LOAN AGREEMENT DATED AS OF DECEMBER 19, 2006

Exhibit 10.60

 

 

 

LOAN AGREEMENT

dated as of December 19, 2006

between

BANK OF AMERICA, N.A.
(“Lender”)

		Address of Lender:				1185 Avenue of the Americas, 16th Floor
						New York, New York 10036

BANK OF AMERICA, N.A., as Administrative Agent
(“Administrative Agent”)

		Address of Lender:				1185 Avenue of the Americas, 16th Floor
						New York, New York 10036

and

RD BRANCH ASSOCIATES, L.P.
(“Borrower”),

		Address of Borrower:				c/o Acadia Realty Trust
						1311 Mamaroneck Avenue, Suite 260
						White Plains, New York 10605

 

 

LOCATION OF MORTGAGED PROPERTY:

The Branch Plaza Property located on Route 25 in Smithtown, New York

     THIS LOAN AGREEMENT (“this Agreement”) dated as of December 19, 2006 by and among RD BRANCH ASSOCIATES, L.P. (“Borrower”) and BANK OF AMERICA, N.A. (in its individual capacity and not as Administrative Agent, “BofA”) and each other lender who may become a Lender pursuant to Section 8.07, each, a “Lender” and collectively, “Lenders”) and BANK OF AMERICA, N.A., as Administrative Agent for Lenders (together with its successors in such capacity, “Administrative Agent”).

     WHEREAS, BofA is the holder of that certain Severed Note made by Borrower in favor of BofA dated the date hereof in the amount of $15,000,000 (the “Existing Note”), which was made pursuant to that certain Note Modification and Severance Agreement between Borrower, certain affiliates of Borrower and BofA dated the date hereof; and

     WHEREAS, Borrower has requested, and Lender and Administrative Agent have agreed, subject to the terms and conditions hereof, to make an additional loan to Borrower in the amount of $1,000,000 to be evidenced by a note dated the date hereof made by Borrower to Lender in the amount of $1,000,000 (the “New Note”) and Lender is prepared to do so on the terms and conditions hereinafter set forth.

     NOW, THEREFORE, in consideration of the mutual promises and agreements herein contained, Borrower, Administrative Agent and Lenders hereby agree that this Agreement consolidates, amends and restates the Existing Note and the New Note in their entirety such that from and after the date hereof the Loan shall be evidenced, administered and repaid pursuant to and in accordance with the following terms:

ARTICLE I

DEFINITIONS AND RULES OF CONSTRUCTION

     Section 1.01. Definitions . The following terms, as used in this Agreement, shall have the following meanings:

“ Additional Interest ” — Any and all sums that shall become due and payable by Borrower under the Hedging Agreement.

“ Anchors ” — North Fork Bank and A&P Grocery.

“ Applicable Lending Office ” — For each Lender and for the portions of the outstanding principal balance under its Note bearing interest at the Prime Based Rate or LIBO Based Rate, as applicable, the lending office of such Lender (or of an affiliate of such Lender) designated as such on the signature page hereof or in the applicable Assignment and Assumption Agreement, or such other office of such Lender (or of an affiliate of such Lender) as such Lender may from time to time specify to Administrative Agent and Borrower as the office by the portions of the outstanding principal balance under its Note bearing interest at the Prime Based Rate or LIBO Based Rate , as applicable, are to be made and maintained.

“ Applicable Margin ” — With respect to the Prime Based Rate, 0.50% per annum; and with respect to the LIBO Based Rate, 1.30% per annum.

“ Assignee ” — Has the meaning specified in Section 8.07.

“ Assignment and Assumption Agreement ” — An Assignment and Assumption Agreement, substantially in the form of EXHIBIT A, pursuant to which a Lender assigns and an Assignee assumes rights and obligations in accordance with Section 8.07.

“ Authorization Letter ” — The letter in the form of EXHIBIT F.

“ Business Day ” — Any day on which commercial banks are not authorized or required to close in New York City; and, whenever such day relates to a LIBOR Amount, an Interest Period with respect to a LIBOR Amount, or notice with respect to a LIBOR Amount, any such day in which dealings in Dollar deposits are also carried out in the London interbank market and banks are also open for business in London.

“ Code ” — The Internal Revenue Code of 1986.

“ Counterparty ” — Bank of America, N.A., in its capacity as a party to the Hedging Agreement, and its successors and assigns in such capacity.

