: (i) this Agreement or
any other Loan Document or the transactions contemplated thereby; (ii) the
making of any Loans hereunder; (iii) any actual or proposed use by the Borrower
of the proceeds of the Loans; (iv) the Agent’s or any Lender’s entering into
this Agreement; (v) the fact that the Agent and the Lenders have established
the credit facility evidenced hereby in favor of the Borrower; (vi) the fact
that the Agent and the Lenders are creditors of the Borrower and have or are
alleged to have information regarding the financial condition, strategic plans
or business operations of the Borrower and the Subsidiaries; (vii) the fact
that the Agent and the Lenders are material creditors of the Borrower and are
alleged to influence directly or indirectly the business decisions or affairs
of the Borrower and the Subsidiaries or their financial condition; (viii) the
exercise of any right or remedy the Agent or the Lenders may have under this
Agreement or the other Loan Documents; (ix) any civil penalty or fine assessed
by the OFAC against, and all reasonable costs and expenses (including counsel
fees and disbursements) incurred in connection with defense thereof, by the
Agent or any Lender as a result of conduct of the Borrower, any other Loan
Party or any Subsidiary that violates a sanction enforced by the OFAC; or (x)
any violation or non-compliance by the Borrower or any Subsidiary of any
Applicable Law (including any Environmental Law) including, but not limited to,
any Indemnity Proceeding commenced by (A) the Internal Revenue Service or state
taxing authority or (B) any Governmental Authority or other Person under any
Environmental Law, including any Indemnity Proceeding commenced by a
Governmental Authority or other Person seeking remedial or other action to
cause the Borrower or its Subsidiaries (or its respective properties) (or the
Agent and/or the Lenders as successors to the Borrower) to be in compliance
with such Environmental Laws; provided, however, that the Borrower shall not be
obligated to indemnify any Indemnified Party for (A) any acts or omissions of
such Indemnified Party in connection with matters described in this subsection
to the extent arising from the gross negligence or willful misconduct of such


 


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Indemnified Party, as determined by a court of competent jurisdiction
in a final, non-appealable judgment or (B) Indemnified Costs to the extent
arising directly out of or resulting directly from claims of one or more
Indemnified Parties against another Indemnified Party.


 


(b)           The Borrower’s indemnification
obligations under this Section 12.9. shall apply to all Indemnity
Proceedings arising out of, or related to, the foregoing whether or not an
Indemnified Party is a named party in such Indemnity Proceeding.  In this regard, this indemnification shall
cover all Indemnified Costs of any Indemnified Party in connection with any
deposition of any Indemnified Party or compliance with any subpoena (including
any subpoena requesting the production of documents).  This indemnification shall, among other
things, apply to any Indemnity Proceeding commenced by other creditors of the
Borrower or any Subsidiary, any shareholder of the Borrower or any Subsidiary
(whether such shareholder(s) are prosecuting such Indemnity Proceeding in their
individual capacity or derivatively on behalf of the Borrower), any account
debtor of the Borrower or any Subsidiary or by any Governmental Authority. If
indemnification is to be sought hereunder by an Indemnified Party, then such
Indemnified Party shall notify the Borrower of the commencement of any
Indemnity Proceeding; provided, however, that the failure to so notify the
Borrower shall not relieve the Borrower from any liability that it may have to
such Indemnified Party pursuant to this Section 12.9.


 


(c)           This indemnification shall apply to
any Indemnity Proceeding arising during the pendency of any bankruptcy
proceeding filed by or against the Borrower and/or any Subsidiary.


 


(d)           All out-of-pocket fees and expenses
of, and all amounts paid to third-persons by, an Indemnified Party shall be
advanced by the Borrower at the request of such Indemnified Party
notwithstanding any claim or assertion by the Borrower that such Indemnified
Party is not entitled to indemnification hereunder, upon receipt of an
undertaking by such Indemnified Party that such Indemnified Party will
reimburse the Borrower if it is actually and finally determined by a court of
competent jurisdiction that such Indemnified Party is not so entitled to indemnification
hereunder.


 


(e)           An Indemnified Party may conduct its
own investigation and defense of, and may formulate its own strategy with
respect to, any Indemnity Proceeding covered by this Section and, as
provided above, all Indemnified Costs incurred by such Indemnified Party shall
be reimbursed by the Borrower.  No action
taken by legal counsel chosen by an Indemnified Party in investigating or
defending against any such Indemnity Proceeding shall vitiate or in any way
impair the obligations and duties of the Borrower hereunder to indemnify and
hold harmless each such Indemnified Party; provided, however, that if (i) the
Borrower is required to indemnify an Indemnified Party pursuant hereto and (ii) the
Borrower has provided evidence reasonably satisfactory to such Indemnified
Party that the Borrower has the financial wherewithal to reimburse such
Indemnified Party for any amount paid by such Indemnified Party with respect to
such Indemnity Proceeding, such Indemnified Party shall not settle or compromise
any such Indemnity Proceeding without the prior written consent of the Borrower
(which consent shall not be unreasonably withheld or delayed). Notwithstanding
the foregoing, an Indemnified Party may settle or compromise any such Indemnity
Proceeding without the prior written consent of the Borrower where (x) no
monetary relief is sought against such Indemnified Party in such 


 


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Indemnity Proceeding or (y) there is an allegation of a violation
of law by such Indemnified Party.


 


(f)            If and to the extent that the
obligations of the Borrower under this Section are unenforceable for any
reason, the Borrower hereby agrees to make the maximum contribution to the
payment and satisfaction of such obligations which is permissible under
Applicable Law.


 


(g)           The Borrower’s obligations under this
Section shall survive any termination of this Agreement and the other Loan
Documents and the payment in full in cash of the Obligations, and are in
addition to, and not in substitution of, any other of their obligations set
forth in this Agreement or any other Loan Document to which it is a party.


 


Section 12.10.  Termination; Survival.


 


At
such time as (a) all of the Commitments have been reduced to zero or
otherwise terminated and (b) all Obligations (other than obligations which
survive as provided in the following sentence) have been paid and satisfied in
full, this Agreement shall terminate. 
The indemnities to which the Agent and the Lenders are entitled under
the provisions of Sections 3.12., 4.1., 4.4., 11.7., 12.2. and 12.9. and
any other provision of this Agreement and the other Loan Documents, and the
provisions of Section 12.4., shall continue in full force and effect and
shall protect the Agent and the Lenders (i) notwithstanding any
termination of this Agreement, or of the other Loan Documents, against events
arising after such termination as well as before and (ii) at all times
after any such party ceases to be a party to this Agreement with respect to all
matters and events existing on or prior to the date such party ceased to be a
party to this Agreement.


 


Section 12.11.  Severability of Provisions.


 


Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unenforceability without invalidating the remainder of
such provision or the remaining provisions or affecting the validity or
enforceability of such provision in any other jurisdiction.


 


Section 12.12.  GOVERNING LAW.


 


THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE.


 


Section 12.13.  Patriot Act.


 


The
Lenders and the Agent each hereby notifies the Borrower that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)), it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name
and address of the Borrower and other information that will allow such Lender
or the Agent, as applicable, to identify the Borrower in accordance with such
Act.


 


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Section 12.14.  Counterparts.


 


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


 


Section 12.15.  Obligations with Respect to Loan Parties.


 


The
obligations of the Borrower to direct or prohibit the taking of certain actions
by the other Loan Parties as specified herein shall be absolute and not subject
to any defense the Borrower may have that the Borrower does not control such
Loan Parties.


 


Section 12.16.  Limitation of Liability.


 


Neither
the Agent nor any Lender, nor any affiliate, officer, director, employee,
attorney, or agent of the Agent or any Lender shall have any liability with
respect to, and the Borrower hereby waives, releases, and agrees not to sue any
of them upon, any claim for any special, indirect, incidental, or consequential
damages suffered or incurred by the Borrower in connection with, arising out
of, or in any way related to, this Agreement or any of the other Loan
Documents, or any of the transactions contemplated by this Agreement or any of
the other Loan Documents.  The Borrower
hereby waives, releases, and agrees not to sue the Agent or any Lender or any
of the Agent’s or any Lender’s affiliates, officers, directors, employees,
attorneys, or agents for punitive damages in respect of any claim in connection
with, arising out of, or in any way related to, this Agreement or any of the
other Loan Documents, or any of the transactions contemplated by this Agreement
or financed hereby.