“ Default ” — Any event or circumstance which, with the giving of notice or the passage of time, or both, would become an Event of Default.

“ DSC Test ” — Has the meaning set forth in Section 2.04 of this Agreement.

“ Dollars ” and “ $ ” — Lawful money of the United States of America.

“ Employee Benefit Plan ” — Any employee benefit or other plan established or maintained, or to which contributions have been made, by Borrower or Guarantor.

“ ERISA ” — The Employee Retirement Income Security Act of 1974, including the rules and regulations promulgated thereunder.

“ ERISA Affiliate ” — Any corporation which is a member of the same controlled group of corporations (within the meaning of Section 414(b) of the Code) as Borrower and/or Guarantor, or any trade or business which is under common control (within the meaning of Section 414(c) of the Code) with Borrower and/or Guarantor, or any organization which is required to be treated as a single employer with Borrower and/or Guarantor under Section 414(m) or 414(o) of the Code.

“ Event of Default ” — Has the meaning given to such term in the Mortgage.

“ Existing Note ” — Has the meaning specified in the preamble hereto.

“Fiscal Year” — The calendar year or such other annual period as Borrower and Administrative Agent may mutually agree upon.

“Financial Statements” — Statements of the assets, liabilities (direct or contingent), income, expenses and cash flow of Borrower and Guarantor, prepared in accordance with generally accepted accounting principles in the United States as in effect from time to time and consistently applied.

“Governmental Authorities” — The United States, the state in which the Property is located and any political subdivision, agency, department, commission, board, bureau or instrumentality of either of them, including any local authorities, which exercises jurisdiction over Borrower, Guarantor, the Property or the Improvements.

“Guarantor” — Jointly and severally, Acadia Realty Limited Partnership, a Delaware limited partnership and any other person(s) or entity(ies) who may hereafter become a guarantor of any or all of Borrower’s obligations in respect of the Loan.

“Guaranty” — The guaranty(ies) of all or part of Borrower’s obligations, to be executed by Guarantor.

“Hazardous Materials” — Has the meaning given to such term in the Mortgage.

“Hedging Agreement” — Any ISDA Master Agreement or other documentation with respect to an interest rate hedging transaction entered into by and between Borrower and Counterparty, as may be amended, modified or supplemented from time to time, including any and all “confirmations” under any thereof.

“Improvements” — A one story neighborhood shopping center containing 125,840 square feet with respect to the Branch Plaza Property.

“Indemnity” — An agreement from Borrower and Guarantor or, if there is no Guarantor, such other persons or entities as shall be satisfactory to Lender, whereby, among other things, Lender is indemnified regarding Hazardous Materials.

“Individual Loan Commitment” — With respect to each Lender, the amount set forth below opposite the name of such Lender (subject to change in accordance with the terms of this Agreement).

Lender		Individual Loan Commitment
BofA		$16,000,000

“ Insolvency Event ” — The occurrence of any of the Events of Default described in clauses (d) through (h) of the Mortgage.

“ Interest Period ” — The period during which interest at the LIBO Based Rate, determined as provided in this Agreement, shall be applicable to the LIBO Rate Request Amount in question, provided , however , that each such period shall be either one (1), two (2), three (3) (or, if available, four (4), or six (6)) months, which shall be measured from the date specified by Borrower in each LIBO Rate Request for the commencement of the computation of interest at the LIBO Based Rate, to the numerically corresponding day in the calendar month in which such period terminates (or, if there be no numerical correspondent in such month, or if the date selected by Borrower for such commencement is the last Business Day of a calendar month, then the last Business Day of the calendar month in which such period terminates, or if the numerically corresponding day is not a Business Day then the next succeeding Business Day, unless such next succeeding Business Day enters a new calendar month, in which case such period shall end on the next preceding Business Day) and in no event shall any such period extend beyond the Maturity Date.

“ Law ” — Any federal, state or local law, statute, rule, regulation, ordinance, order, decree, directive, requirement, code, notice of violation or rule of common law, now or hereafter in effect, and in each case as amended, and any judicial or administrative interpretation thereof by a Governmental Authority or otherwise, including any judicial or administrative order, determination, consent decree or judgment.

“ Lender Reply Period ” — Has the meaning specified in Section 8.06.

“ Lender’s Counsel ” — Schiff Hardin LLP, 623 Fifth Avenue, 28th Floor, New York, New York 10022.

“ LIBO Based Rate ” — With respect to any LIBOR Amount, the rate per annum (expressed as a percentage) determined by Administrative Agent to be equal to the sum of (i) the quotient of the LIBO Rate for the LIBOR Amount and Interest Period in question divided by [1 minus the Reserve Requirement] (at Administrative Agent’s option, rounded up, if necessary, to the nearest 1/100 of 1%) and (ii) the Applicable Margin.

“ LIBO Rate ” — With respect to any applicable Interest Period, the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by Reuters (or other commercially available source providing quotations of BBA LIBOR as selected by Administrative Agent from time to time) at approximately 11:00 a.m. London time two (2) Business Days before the commencement of such Interest Period, for deposits in U.S. Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period. If such rate is not available at such time for any reason, then the rate for that Interest Period will be determined by such alternate method as reasonably selected by Administrative Agent.

“ LIBO Rate Request ” — Borrower’s telephonic notice (to be promptly confirmed in writing), to be received by Administrative Agent by 12 Noon (New York time) three (3) Business Days prior to the date specified in the LIBO Rate Request for the commencement of the Interest Period (which specified date must be a Business Day), of (a) its intention to have (i) all or any portion of the Principal Amount which is not then the subject of an Interest Period (other than an Interest Period which is terminating on the Business Day specified in the notice) and/or (ii) all or any portion of any advance of proceeds of the Loan evidenced by the Notes which is to be made on the Business Day specified in such notice, bear interest at the LIBO Based Rate and (b) the Interest Period desired by Borrower in respect of the amount specified, which notice shall be promptly communicated by Administrative Agent to each Lender.

“ LIBO Rate Request Amount ” — The amount, to be specified by Borrower in each LIBO Rate Request, which Borrower desires bear interest at the LIBO Based Rate and which, at Administrative Agent’s option, shall be an integral multiple of $100,000.

“ LIBOR Amount ” — All or any portion (as the context requires) of any Lender’s Loan which shall accrue interest at the LIBOR Based Rate.

“ Liquidity Requirement ” — Has the meaning specified in Section 4.01(d)(18).

“ Loan ” — The loan in the Loan Amount made by Lender to Borrower under this Agreement.

“ Loan Amount ” — $16,000,000.

“ Loan Documents ” — This Agreement, the Note, the Mortgage, the Indemnity, the Authorization Letter, Uniform Commercial Code financing statements in respect of the Mortgaged Property and any other collateral given to Lender as security for the Loan, and any other documents which evidence or secure the Loan.

“ Loan to Value Test ” — Has the meaning set forth in Section 2.03 of this Agreement.

“ Major Lease ” — Any lease for space in excess of 5,000 square feet of the rentable area of the Improvements.

“ Material Adverse Change ” means either (1) a material adverse change in the status of the business, results of operations, financial condition, property or prospects of Borrower or (2) any event or occurrence of whatever nature which is likely to (x) have a material adverse effect on the ability of Borrower to perform its obligations under the Loan Documents or (y) create, in the sole and absolute judgment (reasonably exercised) of Lender, a material risk of sale or forfeiture of any of the Mortgaged Property (other than an immaterial portion thereof) under any Mortgage or otherwise materially impair any of the Mortgaged Property under any Mortgage or Lenders’ rights therein.

“ Maturity Date ” — December 1, 2011.

“ Mortgage ” — Collectively, (i) that certain leasehold mortgage, assignment of leases and rents and security agreement dated the date hereof from Borrower to Administrative Agent (the “New Mortgage”) and (ii) those certain mortgage(s), assignments of leases and rents and security agreements described in, and modified by, that certain Mortgage Modification Agreement, dated the date hereof, by and between Borrower and Administrative Agent (the “Existing Mortgage”), all to secure the payment and performance of Borrower’s obligations hereunder, under the Note and otherwise in respect of the Loan.

“ Mortgaged Property ” means, for each Property, the Property, the Improvements thereon and all other property constituting the “Mortgaged Property”, as said quoted term is defined in the applicable Mortgage.

“ Multiemployer Plan ” — Any plan defined as such in Section 3(37) of ERISA.