 


Section 12.17.  Entire Agreement.


 


This
Agreement, the Notes, and the other Loan Documents referred to herein embody
the final, entire agreement among the parties hereto and supersede any and all
prior commitments, agreements, representations, and understandings, whether
written or oral, relating to the subject matter hereof and thereof and may not
be contradicted or varied by evidence of prior, contemporaneous, or subsequent
oral agreements or discussions of the parties hereto.  There are no oral agreements among the
parties hereto.


 


Section 12.18.  Construction.


 


The Agent, the Borrower and each Lender acknowledge
that each of them has had the opportunity to engage legal counsel of its own
choice and has been afforded an opportunity to review this Agreement and the
other Loan Documents with legal counsel and that this Agreement and the other
Loan Documents shall be construed as if jointly drafted by the Agent, the
Borrower and each Lender.


 


[Signatures on Following Pages]


 


79





















 


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


 


 


	
   

  	
  HERITAGE
  PROPERTY INVESTMENT TRUST, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
    

  	
  By:

  	
    /s/Patrick H. O’Sullivan

  	
   

  
	
   

  	
   

  	
  Name:  Patrick H. O’Sullivan

  
	
   

  	
   

  	
  Title:  Vice President

  



 


[Signatures Continued on Next Page]


 


80





















 


[Signature Page to Credit Agreement dated as
of


November 28, 2005 with Heritage Property
Investment Trust, Inc.]


 


WACHOVIA INVESTMENT HOLDINGS, LLC, as Agent and as a
Lender


 


	
   

  	
   

  
	
   

  	
  By:

  	
    /s/David Blackman

  	
   

  
	
   

  	
   

  	
  Name:  David Blackman

  
	
   

  	
   

  	
  Title:  Managing Director

  



 


Commitment
Amount:


 


$100,000,000


 


Lending Office (all Types of Loans):


 


Wachovia
Investment Holdings, LLC


171
17th Street, 6th Floor


Atlanta,
Georgia 30363


Attn:  Cathy Casey


Telephone:    (404) 214-6335


Telecopy:      (404) 214-5493


 


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EXHIBIT A


 


FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT


 


THIS
ASSIGNMENT AND ACCEPTANCE AGREEMENT dated as of             ,
200   (the “Agreement”) by and among                           
(the “Assignor”),                           
(the “Assignee”), and WACHOVIA INVESTMENT
HOLDINGS, LLC, as Agent (the “Agent”).


 


WHEREAS,
the Assignor is a Lender under that certain Term Note Agreement dated as of November 28, 2005 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”),
by and among Heritage Property Investment Trust, Inc.
(the “Borrower”), the financial institutions party thereto and their assignees
under Section 12.5. thereof (the “Lenders”), the Agent, and the other
parties thereto;


 


WHEREAS,
the Assignor desires to assign to the Assignee, among other things, all or a
portion of the Assignor’s [Commitment and] Term Loans under the Credit Agreement,
all on the terms and conditions set forth herein; and


 


WHEREAS,
the Agent consents to such assignment on the terms and conditions set forth
herein;


 


NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which hereby are acknowledged by the parties hereto, the parties hereto hereby
agree as follows:


 


Section 1.  Assignment.


 


(a)           Subject to the terms and conditions
of this Agreement and in consideration of the payment to be made by the
Assignee to the Assignor pursuant to Section 2 of this Agreement,
effective as of              ,
200   (the “Assignment Date”), the Assignor hereby irrevocably sells,
transfers and assigns to the Assignee, without recourse, [a $           
interest in and to the Assignor’s Commitment and] a $           
interest in and to the Assignor’s Term Loans (such interest[s] being
[collectively referred to as] the “Assigned Interest”) and all of the other
rights and obligations of the Assignor under the Credit Agreement, the Assignor’s
Note and the other Loan Documents (representing            %
in respect of the aggregate amount of all Lenders’ [Commitment and] Term Loans)
and all voting rights of the Assignor associated with the Assigned Interest,
all rights to receive interest on the amount of the Term Loans assigned hereby
and all facility and other Fees with respect to the Assigned Interest and other
rights of the Assignor under the Credit Agreement and the other Loan Documents
with respect to the Assigned Interest. 
The Assignee, subject to the terms and conditions hereof, hereby assumes
all obligations of the Assignor as a Lender with respect to the Assigned
Interest, which obligations shall include, but shall not be limited to, the
obligation to indemnify the Agent as provided in the Credit Agreement (the
foregoing enumerated obligations, together with all other similar obligations
more particularly set forth in the Credit Agreement and the other Loan
Documents, collectively, the “Assigned Obligations”).  The Assignor shall have no further duties or 


 


A-1





















 


obligations with respect to, and shall have no further interest in, the
Assigned Obligations or the Assigned Interest from and after the Assignment
Date.


 


(b)           The assignment by the Assignor to the
Assignee hereunder is without recourse to the Assignor.  The Assignee makes and confirms to the Agent,
the Assignor, and the other Lenders all of the representations, warranties and
covenants of a Lender under Article XI. of the Credit Agreement.  Not in limitation of the foregoing, the
Assignee acknowledges and agrees that, except as set forth in Section 4
below, the Assignor is making no representations or warranties with respect to,
and the Assignee hereby releases and discharges the Assignor for any responsibility
or liability for: (i) the present or future solvency or financial
condition of the Borrower, any Subsidiary or any other Loan Party, (ii) any
representations, warranties, statements or information made or furnished by the
Borrower, any Subsidiary or any other Loan Party in connection with the Credit
Agreement or otherwise, (iii) the validity, efficacy, sufficiency, or
enforceability of the Credit Agreement, any other Loan Document or any other
document or instrument executed in connection therewith, or the collectibility
of the Assigned Obligations, (iv) the perfection, priority or validity of
any Lien with respect to any collateral at any time securing the Obligations or
the Assigned Obligations under the Notes or the Credit Agreement and (v) the
performance or failure to perform by the Borrower or any other Loan Party of
any obligation under the Credit Agreement or any other Loan Document to which
it is a party.  Further, the Assignee
acknowledges that it has, independently and without reliance upon the Agent, or
any affiliate or subsidiary thereof, the Assignor or any other Lender and based
on the financial statements supplied by the Borrower and such other documents
and information as it has deemed appropriate, made its own credit and legal
analysis and decision to become a Lender under the Credit Agreement.  The Assignee also acknowledges that it will,
independently and without reliance upon the Agent, the Assignor 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 the Credit Agreement or any other Loan Documents or pursuant to
any other obligation.  Except as
expressly provided in the Credit Agreement, the Agent shall have no duty or
responsibility whatsoever, either initially or on a continuing basis, to
provide the Assignee with any credit or other information with respect to the
Borrower or any other Loan Party or to notify the Assignee of any Default or
Event of Default.  The Assignee has not
relied on the Agent as to any legal or factual matter in connection therewith
or in connection with the transactions contemplated thereunder.


 


Section 2.  Payment by Assignee.  In consideration of the assignment made
pursuant to Section 1 of this Agreement, the Assignee agrees to pay to the
Assignor on the Assignment Date, such amount as they may agree.


 


Section 3.  Payments by Assignor.  The Assignor agrees to pay to the Agent on
the Assignment Date the administration fee, if any, payable under the
applicable provisions of the Credit Agreement.


 


Section 4.  Representations and Warranties of Assignor.  The Assignor hereby represents and warrants
to the Assignee that (a) as of the Assignment Date the Assignor is a
Lender under the Credit Agreement [having a Commitment of $           
and] holding Term Loans under the Credit Agreement ([in each case] without
reduction by any assignments thereof which have 


 


A-2





















 


not yet become effective) with an outstanding principal balance equal
to $           , and
that the Assignor is not in default of its obligations under the Credit
Agreement; and (b) it is the legal and beneficial owner of the Assigned
Interest, which is free and clear of any adverse claim created by the Assignor.