“ Net Operating Income ”

     (a) all revenues from the ownership, use, occupancy, leasing and operation of the Property during the period in question, determined in accordance with GAAP (but adjusted to eliminate the effects of straight-lining of rents and further adjusted to exclude extraordinary and non-recurring sources of income), including all rental and other payments, including, without limitation, base rent, additional rent, promotional revenues, percentage rent and payments for common area maintenance, taxes, insurance and operating expenses and proceeds of rental loss or business interruption service, excluding tenant security deposits collected but not applied to tenants’ obligations, and interest on such deposits;

      minus

     (b) all expenses in connection with the Property during such period, determined in accordance with GAAP, including insurance premiums, real estate taxes, promotional expenses, maintenance and repair expenses, management fees and any other operational expenses, all as determined in accordance with GAAP, but not including debt service payable under the Loan.

“ Net Worth Requirement ” — Has the meaning specified in Section 4.01(d)(18).

“ New Note ” — Has the meaning specified in the preamble hereto.

“ Note ”; “ Notes ” — Have the respective meanings specified in Section 2.06.

“ Participant ”; “ Participation ” — Have the respective meanings specified in Section 8.07.

“ Pension Plan ” — Any employee pension benefit plan within the meaning of Section 3(2) of ERISA with respect to which Borrower, Guarantor or any ERISA Affiliate at any relevant time has liability or an obligation to contribute.

“Person” — An individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture or other entity of whatever nature.

“Premises Documents” — Has the meaning given to such term in the Mortgage.

“Prime Based Rate” — The Applicable Margin plus the greater of (i) the Federal Funds Rate plus 1/2 of 1% per annum or (ii) the prime commercial lending rate as announced from time to time by Administrative Agent at Administrative Agent’s Office (it being understood that said “prime commercial lending rate” is a reference rate and does not necessarily represent the lowest or best rate being charged to customers), each change in said rates to be effective, without notice or demand of any kind, as of the date of such change.

“Principal Amount” — At any time, the aggregate outstanding principal amount of the Notes.

“Property” — The leasehold interest in real property located on Route 25 in Smithtown, New York owned by Branch Borrower.

“Pro Rata Share” — With respect to each Lender, the ratio of such Lender’s Individual Loan Commitment to the Loan Amount. As of the date hereof, the Lenders’ respective Pro Rata Shares are as follows:

Lender		Pro Rata Share
BofA		100%

“ Regulation D ” and “ Regulation U ” — Respectively, Regulation D and Regulation U of the Board of Governors of the Federal Reserve System.

“ Regulatory Change ” — With respect to any Lender and the charging and collecting of interest at the LIBO Based Rate, any change after the date hereof in federal, state or foreign laws or regulations (including Regulation D) or the adoption or making after such date of any interpretations, directives or requests applying to a class of banks including such Lender under any federal, state or foreign laws or regulations (whether or not having the force of law) by any court or governmental or monetary authority charged with the interpretation or administration thereof, excluding any change the effect of which is reflected in a change in the LIBO Based Rate.

“ Required Lenders ” — At any time, those Lenders holding at least 66-2/3% of the Principal Amount.

“ Reserve Requirement ” — The rate at which reserves (including any marginal, supplemental or emergency reserves) are actually required to be maintained by any Lender or any Lender’s respective Participants, if any, under Regulation D against “Euro-Currency Liabilities”, as such quoted term is used in Regulation D.

Without limiting the effect of the foregoing, the Reserve Requirement shall reflect any other reserves required to be maintained by any Lender or any Lender’s respective Participants, if any, by reason of any Regulatory Change against (i) any category of liabilities which includes deposits by reference to which the LIBO Based Rate is to be determined as provided in this Agreement or (ii) any category of extensions of credit or other assets which includes loans the interest rate on which is determined on the basis of rates used in determining the LIBO Rate.

“ Requisition ” — A written statement by or on behalf of Borrower, in form and substance satisfactory to Administrative Agent, setting forth the amount of the Loan advance requested and instructions for the payment of the same, and certifying the purpose for which such advance is to be used.

“ Supplemental Fee Letter ” — That certain letter agreement, dated the date hereof, between BofA and Borrower, providing for Borrower’s payment to Administrative Agent and/or BofA on the date hereof and from time to time hereafter certain fees in connection with the Loan, each such fee to be for Administrative Agent’s and/or BofA’s own account.

“ Title Insurer ” — The issuer(s), approved by Administrative Agent, of the title insurance policy or policies insuring the Mortgage.