 


Section 5.  Representations, Warranties and Agreements
of Assignee.  The Assignee (a) represents
and warrants that it is (i) legally authorized to enter into this
Agreement, (ii) an “accredited investor” (as such term is used in
Regulation D of the Securities Act) and (iii) an Eligible Assignee; (b) confirms
that it has received a copy of the Credit Agreement, together with copies of
the most recent financial statements delivered in connection therewith or
pursuant thereto and such other documents and information (including without
limitation the Loan Documents) as it has deemed appropriate to make its own
credit analysis and decision to enter into this Agreement; (c) appoints
and authorizes the Agent to take such action as contractual representative on
its behalf and to exercise such powers under the Loan Documents as are
delegated to the Agent by the terms thereof together with such powers as are
reasonably incidental thereto; and (d) agrees that, if not already a Lender
and to the extent of the Assigned Interest, it will become a party to and shall
be bound by the Credit Agreement and the other Loan Documents to which the
other Lenders are a party on the Assignment Date and will perform in accordance
therewith all of the obligations which are required to be performed by it as a
Lender with respect to the Assigned Interest.


 


Section 6.  Recording and Acknowledgment by the Agent.  Following the execution of this Agreement,
the Assignor will deliver to the Agent (a) a duly executed copy of this
Agreement for acknowledgment and recording by the Agent and (b) the
Assignor’s Term Note.  Upon such
acknowledgment and recording, from and after the Assignment Date, the Agent
shall make all payments in respect of the interest assigned hereby (including
payments of principal, interest, Fees and other amounts) to the Assignee.  The Assignor and Assignee shall make all
appropriate adjustments in payments under the Credit Agreement for periods prior
to the Assignment Date directly between themselves.


 


Section 7.  Addresses.  The Assignee specifies as its address for
notices and its Lending Office for all Loans, the offices set forth on Schedule 1
attached hereto.


 


Section 8.  Payment Instructions.  All payments to be made to the Assignee under
this Agreement by the Assignor, and all payments to be made to the Assignee
under the Credit Agreement, shall be made as provided in the Credit Agreement
in accordance with the instructions set forth on Schedule 1 attached
hereto or as the Assignee may otherwise notify the Agent.


 


Section 9.  Effectiveness of Assignment.  This Agreement, and the assignment and
assumption contemplated herein, shall not be effective until (a) this
Agreement is executed and delivered by each of the Assignor, the Assignee, the
Agent, and if required under Section 12.5.(d) of the Credit
Agreement, the Borrower, and (b) the payment to the Assignor of the
amounts, if any, owing by the Assignee pursuant to Section 2 hereof and (c) the
payment to the Agent of the amounts, if any, owing by the Assignor pursuant to Section 3
hereof.  Upon recording and
acknowledgment of this Agreement by the Agent, from and after the Assignment 


 


A-3





















 


Date, (i) the Assignee shall be a party to the Credit Agreement
with respect to the Assigned Interest and have the rights and obligations of a
Lender thereunder to the extent of the Assigned Interest and (ii) the
Assignor shall relinquish its rights (except as otherwise provided in Section 12.10.
of the Credit Agreement) and be released from its obligations under the Credit
Agreement with respect to the Assigned Interest; provided, however, that if the
Assignor does not assign its entire interest under the Loan Documents, it shall
remain a Lender entitled to all of the benefits and subject to all of the
obligations thereunder with respect to its [Commitment and] Term Loans.


 


Section 10.  Governing Law.  THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.


 


Section 11.
 Counterparts.  This Agreement may be executed in any number
of counterparts each of which, when taken together, shall constitute one and
the same agreement.


 


Section 12.  Headings.  Section headings have been inserted
herein for convenience only and shall not be construed to be a part hereof.


 


Section 13.  Amendments; Waivers.  This Agreement may not be amended, changed,
waived or modified except by a writing executed by the Assignee and the
Assignor; provided, however, any amendment, waiver or consent which shall
affect the rights or duties of the Agent under this Agreement shall not be
effective unless signed by the Agent.


 


Section 14.  Entire Agreement.  This Agreement embodies the entire agreement
between the Assignor and the Assignee with respect to the subject matter hereof
and supersedes all other prior arrangements and understandings relating to the
subject matter hereof.


 


Section 15.  Binding Effect.  This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.


 


Section 16.  Definitions.  Terms not otherwise defined herein are used
herein with the respective meanings given them in the Credit Agreement.


 


[Include this Section only if Borrower’s consent is required under
Section 12.5.(d) of the Credit Agreement.]


 


[Section 17.  Agreements of the Borrower.  The Borrower hereby agrees that the Assignee
shall be a Lender under the Credit Agreement [having a Commitment and] holding
Term Loans equal to the amount[s] set forth in Section 1(a) above.  The Borrower agrees that the Assignee shall
have all of the rights and remedies of a Lender under the Credit Agreement and
the other Loan Documents, including, but not limited to, the right of a Lender
to receive payments of principal and interest with respect to the Assigned
Obligations, and to receive the facility and other Fees payable to the Lenders
as provided in the Credit Agreement. 
Further, the Assignee shall be entitled to the indemnification
provisions from the Borrower in favor of the Lenders as provided in the Credit
Agreement and the other Loan Documents. 
The Borrower 


 


A-4





















 


further agrees, upon the execution and delivery of this Agreement, to
execute in favor of the Assignee and, if applicable, the Assignor Notes as
required by Section 12.5.(d) of the Credit Agreement.  Upon receipt by the Assignor of the amounts
due the Assignor under Section 2, the Assignor agrees to surrender to the
Borrower the Assignor’s Note.]


 


[Signatures on Following Pages]


 


A-5





















 


IN WITNESS WHEREOF, the parties hereto have duly
executed this Assignment and Acceptance Agreement as of the date and year first
written above.


 


	
   

  	
  ASSIGNOR:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [NAME OF
  ASSIGNOR]

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ASSIGNEE:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [NAME OF
  ASSIGNEE]

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
								



 


Accepted as of the date first written above.


 


AGENT:


 


WACHOVIA INVESTMENT HOLDINGS, LLC,
as Agent


 


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
					



 


[Signatures Continued on Following Page]


 


A-6





















 


[Include signature of the
Borrower only if required under Section 12.5.(d) of the Credit
Agreement]


 


Agreed and consented to as of the date first written
above.


 


BORROWER:


 


HERITAGE PROPERTY
INVESTMENT TRUST, INC.


 


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
					



 


A-7





















 


SCHEDULE 1


 


Information Concerning the Assignee


 


	
  Notice Address:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Telephone No.:

  	
   

  	
   

  
	
   

  	
   

  	
  Telecopy No.:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Lending Office:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Telephone No.:

  	
   

  	
   

  
	
   

  	
   

  	
  Telecopy No.:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Payment Instructions:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
							



 


A-8





















 


EXHIBIT B


 


FORM OF NOTICE OF CONTINUATION


 


             ,
200  


 


Wachovia
Investment Holdings, LLC, as Agent


One Wachovia Center


301 South College Street


Mail Code:  NC0166


Charlotte, North
Carolina  28288-0166


Attention:  


 


Ladies and Gentlemen:


 


Reference
is made to that certain Term Loan Agreement dated as of November 28, 2005 (as amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”), by and among Heritage Property Investment Trust, Inc.
(the “Borrower”), the financial institutions party thereto and their assignees
under Section 12.5. thereof (the “Lenders”), Wachovia Investment Holdings, LLC, as Agent (the “Agent”), and the
other parties thereto.  Capitalized terms
used herein, and not otherwise defined herein, have their respective meanings
given them in the Credit Agreement.


 


Pursuant
to Section 2.6. of the Credit Agreement, the Borrower hereby requests a
Continuation of a borrowing of Loans under the Credit Agreement, and in that
connection sets forth below the information relating to such Continuation as
required by such Section of the Credit Agreement:


 


1.                                       The
proposed date of such Continuation is              ,
200   .


 


2.                                       The
aggregate principal amount of Loans subject to the requested Continuation is $                         .


 


3.                                       The
portion of such principal amount subject to such Continuation is $                         
and was originally borrowed on            ,
200  .


 


4.                                       The
current Interest Period for each of the Loans subject to such Continuation ends
on                  ,
200  .


 


5.                                       The
duration of the new Interest Period for each of such Loans or portion thereof
subject to such Continuation is:


 


	
   

  	
  [Check
  one box only]

  	
  o  1
  month

  	
   

  
	
   

  	
   

  	
  o  2
  months

  	
   

  
	
   

  	
   

  	
  o  3
  months

  	
   

  



 


B-1





















 


The
Borrower hereby certifies to the Agent and the Lenders that as of the date
hereof, as of the proposed date of the requested Continuation, and after giving
effect to such Continuation, no Default or Event of Default exists or will
exist.


 


If
notice of the requested Continuation was given previously by telephone, this
notice is to be considered the written confirmation of such telephone notice
required by Section 2.6. of the Credit Agreement.


 


IN
WITNESS WHEREOF, the undersigned has duly executed and delivered this Notice of
Continuation as of the date first written above.


 


	
   

  	
  HERITAGE
  PROPERTY INVESTMENT TRUST, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
    

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
						



 


B-2





















 


EXHIBIT C


 


FORM OF NOTICE OF CONVERSION


 


             ,
200  


 


Wachovia
Investment Holdings, LLC, as Agent


One Wachovia Center


301 South College Street


Mail Code:  NC0166


Charlotte, North
Carolina  28288-0166


Attention:  


 


Ladies and Gentlemen:


 


Reference
is made to that certain Credit Agreement dated as of November 28, 2005 (as amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”), by and among Heritage Property Investment Trust, Inc.
(the “Borrower”), the financial institutions party thereto and their assignees
under Section 12.5. thereof (the “Lenders”), Wachovia Investment Holdings, LLC, as Agent (the “Agent”), and the
other parties thereto.  Capitalized terms
used herein, and not otherwise defined herein, have their respective meanings
given them in the Credit Agreement.


 


Pursuant
to Section 2.7. of the Credit Agreement, the Borrower hereby requests a
Conversion of a borrowing of Loans of one Type into Loans of another Type under
the Credit Agreement, and in that connection sets forth below the information
relating to such Conversion as required by such Section of the Credit
Agreement:


 


1.                                       The
proposed date of such Conversion is                ,
200  .


 


2.                                       The
Loans to be Converted pursuant hereto are currently:


 


	
  [Check one box only]

  	
  o  Base
  Rate Loans

  	
   

  
	
   

  	
  o  LIBOR
  Loans

  	
   

  



 


3.                                       The
aggregate principal amount of Loans subject to the requested Conversion is $                      
and was originally borrowed on            ,
200  .


 


4.                                       The
portion of such principal amount subject to such Conversion is $                    .


 


C-1





















 


5.                                       The
amount of such Loans to be so Converted is to be converted into Loans of the
following Type:


 


[Check one box only]


 


o  Base
Rate Loans


o  LIBOR
Loans, each with an initial Interest Period for a duration of:


 


	
  [Check one box only]

  	
  o  1
  month

  
	
   

  	
  o  2
  months

  
	
   

  	
  o  3
  months

  



 


The Borrower hereby certifies to the Agent and the
Lenders that as of the date hereof and as of the date of the requested
Conversion and after giving effect thereto, (a) no Default or Event of
Default exists or will exist (provided the certification under this
clause (a) shall not be made in connection with the Conversion of a
Loan into a Base Rate Loan), and (b) the representations and warranties
made or deemed made by the Borrower and each other Loan Party in the Loan
Documents to which any of them is a party are and shall be true and correct in
all material respects, except to the extent that such representations and warranties
expressly relate solely to an earlier date (in which case such representations
and warranties shall have been true and correct on and as of such earlier date)
and except for changes in factual circumstances not prohibited under the Loan
Documents.


 


If
notice of the requested Conversion was given previously by telephone, this
notice is to be considered the written confirmation of such telephone notice
required by Section 2.7. of the Credit Agreement.


 


IN
WITNESS WHEREOF, the undersigned has duly executed and delivered this Notice of
Conversion as of the date first written above.


 


	
   

  	
  HERITAGE
  PROPERTY INVESTMENT TRUST, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
    

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
						



 


C-2





















 


EXHIBIT D


 


FORM OF NOTE


 


	
  $                   

  	
                   ,
  200   

  



 


FOR
VALUE RECEIVED, the undersigned, HERITAGE PROPERTY INVESTMENT TRUST, INC., a
corporation formed under the laws of the State of Maryland (the “Borrower”),
hereby promises to pay to the order of                     
(the “Lender”), in care of Wachovia Investment
Holdings, LLC, as Agent (the “Agent”), at Wachovia Investment Holdings, LLC, One Wachovia Center, 301 South
College Street, Charlotte, North Carolina 28288, or at such other address as
may be specified in writing by the Agent to the Borrower, the principal sum of                 
AND     /100 DOLLARS ($            )
(or such lesser amount as shall equal the aggregate unpaid principal amount of
the Term Loans made by the Lender to the Borrower under the Credit Agreement
(as herein defined)), on the dates and in the principal amounts provided in the
Credit Agreement, and to pay interest on the unpaid principal amount owing
hereunder, at the rates and on the dates provided in the Credit Agreement.


 


The
date and amount of the Term Loans made by the Lender to the Borrower, and each
payment made on account of the principal thereof, shall be recorded by the
Lender on its books and, prior to any transfer of this Note, endorsed by the
Lender on the schedule attached hereto or any continuation thereof,
provided that the failure of the Lender to make any such recordation or
endorsement shall not affect the obligations of the Borrower to make a payment
when due of any amount owing under the Credit Agreement or hereunder.


 


This
Note is one of the Notes referred to in the Credit Agreement dated as of November 28, 2005 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”),
by and among the Borrower, the financial institutions party thereto and their
assignees under Section 12.5. thereof (the “Lenders”), the Agent, and the
other parties thereto.  Capitalized terms
used herein, and not otherwise defined herein, have their respective meanings
given them in the Credit Agreement.


 


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


 


Except
as permitted by Section 12.5.(d) of the Credit Agreement, this Note
may not be assigned by the Lender to any Person.


 


THIS
NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED,
IN SUCH STATE.


 


D-1





















 


The
Borrower hereby waives presentment for payment, demand, notice of demand,
notice of non-payment, protest, notice of protest and all other similar
notices.


 


Time
is of the essence for this Note.


 


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


 


	
   

  	
  HERITAGE
  PROPERTY INVESTMENT TRUST, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
    

  	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
							



 


D-2





















 


SCHEDULE OF
TERM LOANS


 


This Note evidences the Term Loans made under the
within-described Credit Agreement to the Borrower, on the date and in the
principal amount set forth below, subject to the payments and prepayments of
principal set forth below:


 




	
  Date of

  Loan

  	
   

  	
  Principal

  Amount of

  Loan

  	
   

  	
  Amount

  Paid or

  Prepaid

  	
   

  	
  Unpaid

  Principal

  Amount

  	
   

  	
  Notation

  Made By

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  






 


D-3





















 


EXHIBIT E


 


FORM OF OPINION OF COUNSEL


 


[To be Inserted]


 


E-1





















 


EXHIBIT F


 


FORM OF COMPLIANCE CERTIFICATE


 


               ,
200  


 


Wachovia
Investment Holdings, LLC, as Agent


One Wachovia Center


301 South College Street


Mail Code:  NC0166


Charlotte, North
Carolina  28288-0166


 


Each of the Lenders Party to the Credit Agreement
referred to below


 


Ladies and Gentlemen:


 


Reference
is made to that certain Credit Agreement dated as of November 28, 2005 (as amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”), by and among Heritage Property Investment Trust, Inc.
(the “Borrower”), the financial institutions party thereto and their assignees
under Section 12.5. thereof (the “Lenders”), Wachovia Investment Holdings, LLC, as Agent (the “Agent”) and the
other parties thereto.  Capitalized terms
used herein, and not otherwise defined herein, have their respective meanings
given them in the Credit Agreement.


 


Pursuant
to Section 8.3. of the Credit Agreement, the undersigned hereby certifies
to the Agent and the Lenders as follows:


 


(1)                                  The
undersigned is the                      
of the Borrower.


 


(2)                                  The
undersigned has examined the books and records of the Borrower and has
conducted such other examinations and investigations as are reasonably necessary
to provide this Compliance Certificate.


 


(3)                                  No
Default or Event of Default exists [if such is not the case,
specify such Default or Event of Default and its nature, when it occurred and
whether it is continuing and the steps being taken by the Borrower with respect
to such event, condition or failure].


 


(4)                                  The
representations and warranties made or deemed made by the Borrower and the
other Loan Parties in the Loan Documents to which any is a party, are true and
correct in all material respects on and as of the date hereof except to the
extent that such representations and warranties expressly relate solely to an
earlier date (in which case such representations and warranties shall have been
true and correct on and as of such earlier date) and except for changes in
factual circumstances not prohibited under the Loan Documents.