“ Treasury Rate ” — The yield rate (i) on the 10 year U.S. Treasury Security due on or closest to the Maturity Date (as defined in the Note), as such yield rate is reported in the Wall Street Journal on the second Business Day preceding the date of calculation.

“ Unrestricted Cash and Cash Equivalents ” means the following assets of Guarantor, in each case, not subject to any lien, security interest or restriction: (i) cash, (ii) securities issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof (provided that the full faith and credit of the United States of America is pledged in support thereof) having maturities of not more than six (6) months from the date of acquisition, (iii) shares of money market funds invested in the securities described in clause (ii) above and (iv) Dollar denominated demand deposits, time deposits or certificates of deposit of any domestic United States commercial bank whose long-term debt is rated at least A by Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies, Inc. or A2 by Moody’s Investors Service, Inc. and having capital and surplus in excess of $500,000,000.

     Section 1.02. Rules of Construction . Except as expressly provided otherwise, when used in this Agreement (i) “or” is not exclusive, (ii) “hereunder”, “herein”, “hereof” and the like refer to this Agreement as a whole, (iii) “Article”, “Section”, “Schedule” and “Exhibit” refer to Articles, Sections, Schedules and Exhibits of this Agreement, (iv) terms defined in the singular shall have a correlative meaning when used in the plural and vice versa, (v) a reference to a Law includes any amendment, modification or supplement to, or replacement of, such Law and (vi) a reference to a document shall mean such

document as the same may be amended, modified or supplemented from time to time in accordance with its terms. The cover page and the Exhibits and Schedules, if any, annexed hereto are incorporated as a part of this Agreement with the same effect as if set forth in the body hereof. Any table of contents and all captions and headings herein are for convenience only and shall not affect the interpretation or construction hereof.

ARTICLE II

     Section 2.01. Generally . Subject to the provisions of this Agreement, and on the basis of the representations, warranties and covenants made herein and in the other Loan Documents, each Lender severally agrees to advance its Pro Rata Share of the Loan and Borrower will accept the Loan Amount in periodic disbursements as hereinafter set forth and upon the satisfaction of the conditions set forth in Article IV hereof.

     Section 2.02. Nature of Lenders’ Obligations . The obligations of Lenders under this Agreement are several, and no Lender shall be responsible for the failure of any other Lender to make any advance of the Loan to be made by such other Lender. However, the failure of any Lender to make any advance of the Loan to be made by it hereunder on the date specified therefor shall not relieve any other Lender of its obligation to make any advance of its portion of the Loan specified hereby to be made on such date.

     Section 2.03. Purpose . The Loan shall be made for the business purpose of financing the Mortgaged Property. Borrower covenants and agrees that in no event shall proceeds of the Loan, or any part thereof, be used, directly or indirectly, for any other purpose, for any illegal purpose or 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, or in connection with any hostile acquisition or for any illegal purpose.

     Section 2.04. Advances . The portion of the Loan heretofore evidenced by the Existing Note has been advanced and the outstanding principal balance thereof is $15,000,000. The $1,000,000 portion of the Loan to be initially evidenced by the New Note shall be advanced in a single advance in the amount of $1,000,000 and shall be made upon satisfaction of the conditions set forth in Section 4.01.

     Section 2.05. Intentionally Omitted .

     Section 2.06. Notes . From and after the date hereof, the Existing Note and the New Note are hereby modified and restated by, and the Loan shall be evidenced by notes of Borrower in the form of EXHIBIT D, duly completed and executed by Borrower (with a separate note or notes for each Lender in an aggregage amount equal to such Lender’s Individual Loan Commitment, payable for the account of such Lender’s Applicable Lending Office), in an aggregate principal amount equal to the Loan Amount (such notes, as the same may hereafter be amended, modified, extended, severed, assigned, substituted, renewed or restated from time to time (including, without limitation, any

substitute notes pursuant to Section 8.07), each, a “Note” and collectively, the “Notes”). The Existing Note, as modified hereby, shall be severed by, among other things, the Existing Mortgage. The New Note shall be secured by, among other things, the New Mortgage. The Notes shall mature, and all outstanding principal and other sums thereunder shall be paid in full, on the Maturity Date, as the same may be accelerated or extended.

     In case of any loss, theft, destruction or mutilation of any Lender’s Note, Borrower shall, upon its receipt of an affidavit of an officer of such Lender as to such loss, theft, destruction or mutilation and an appropriate indemnification, execute and deliver a replacement Note to such Lender in the same principal amount and otherwise of like tenor as the lost, stolen, destroyed or mutilated Note.

     Section 2.07. Payments and Distributions . Borrower shall make each payment under this Agreement and under the Notes not later than 11:00 a.m. (New York time) on the date when due to Administrative Agent at Administrative Agent’s Office in immediately available funds. Administrative Agent will thereafter, on the day of its receipt of each such payment, cause to be distributed to each Lender such Lender’s appropriate share (based upon the respective outstanding principal amounts of the Notes and the respective rates of interest thereunder) of the payments of principal and interest, and its appropriate share of the payments of other sums, in like funds for the account of such Lender’s Applicable Lending Office. Payments by Borrower hereunder or under the Notes or other Loan Documents shall be made without setoff or counterclaim.

     Except to the extent otherwise provided in this Agreement, whenever any payment to be made under this Agreement or under the Notes is due on any day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of the payment of interest and, if applicable, fees, as the case may be.

     Each Lender’s interest in the Loan shall be of equal priority with the interest of each other Lender.

     Section 2.08. Interest . Borrower shall have the option, subject to the terms and conditions set forth in this Agreement, of paying interest on the Principal Amount or portions thereof at the Prime Based Rate or the LIBO Based Rate. If Borrower desires the application of the LIBO Based Rate, it shall submit a LIBO Rate Request to Administrative Agent, which LIBO Rate Request shall be irrevocable, subject to Borrower’s right to convert the rate of interest payable under the Notes with respect to any LIBOR Amount from the LIBO Based Rate to the Prime Based Rate as provided in Section 2.10. Administrative Agent shall, on the day of its receipt of the LIBO Rate Request from Borrower, notify each Lender by either telephone or by facsimile of the specified LIBOR Amount and the amount of the Lender’s portion thereof, the Interest Period and date of commencement thereof, and the interest rate applicable to such LIBOR Amount. Each LIBO Rate Request shall be applicable to the Notes in accordance with the Lenders’ respective Pro Rata Shares, so that, barring a conversion or suspension of the LIBO Based Rate by one or more, but not all, Lenders, pursuant to Article III, the

outstanding principal amounts of each of the Notes shall contain segments bearing interest at the Prime Based Rate and/or LIBO Based Rate(s) under particular Interest Period(s), each of which segments shall correspond to a proportional segment of the outstanding principal amount of every other Note. In the event that Borrower fails to submit a LIBO Rate Request with respect to a LIBOR Amount not later than 12 Noon (New York time) three (3) Business Days prior to the last day of the relevant Interest Period, the LIBOR Amount in question shall bear interest, commencing at the end of such Interest Period, at the Prime Based Rate.

     Interest shall be computed on an actual/360-day basis ( i . e ., interest for each day during which any portion of the Principal Amount is bearing interest at a particular interest rate per annum shall be computed at such rate divided by 360).

     Borrower shall pay interest on the Principal Amount to Administrative Agent for the account of Lenders. Interest on the Principal Amount shall be payable, in arrears, monthly on the first day of the first month following the date hereof and on the first day of each month thereafter until the Notes are repaid in full.

     Section 2.09. Limitation on Number of Interest Periods . Borrower shall not have the right to have more than five (5) Interest Periods, in the aggregate, in respect of the Loan in effect at any one time, whether or not any portion of the Principal Amount is then bearing interest at the Prime Based Rate.

     Section 2.10. Conversions of Interest Rate . Provided there exists no Event of Default, Borrower shall have the right to convert, from time to time, the rate of interest payable under the Notes with respect to any portion of the Principal Amount to the LIBO Based Rate or the Prime Based Rate, subject to the terms of this Agreement (including, without limitation, the payment of all amounts due in connection with any such conversion from the LIBO Based Rate on a date other than the last day of an applicable Interest Period) and provided that, in the case of a conversion from the LIBO Based Rate, the entire LIBOR Amount is the subject of the conversion. Conversions shall be accomplished (i) in the case of a conversion from the Prime Based Rate to the LIBO Based Rate, by Borrower’s submission of a LIBO Rate Request in accordance with Section 2.08 or (ii) in the case of a conversion from the LIBO Based Rate to the Prime Based Rate, by Borrower’s request to Administrative Agent by telephone (to be promptly confirmed in writing), to be received by Administrative Agent at least three (3) Business Days prior to the date specified for such conversion, specifying the LIBOR Amount with respect to which the interest rate is to be converted and the date of the conversion. On the date of its receipt of such request, Administrative Agent shall notify each Lender thereof either by telephone or by facsimile.