 


F-1





















 


(5)                                  Attached
hereto as Schedule 1 are reasonably detailed calculations establishing
whether or not the Borrower and its Subsidiaries were in compliance with the
covenants contained in Sections 9.1. through 9.3. of the Credit Agreement.


 


IN
WITNESS WHEREOF, the undersigned has executed this certificate as of the date
first above written.


 


 


	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
					



 


F-2





















 


Schedule 1


 


[Calculations to be Attached]


 


F-3





















 


EXHIBIT G


 


FORM OF GUARANTY


 


THIS
GUARANTY dated as of November 28, 2005,
executed and delivered by each of the undersigned and the other Persons from
time to time party hereto pursuant to the execution and delivery of an
Accession Agreement in the form of Annex I hereto (all of the undersigned,
together with such other Persons each a “Guarantor” and collectively, the “Guarantors”)
in favor of (a) WACHOVIA INVESTMENT
HOLDINGS, LLC, in its capacity as Agent (the “Agent”) for the Lenders
under that certain Term Loan Agreement dated as of November 28, 2005 (as amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”), by and among Heritage Property Investment Trust, Inc.
(the “Borrower”), the financial institutions party thereto and their assignees
under Section 12.5. thereof (the “Lenders”), the Agent, and the other
parties thereto, and (b) the Lenders.


 


WHEREAS,
pursuant to the Credit Agreement, the Lenders have agreed to make available to
the Borrower certain financial accommodations on the terms and conditions set
forth in the Credit Agreement;


 


WHEREAS,
the Borrower and each of the Guarantors, though separate legal entities, are
mutually dependent on each other in the conduct of their respective businesses
as an integrated operation and have determined it to be in their mutual best
interests to obtain financing from the Lenders through their collective
efforts;


 


WHEREAS,
each Guarantor acknowledges that it will receive direct and indirect benefits
from the Lenders making such financial accommodations available to the Borrower
under the Credit Agreement and, accordingly, each Guarantor is willing to
guarantee the Borrower’s obligations to the Agent and the Lenders on the terms
and conditions contained herein; and


 


WHEREAS,
each Guarantor’s execution and delivery of this Guaranty is a condition to the
Lenders making, and continuing to make, such financial accommodations to the
Borrower.


 


NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by each Guarantor, each Guarantor agrees as
follows:


 


Section 1.  Guaranty.  Each Guarantor hereby absolutely, irrevocably
and unconditionally guaranties the due and punctual payment and performance
when due, whether at stated maturity, by acceleration or otherwise, of all of
the following (collectively referred to as the “Guarantied Obligations”): (a) all
indebtedness and obligations owing by the Borrower to any Lender or the Agent
under or in connection with the Credit Agreement and any other Loan Document,
including without limitation, the repayment of all principal of the Term Loans,
and the payment of all interest, Fees, charges, attorneys’ fees and other
amounts payable to any Lender or the Agent thereunder or in connection
therewith; (b) any and all extensions, renewals, modifications, amendments
or substitutions of the foregoing; (c) all expenses, including, without
limitation, reasonable attorneys’ fees and disbursements, that are incurred by
the Lenders and the Agent in


 


G-1





















 


the enforcement of any of the foregoing or any obligation of such
Guarantor hereunder; and (d) all other Obligations.


 


Section 2.  Guaranty of Payment and Not of Collection.  This Guaranty is a guaranty of payment, and
not of collection, and a debt of each Guarantor for its own account.  Accordingly, none of the Lenders or the Agent
shall be obligated or required before enforcing this Guaranty against any
Guarantor: (a)  to pursue any right or remedy any of them may have against
the Borrower, any other Guarantor or any other Person or commence any suit or
other proceeding against the Borrower, any other Guarantor or any other Person
in any court or other tribunal; (b) to make any claim in a liquidation or
bankruptcy of the Borrower, any other Guarantor or any other Person; or (c) to
make demand of the Borrower, any other Guarantor or any other Person or to
enforce or seek to enforce or realize upon any collateral security held by the
Lenders or the Agent which may secure any of the Guarantied Obligations.


 


Section 3.  Guaranty Absolute.  Each Guarantor guarantees that the Guarantied
Obligations will be paid strictly in accordance with the terms of the documents
evidencing the same, regardless of any Applicable Law now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Agent or the Lenders with respect thereto. 
The liability of each Guarantor under this Guaranty shall be absolute,
irrevocable and unconditional in accordance with its terms and shall remain in
full force and effect without regard to, and shall not be released, suspended,
discharged, terminated or otherwise affected by, any circumstance or occurrence
whatsoever, including without limitation, the following (whether or not such
Guarantor consents thereto or has notice thereof):


 


(a)                                  (i) any
change in the amount, interest rate or due date or other term of any of the
Guarantied Obligations, (ii) any change in the time, place or manner of
payment of all or any portion of the Guarantied Obligations, (iii) any
amendment or waiver of, or consent to the departure from or other indulgence
with respect to, the Credit Agreement, any other Loan Document, or any other
document or instrument evidencing or relating to any Guarantied Obligations, or
(iv) any waiver, renewal, extension, addition, or supplement to, or
deletion from, or any other action or inaction under or in respect of, the
Credit Agreement, any of the other Loan Documents, or any other documents,
instruments or agreements relating to the Guarantied Obligations or any other
instrument or agreement referred to therein or evidencing any Guarantied
Obligations or any assignment or transfer of any of the foregoing;


 


(b)                                 any
lack of validity or enforceability of the Credit Agreement, any of the other
Loan Documents, or any other document, instrument or agreement referred to therein
or evidencing any Guarantied Obligations or any assignment or transfer of any
of the foregoing;


 


(c)                                  any
furnishing to the Agent or the Lenders of any security for the Guarantied
Obligations, or any sale, exchange, release or surrender of, or realization on,
any collateral securing any of the Obligations;


 


(d)                                 any
settlement or compromise of any of the Guarantied Obligations, any security
therefor, or any liability of any other party with respect to the Guarantied
Obligations, or any


 


G-2





















 


subordination of the payment of the Guarantied Obligations to the
payment of any other liability of the Borrower or any other Loan Party;


 


(e)                                  any
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to such Guarantor, the Borrower,
any other Loan Party or any other Person, or any action taken with respect to
this Guaranty by any trustee or receiver, or by any court, in any such
proceeding;


 


(f)                                    any
act or failure to act by the Borrower, any other Loan Party or any other Person
which may adversely affect such Guarantor’s subrogation rights, if any, against
the Borrower to recover payments made under this Guaranty;


 


(g)                                 any
nonperfection or impairment of any security interest or other Lien on any
collateral, if any, securing in any way any of the Obligations;


 


(h)                                 any
application of sums paid by the Borrower, any other Guarantor or any other
Person with respect to the liabilities of the Borrower to the Agent or the
Lenders regardless of what liabilities of the Borrower remain unpaid;


 


(i)                                     any
defect, limitation or insufficiency in the borrowing powers of the Borrower or
in the exercise thereof; or


 


(j)                                     any
other circumstance which might otherwise constitute a defense available to, or
a discharge of, a Guarantor hereunder (other than indefeasible payment and
performance in full).


 


Section 4.  Action with Respect to Guarantied
Obligations.  The Lenders and the
Agent may, at any time and from time to time, without the consent of, or notice
to, any Guarantor, and without discharging any Guarantor from its obligations
hereunder, take any and all actions described in Section 3 and may
otherwise: (a) amend, modify, alter or supplement the terms of any of the
Guarantied Obligations, including, but not limited to, extending or shortening
the time of payment of any of the Guarantied Obligations or changing the
interest rate that may accrue on any of the Guarantied Obligations; (b) amend,
modify, alter or supplement the Credit Agreement or any other Loan Document; (c) sell,
exchange, release or otherwise deal with all, or any part, of any collateral
securing any of the Obligations; (d) release any other Loan Party or other
Person liable in any manner for the payment or collection of the Guarantied
Obligations; (e) exercise, or refrain from exercising, any rights against
the Borrower, any other Guarantor or any other Person; and (f) apply any
sum, by whomsoever paid or however realized, to the Guarantied Obligations in such
order as the Lenders shall elect.


 


Section 5.  Representations and Warranties.  Each Guarantor hereby makes to the Agent and
the Lenders all of the representations and warranties made by the Borrower with
respect to or in any way relating to such Guarantor in the Credit Agreement and
the other Loan Documents, as if the same were set forth herein in full.


 


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Section 6.  Covenants.  Each Guarantor will comply with all covenants
which the Borrower is to cause such Guarantor to comply with under the terms of
the Credit Agreement or any of the other Loan Documents.


 


Section 7.  Waiver.  Each Guarantor, to the fullest extent
permitted by Applicable Law, hereby waives notice of acceptance hereof or any
presentment, demand, protest or notice of any kind, and any other act or thing,
or omission or delay to do any other act or thing, which in any manner or to
any extent might vary the risk of such Guarantor or which otherwise might
operate to discharge such Guarantor from its obligations hereunder.


 


Section 8.  Inability to Accelerate Loan.  If the Agent and/or the Lenders are prevented
under Applicable Law or otherwise from demanding or accelerating payment of any
of the Guarantied Obligations by reason of any automatic stay or otherwise, the
Agent and/or the Lenders shall be entitled to receive from each Guarantor, upon
demand therefor, the sums which otherwise would have been due had such demand
or acceleration occurred.


 


Section 9.  Reinstatement of Guarantied Obligations.  If claim is ever made on the Agent or any
Lender for repayment or recovery of any amount or amounts received in payment
or on account of any of the Guarantied Obligations, and the Agent or such
Lender repays all or part of said amount by reason of (a) any judgment,
decree or order of any court or administrative body of competent jurisdiction,
or (b) any settlement or compromise of any such claim effected by the
Agent or such Lender with any such claimant (including the Borrower or a
trustee in bankruptcy for the Borrower), then and in such event each Guarantor
agrees that any such judgment, decree, order, settlement or compromise shall be
binding on it, notwithstanding any revocation hereof or the cancellation of the
Credit Agreement, any of the other Loan Documents, or any other instrument
evidencing any liability of the Borrower, and such Guarantor shall be and
remain liable to the Agent or such Lender for the amounts so repaid or
recovered to the same extent as if such amount had never originally been paid
to the Agent or such Lender.


 


Section 10.  Subrogation.  Upon the making by any Guarantor of any
payment hereunder for the account of the Borrower, such Guarantor shall be
subrogated to the rights of the payee against the Borrower; provided, however,
that such Guarantor shall not enforce any right or receive any payment by way
of subrogation or otherwise take any action in respect of any other claim or
cause of action such Guarantor may have against the Borrower arising by reason
of any payment or performance by such Guarantor pursuant to this Guaranty,
unless and until all of the Guarantied Obligations have been indefeasibly paid
and performed in full.  If any amount
shall be paid to such Guarantor on account of or in respect of such subrogation
rights or other claims or causes of action, such Guarantor shall hold such
amount in trust for the benefit of the Agent and the Lenders and shall
forthwith pay such amount to the Agent to be credited and applied against the
Guarantied Obligations, whether matured or unmatured, in accordance with the
terms of the Credit Agreement or to be held by the Agent as collateral security
for any Guarantied Obligations existing.


 


Section 11.  Payments Free and Clear.  All sums payable by each Guarantor hereunder,
whether of principal, interest, Fees, expenses, premiums or otherwise, shall be
paid in full, without set-off or counterclaim or any deduction or withholding
whatsoever (including any


 


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Taxes), and if any Guarantor is required by Applicable Law or by a
Governmental Authority to make any such deduction or withholding, such
Guarantor shall pay to the Agent and the Lenders such additional amount as will
result in the receipt by the Agent and the Lenders of the full amount payable
hereunder had such deduction or withholding not occurred or been required.


 


Section 12.  Set-off.  In addition to any rights now or hereafter
granted under any of the other Loan Documents or Applicable Law and not by way
of limitation of any such rights, each Guarantor hereby authorizes the Agent
and each Lender, at any time during the continuance of an Event of Default,
without any prior notice to such Guarantor or to any other Person, any such
notice being hereby expressly waived, but in the case of a Lender or
Participant subject to receipt of the prior written consent of the Agent
exercised in its sole discretion, to set off and to appropriate and to apply
any and all deposits (general or special, including, but not limited to, indebtedness
evidenced by certificates of deposit, whether matured or unmatured) and any
other indebtedness at any time held or owing by the Agent, such Lender, or any
affiliate of the Agent or such Lender, to or for the credit or the account of
such Guarantor against and on account of any of the Guarantied Obligations,
although such obligations shall be contingent or unmatured. Each Guarantor
agrees, to the fullest extent permitted by Applicable Law, that any Participant
may exercise rights of setoff or counterclaim and other rights with respect to
its participation as fully as if such Participant were a direct creditor of
such Guarantor in the amount of such participation.


 


Section 13.  Subordination.  Each Guarantor hereby expressly covenants and
agrees for the benefit of the Agent and the Lenders that all obligations and
liabilities of the Borrower to such Guarantor of whatever description,
including without limitation, all intercompany receivables of such Guarantor
from the Borrower (collectively, the “Junior Claims”) shall be subordinate and
junior in right of payment to all Guarantied Obligations.  If an Event of Default shall exist, then no
Guarantor shall accept any direct or indirect payment (in cash, property or
securities, by setoff or otherwise) from the Borrower on account of or in any
manner in respect of any Junior Claim until all of the Guarantied Obligations
have been indefeasibly paid in full.


 


Section 14.  Avoidance Provisions.  It is the intent of each Guarantor, the Agent
and the Lenders that in any Proceeding, such Guarantor’s maximum obligation
hereunder shall equal, but not exceed, the maximum amount which would not
otherwise cause the obligations of such Guarantor hereunder (or any other
obligations of such Guarantor to the Agent and the Lenders) to be avoidable or
unenforceable against such Guarantor in such Proceeding as a result of
Applicable Law, including without limitation, (a) Section 548 of the
Bankruptcy Code of 1978, as amended (the “Bankruptcy Code”), and (b) any
state fraudulent transfer or fraudulent conveyance act or statute applied in
such Proceeding, whether by virtue of Section 544 of the Bankruptcy Code
or otherwise.  The Applicable Laws under
which the possible avoidance or unenforceability of the obligations of such
Guarantor hereunder (or any other obligations of such Guarantor to the Agent
and the Lenders) shall be determined in any such Proceeding are referred to as
the “Avoidance Provisions”.  Accordingly,
to the extent that the obligations of any Guarantor hereunder would otherwise
be subject to avoidance under the Avoidance Provisions, the maximum Guarantied
Obligations for which such Guarantor shall be liable hereunder shall be reduced
to that amount which, as of the time any of the Guarantied Obligations are
deemed to have been incurred under the Avoidance Provisions, would not cause
the obligations of such


 


G-5





















 


Guarantor hereunder (or any other obligations of such Guarantor to the
Agent and the Lenders), to be subject to avoidance under the Avoidance
Provisions.  This Section is
intended solely to preserve the rights of the Agent and the Lenders hereunder
to the maximum extent that would not cause the obligations of any Guarantor
hereunder to be subject to avoidance under the Avoidance Provisions, and no
Guarantor or any other Person shall have any right or claim under this Section as
against the Agent and the Lenders that would not otherwise be available to such
Person under the Avoidance Provisions.


 


Section 15.  Information.  Each Guarantor assumes all responsibility for
being and keeping itself informed of the financial condition of the Borrower
and the other Guarantors, and of all other circumstances bearing upon the risk
of nonpayment of any of the Guarantied Obligations and the nature, scope and
extent of the risks that such Guarantor assumes and incurs hereunder, and
agrees that none of the Agent and the Lenders shall have any duty whatsoever to
advise any Guarantor of information regarding such circumstances or risks.


 


Section 16.  Governing Law.  THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.


 


SECTION 17.  WAIVER OF JURY TRIAL.


 


(a)                                  EACH
PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN OR AMONG ANY
GUARANTOR, THE AGENT OR ANY OF THE LENDERS WOULD BE BASED ON DIFFICULT AND
COMPLEX ISSUES OF LAW AND FACT AND WOULD RESULT IN DELAY AND EXPENSE TO THE
PARTIES.  ACCORDINGLY, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, EACH OF THE LENDERS, THE AGENT AND EACH GUARANTOR
HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY
KIND OR NATURE IN ANY COURT OR TRIBUNAL IN WHICH AN ACTION MAY BE
COMMENCED BY OR AGAINST ANY PARTY HERETO ARISING OUT OF THIS GUARANTY OR ANY
OTHER LOAN DOCUMENT OR BY REASON OF ANY OTHER SUIT, CAUSE OF ACTION OR DISPUTE
WHATSOEVER BETWEEN OR AMONG ANY GUARANTOR, THE AGENT OR ANY OF THE LENDERS OF
ANY KIND OR NATURE RELATING TO ANY OF THE LOAN DOCUMENTS.