     Section 2.11. Inapplicability of LIBO Based Rate . Any portion of the Principal Amount to which the LIBO Based Rate is not or cannot pursuant to the terms of this Agreement be applicable shall bear interest at the Prime Based Rate. Upon the occurrence of an Event of Default, the entire Principal Amount shall, at the option of the Required Lenders, immediately and without notice to Borrower, bear interest at the Prime Based Rate. In addition, following the occurrence of an Event of Default, Borrower shall

have no right to submit a LIBO Rate Request with respect to any LIBOR Amount for which the current Interest Period is expiring. The foregoing provisions shall not be construed as a waiver by Lenders of their right to pursue any other remedies available to them under the Mortgage or any other Loan Document nor shall they be construed to limit in any way the application of the Default Rate as provided in the Mortgage.

     Section 2.12. Late Payment Premium . Borrower shall pay to Administrative Agent for the account of Lenders a late payment premium in the amount of 5% of any payments of principal or interest under the Loan made more than ten (10) days after the due date thereof, which late payment premium shall be due with any such late payment.

     Section 2.13. Voluntary Prepayments . Borrower may, upon at least fifteen (15) Business Days’ notice (which notice shall be irrevocable) to Administrative Agent, prepay the Principal Amount, in whole or part, without premium or penalty; provided , however , that (i) any partial prepayment under this Section shall be in a principal amount of not less than $1,000,000 and an integral multiple of $100,000, (ii) prepayment of a LIBOR Amount other than on the last day of the applicable Interest Period shall be subject to the provisions of Section 3.03 and (iii) each prepayment under this Section shall include all interest accrued on the amount of principal prepaid (and all late charges and other sums that may be payable) through the date of prepayment. Amounts prepaid may not be reborrowed.

     Section 2.14. Annual Commitment Reduction/Required Amortization . Commencing on the first day of February, 2007 and on the first day of each month thereafter until the Maturity Date, Borrower shall make mandatory principal payments in the amount of $20,603, each in reduction of the Principal Amount. The aforesaid principal payments shall be applied first to the Principal Amount evidenced by the New Note until repaid in full and then shall be applied to the Principal Amount evidenced by the Existing Note.

     Section 2.15. Extension of Maturity . Borrower shall have the right to extend the Maturity Date for a period of one (1) year, to December 1, 2012 (the “First Extension Term”), upon satisfaction of the following conditions: (i) Borrower shall give notice to Administrative Agent of Borrower’s election to so extend the Maturity Date no later than thirty (30) days prior to the original Maturity Date and no earlier than ninety (90) days prior to the original Maturity Date, (ii) no Default or Event of Default exists at either the time Borrowers gives notice of its exercise of such extension option or as of the original Maturity Date, (iii) with Borrower’s notice exercising such extension option, Borrower shall pay to BofA the extension fee required pursuant to the Supplemental Fee Letter, which fee shall be earned by BofA upon receipt and (iv) without limiting the generality of the foregoing, Borrower shall be in compliance with Section 6.06.

ARTICLE III

YIELD MAINTENANCE ETC.

     Section 3.01. Additional Costs and Other Effects of Regulatory Changes; Taxes . Borrower shall pay directly to a Lender, promptly upon demand, such amounts as are necessary to compensate such Lender for Additional Costs resulting from any Regulatory Change which (i) subjects such Lender to any tax, duty or other charge with respect to the Loan or its Note, or changes the basis of taxation of any amounts payable to such Lender under the Loan or its Note (other than taxes imposed on the overall net income of such Lender or of its Applicable Lending Office by the jurisdiction in which such Lender’s principal office or such Applicable Lending Office is located), (ii) imposes, modifies or deems applicable any reserve, special deposit or similar requirements relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, such Lender, (iii) imposes on such Lender or, in the case of LIBOR Amounts, on the London interbank market, any other condition affecting the Loan or its Note, or any of such extensions of credit or liabilities or (iv) imposes any capital adequacy requirements on such Lender by virtue of the Loan or the Notes. Such Lender will notify Borrower (with a copy to Administrative Agent) of any event occurring after the date hereof which would entitle it to compensation pursuant to this paragraph as promptly as practicable after it obtains knowledge thereof and determines to request such compensation, and will designate a different Applicable Lending Office for those portions of the Loan affected by such event if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in such Lender’s sole opinion, be disadvantageous to it, provided that such Lender shall have no obligation to so designate an Applicable Lending Office located in the United States.