 


(b)                                 EACH OF THE GUARANTORS, THE AGENT
AND EACH LENDER HEREBY AGREES THAT THE FEDERAL DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK OR, AT THE OPTION OF THE AGENT, ANY STATE COURT LOCATED IN
THE BOROUGH OF MANHATTAN, NEW YORK, NEW YORK, SHALL HAVE JURISDICTION TO HEAR
AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG ANY GUARANTOR, THE AGENT
OR ANY OF THE LENDERS, PERTAINING DIRECTLY OR INDIRECTLY TO THIS GUARANTY OR
ANY OTHER LOAN DOCUMENT OR TO ANY MATTER ARISING HEREFROM OR THEREFROM.  EACH GUARANTOR AND EACH OF THE LENDERS
EXPRESSLY SUBMIT AND CONSENT IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR
PROCEEDING


 


G-6





















 


COMMENCED IN SUCH COURTS WITH RESPECT TO SUCH CLAIMS OR DISPUTES.  EACH PARTY FURTHER WAIVES ANY OBJECTION THAT
IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING
IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN
INCONVENIENT FORUM AND EACH AGREES NOT TO PLEAD OR CLAIM THE SAME.  THE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL
NOT BE DEEMED TO PRECLUDE THE BRINGING OF ANY ACTION BY THE AGENT OR ANY LENDER
OR THE ENFORCEMENT BY THE AGENT OR ANY LENDER OF ANY JUDGMENT OBTAINED IN SUCH
FORUM IN ANY OTHER APPROPRIATE JURISDICTION.


 


(c)                                  THE PROVISIONS OF THIS SECTION HAVE
BEEN CONSIDERED BY EACH PARTY WITH THE ADVICE OF COUNSEL AND WITH A FULL
UNDERSTANDING OF THE LEGAL CONSEQUENCES THEREOF, AND SHALL SURVIVE THE PAYMENT
OF THE LOANS AND ALL OTHER AMOUNTS PAYABLE HEREUNDER OR UNDER THE OTHER LOAN
DOCUMENTS AND THE TERMINATION OF THIS GUARANTY.


 


Section 18.  Loan Accounts.  The Agent and each Lender may maintain books
and accounts setting forth the amounts of principal, interest and other sums
paid and payable with respect to the Guarantied Obligations, and in the case of
any dispute relating to any of the outstanding amount, payment or receipt of
any of the Guarantied Obligations or otherwise, the entries in such books and
accounts shall be deemed conclusive evidence of the amounts and other matters
set forth herein, absent manifest error. 
The failure of the Agent or any Lender to maintain such books and
accounts shall not in any way relieve or discharge any Guarantor of any of its
obligations hereunder.


 


Section 19.  Waiver of Remedies.  No delay or failure on the part of the Agent
or any Lender in the exercise of any right or remedy it may have against any
Guarantor hereunder or otherwise shall operate as a waiver thereof, and no
single or partial exercise by the Agent or any Lender of any such right or
remedy shall preclude any other or further exercise thereof or the exercise of
any other such right or remedy.


 


Section 20.  Termination.  This Guaranty shall remain in full force and
effect until indefeasible payment in full of the Guarantied Obligations and the
other Obligations and the termination or cancellation of the Credit Agreement
in accordance with its terms.


 


Section 21.  Successors and Assigns.  Each reference herein to the Agent or the
Lenders shall be deemed to include such Person’s respective successors and
assigns (including, but not limited to, any holder of the Guarantied
Obligations) in whose favor the provisions of this Guaranty also shall inure,
and each reference herein to each Guarantor shall be deemed to include such
Guarantor’s successors and assigns, upon whom this Guaranty also shall be
binding.  The Lenders may, in accordance
with the applicable provisions of the Credit Agreement, assign, transfer or
sell any Guarantied Obligation, or grant or sell participations in any
Guarantied Obligations, to any Person without the consent of, or notice to, any
Guarantor and without releasing, discharging or modifying any Guarantor’s obligations
hereunder.  Subject


 


G-7





















 


to Section 12.8. of the Credit Agreement, each Guarantor hereby
consents to the delivery by the Agent or any Lender to any Assignee or
Participant (or any prospective Assignee or Participant) of any financial or
other information regarding the Borrower or any Guarantor.  No Guarantor may assign or transfer its
rights or obligations hereunder to any Person without the prior written consent
of all Lenders and any such assignment or other transfer to which all of the
Lenders have not so consented shall be null and void.


 


Section 22.  JOINT AND SEVERAL OBLIGATIONS.  THE OBLIGATIONS OF THE GUARANTORS HEREUNDER
SHALL BE JOINT AND SEVERAL, AND ACCORDINGLY, EACH GUARANTOR CONFIRMS THAT IT IS
LIABLE FOR THE FULL AMOUNT OF THE “GUARANTIED OBLIGATIONS” AND ALL OF THE OBLIGATIONS
AND LIABILITIES OF EACH OF THE OTHER GUARANTORS HEREUNDER.


 


Section 23.  Amendments.  This Guaranty may not be amended except in
writing signed by the Requisite Lenders (or all of the Lenders if required
under the terms of the Credit Agreement), the Agent and each Guarantor.


 


Section 24.  Payments.  All payments to be made by any Guarantor
pursuant to this Guaranty shall be made in Dollars, in immediately available
funds to the Agent at the Principal Office, not later than 2:00 p.m. on
the date of demand therefor.


 


Section 25.  Notices.  All notices, requests and other
communications hereunder shall be in writing (including facsimile transmission
or similar writing) and shall be given (a) to each Guarantor at its
address set forth below its signature hereto, (b) to the Agent or any
Lender at its respective address for notices provided for in the Credit
Agreement, or (c) as to each such party at such other address as such
party shall designate in a written notice to the other parties.  Each such notice, request or other
communication shall be effective (i) if mailed, when received; (ii) if
telecopied, when transmitted; or (iii) if hand delivered, when delivered;
provided, however, that any notice of a change of address for notices shall not
be effective until received.


 


Section 26.  Severability.  In case any provision of this Guaranty shall
be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.


 


Section 27.  Headings.  Section headings used in this Guaranty
are for convenience only and shall not affect the construction of this
Guaranty.


 


Section 28.  Limitation of Liability.  Neither the Agent nor any Lender, nor any
affiliate, officer, director, employee, attorney, or agent of the Agent or any
Lender, shall have any liability with respect to, and each Guarantor hereby
waives, releases, and agrees not to sue any of them upon, any claim for any
special, indirect, incidental, or consequential damages suffered or incurred by
a Guarantor in connection with, arising out of, or in any way related to, this
Guaranty or any of the other Loan Documents, or any of the transactions
contemplated by this Guaranty, the Credit Agreement or any of the other Loan
Documents.  Each Guarantor hereby waives,
releases, and agrees not to sue the Agent or any Lender or any of the Agent’s
or any Lender’s affiliates, officers, directors, employees, attorneys, or
agents for punitive damages in respect of


 


G-8





















 


any claim in connection with, arising out of, or in any way related to,
this Guaranty, the Credit Agreement or any of the other Loan Documents, or any
of the transactions contemplated by Credit Agreement or financed thereby.


 


Section 29.  Definitions.  (a) For the purposes of this Guaranty:


 


“Proceeding”
means any of the following: (i) a voluntary or involuntary case concerning
any Guarantor shall be commenced under the Bankruptcy Code of 1978, as amended;
(ii) a custodian (as defined in such Bankruptcy Code or any other
applicable bankruptcy laws) is appointed for, or takes charge of, all or any
substantial part of the property of any Guarantor; (iii) any other
proceeding under any Applicable Law, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding-up or composition for
adjustment of debts, whether now or hereafter in effect, is commenced relating
to any Guarantor; (iv) any Guarantor is adjudicated insolvent or bankrupt;
(v) any order of relief or other order approving any such case or
proceeding is entered by a court of competent jurisdiction; (vi) any
Guarantor makes a general assignment for the benefit of creditors; (vii) any
Guarantor shall fail to pay, or shall state that it is unable to pay, or shall
be unable to pay, its debts generally as they become due; (viii) any
Guarantor shall call a meeting of its creditors with a view to arranging a
composition or adjustment of its debts; (ix) any Guarantor shall by any
act or failure to act indicate its consent to, approval of or acquiescence in
any of the foregoing; or (x) any corporate action shall be taken by any
Guarantor for the purpose of effecting any of the foregoing.


 


(b)                                 Terms
not otherwise defined herein are used herein with the respective meanings given
them in the Credit Agreement.


 


[Signature on Next Page]


 


G-9





















 


IN WITNESS WHEREOF, each Guarantor has duly executed
and delivered this Guaranty as of the date and year first written above.


 


	
   

  	
  [GUARANTORS]

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Address for
  Notices:

  
	
   

  	
   

  
	
   

  	
  c/o Heritage Property Investment Trust, Inc.

  
	
   

  	
  131 Dartmouth Street, 6th Floor

  
	
   

  	
  Boston, Massachusetts 02116

  
	
   

  	
  Attention:
  Patrick O’Sullivan

  
	
   

  	
  Telecopy Number:

  	
  (617) 266-0885

  
	
   

  	
  Telephone
  Number:

  	
  (617) 247-2200
  (ext 2502)

  
							



 


G-10





















 


ANNEX I


 


FORM OF ACCESSION AGREEMENT


 


THIS
ACCESSION AGREEMENT dated as of             ,
200  , executed and delivered by                       ,
a              
(the “New Guarantor”), in favor of (a) WACHOVIA
INVESTMENT HOLDINGS, LLC, in its capacity as Agent (the “Agent”) for the
Lenders under that certain Term Loan Agreement dated as of November 28, 2005 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”),
by and among Heritage Property Investment Trust, Inc.
(the “Borrower”), the financial institutions party thereto and their assignees
under Section 12.5. thereof (the “Lenders”), the Agent, and the other
parties thereto and (b) the Lenders.


 


WHEREAS,
pursuant to the Credit Agreement, the Lenders have agreed to make available to
the Borrower certain financial accommodations on the terms and conditions set
forth in the Credit Agreement;


 


WHEREAS,
the Borrower, the New Guarantor, and the existing Guarantors, though separate
legal entities, are mutually dependent on each other in the conduct of their
respective businesses as an integrated operation and have determined it to be
in their mutual best interests to obtain financing from the Lenders through
their collective efforts;


 


WHEREAS,
the New Guarantor acknowledges that it will receive direct and indirect
benefits from the Lenders making such financial accommodations available to the
Borrower under the Credit Agreement and, accordingly, the New Guarantor is
willing to guarantee the Borrower’s obligations to the Agent and the Lenders on
the terms and conditions contained herein; and


 


WHEREAS,
the New Guarantor’s execution and delivery of this Agreement is a condition to
the Lenders continuing to make such financial accommodations to the Borrower;


 


NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by the New Guarantor, the New Guarantor agrees as
follows:


 


Section 1.  Accession to Guaranty.  The New Guarantor hereby agrees that it is a “Guarantor”
under that certain Guaranty dated as of November 28,
2005 (as amended, supplemented, restated or otherwise modified from time
to time, the “Guaranty”), made by each Subsidiary of the Borrower a party
thereto in favor of the Agent and the Lenders and assumes all obligations of a “Guarantor”
thereunder and agrees to be bound thereby, all as if the New Guarantor had been
an original signatory to the Guaranty. 
Without limiting the generality of the foregoing, the New Guarantor
hereby:


 


(a)                                  irrevocably
and unconditionally guarantees the due and punctual payment and performance
when due, whether at stated maturity, by acceleration or otherwise, of all
Guarantied Obligations (as defined in the Guaranty);


 


G-11





















 


(b)                                 makes
to the Agent and the Lenders as of the date hereof each of the representations
and warranties contained in Section 5 of the Guaranty and agrees to be
bound by each of the covenants contained in Section 6 of the Guaranty; and


 


(c)                                  consents
and agrees to each provision set forth in the Guaranty.


 


SECTION 2.  GOVERNING LAW.  THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.


 


Section 3.  Definitions.  Capitalized terms used herein and not
otherwise defined herein shall have their respective defined meanings given
them in the Credit Agreement.


 


[Signatures on Next Page]


 


G-12





















 


IN WITNESS WHEREOF, the New Guarantor has caused this
Accession Agreement to be duly executed and delivered under seal by its duly
authorized officers as of the date first written above.


 


	
   

  	
  [NEW GUARANTOR]

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Address for
  Notices:

  
	
   

  	
   

  
	
   

  	
  c/o Heritage Property Investment Trust, Inc.

  
	
   

  	
  131 Dartmouth Street, 6th Floor

  
	
   

  	
  Boston, Massachusetts 02116

  
	
   

  	
  Attention:
  Patrick O’Sullivan

  
	
   

  	
  Telecopy Number:

  	
  (617) 266-0885

  
	
   

  	
  Telephone
  Number:

  	
  (617) 247-2200
  (ext 2502)

  
	
   

  	
   

  	
   

  
	
  Accepted:

  
	
   

  
	
  WACHOVIA INVESTMENT

  HOLDINGS, LLC, as Agent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
											



 


G-13





















 


EXHIBIT H


 


FORM OF NOTICE OF BORROWING


 


            ,
200  


 


Wachovia
Investment Holdings, LLC, as Agent


One Wachovia Center


301 South College Street


Mail Code:  NC0166


Charlotte, North
Carolina  28288-0166


Attention:            


 


Ladies and Gentlemen:


 


Reference
is made to that certain Term Loan Agreement dated as of November 28, 2005 (as amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”), by and among Heritage Property Investment Trust, Inc.
(the “Borrower”), the financial institutions party thereto and their assignees
under Section 12.5. thereof (the “Lenders”), Wachovia Investment Holdings, LLC, as Agent (the “Agent”), and the
other parties thereto.  Capitalized terms
used herein, and not otherwise defined herein, have their respective meanings
given them in the Credit Agreement.


 


1.                                       Pursuant
to Section 2.1.(b) of the Credit Agreement, the Borrower hereby
requests that the Lenders make Term Loans to the Borrower in an aggregate
principal amount equal to $                   .


 


2.                                       The
Borrower requests that such Term Loans be made available to the Borrower on             ,
200 .


 


3.                                       The
Borrower hereby requests that the requested Term Loans all be of the following
Type:


 


[Check one box only]


 


	
  o
  Base Rate Loans

  
	
  o
  LIBOR Loans, each with an initial Interest Period for a duration of:

  
	
   

  	
   

  
	
  [Check
  one box only]

  	
  o

  	
  1 month

  
	
   

  	
  o

  	
  2 months

  
	
   

  	
  o

  	
  3 months

  



 


4.                                       The
proceeds of this borrowing of Term Loans will be used for the following
purpose:                                                                                                      .


 


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5.                                       The
Borrower requests that the proceeds of this borrowing of Term Loans be made
available to the Borrower by                             .


 


The Borrower hereby certifies to the Agent and the
Lenders that as of the date hereof and as of the date of the making of the
requested Term Loans and after giving effect thereto, (a) no Default or
Event of Default exists or shall exist, and (b) the representations and
warranties made or deemed made by the Borrower and each other Loan Party in the
Loan Documents to which any of them is a party are and shall be true and
correct in all material respects, except to the extent that such
representations and warranties expressly relate solely to an earlier date (in
which case such representations and warranties shall have been true and correct
on and as of such earlier date) and except for changes in factual circumstances
not prohibited under the Loan Documents. In addition, the Borrower certifies to
the Agent and the Lenders that all conditions to the making of the requested
Term Loans contained in Section 5.2.
(and, if the making of such Term Loans is the first Credit Event under the Credit
Agreement, Section 5.1.) of the Credit Agreement will have been satisfied
(or waived in accordance with the applicable provisions of the Loan Documents)
at the time such Term Loans are made.


 


IN
WITNESS WHEREOF, the undersigned has duly executed and delivered this Notice of
Borrowing as of the date first written above.


 


	
   

  	
  HERITAGE PROPERTY INVESTMENT TRUST, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
						



 


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