     Without limiting the effect of the immediately preceding paragraph, in the event that, by reason of any Regulatory Change, (i) a Lender incurs Additional Costs based on or measured by the excess above a specified level of the amount of (1) a category of deposits or other liabilities of such Lender which includes deposits by reference to which the LIBO Rate is determined as provided in this Agreement and/or (2) a category of extensions of credit or other assets of such Lender which includes loans the interest on which is determined on the basis of rates referred to in the definition of “LIBO Rate” in Section 1.01, (ii) a Lender becomes subject to restrictions on the amount of such a category of liabilities or assets which it may hold or (iii) it shall be unlawful or impossible for a Lender to make or maintain its Pro Rata Share of the Loan (or any portion thereof) at the LIBO Based Rate, then such Lender’s obligation to make or maintain its Pro Rata Share of the Loan (or any portion thereof) at the LIBO Based Rate (and Borrower’s right to request the same) shall be suspended and such Lender shall give notice thereof to Borrower (with a copy to Administrative Agent) and, upon the giving of such notice, interest payable on the affected Note shall be converted to the Prime Based Rate, unless such Lender may lawfully continue to maintain its Pro Rata Share of the Loan (or any portion thereof) then bearing interest at the LIBO Based Rate to the end of the current Interest Period(s), at which time the interest rate on the affected Note shall convert to the Prime Based Rate. If subsequent to any conversion to the Prime Based Rate as provided above such Lender determines that such Regulatory Change has ceased

to be in effect, such Lender will so notify Borrower (with a copy to Administrative Agent), and Borrower may convert the rate of interest payable under the affected Note with respect to those portions of the Principal Amount bearing interest at the Prime Based Rate to the LIBO Based Rate by submitting a LIBO Rate Request in respect thereof and otherwise complying with the provisions of this Agreement with respect thereto.

     Determinations by each Lender of the existence or effect of any Regulatory Change on its costs of making or maintaining its Pro Rate Share of the Loan, or portions thereof, at the LIBO Based Rate, or on amounts receivable by it in respect thereof, and of the additional amounts required to compensate such Lender in respect of Additional Costs, shall be conclusive, so long as made on a reasonable basis.

     Section 3.02. Limitations on Availability of LIBO Based Rate . Anything herein to the contrary notwithstanding, if, at the time of or prior to the determination of the LIBO Based Rate in respect of any LIBO Rate Request Amount as provided in this Agreement, (i) Administrative Agent determines (which determination shall be conclusive, so long as made on a reasonable basis) that by reason of circumstances affecting the London interbank market generally, adequate and fair means do not or will not exist for determining the LIBO Rate applicable to an Interest Period or (ii) a Lender determines (which determination shall be conclusive, so long as made on a reasonable basis) that the LIBO Rate will not accurately reflect the cost to such Lender of making or maintaining its Pro Rata Share of the Loan (or any portion thereof) at the LIBO Based Rate, then Administrative Agent, in the case of the circumstances described in clause (i) above, or such Lender, in the case of the circumstances described in clause (ii) above, shall give Borrower prompt notice thereof (with a copy to Administrative Agent in the case of the notice from such Lender), and the LIBO Rate Request Amount in question, in the case of the circumstances described in clause (i) above, or such Lender’s portion thereof, in the case of the circumstances described in clause (ii) above, shall bear interest, or continue to bear interest, as the case may be, at the Prime Based Rate. If at any time subsequent to Administrative Agent’s or such Lender’s giving of such notice, Administrative Agent or such Lender, as the case may be, determines that because of a change in circumstances the LIBO Based Rate is again available to Borrower, Administrative Agent or such Lender, as the case may be, shall so notify Borrower (with a copy to Administrative Agent, in the case of the notice from such Lender) and Borrower may convert the rate of interest payable under the Notes or such Lender’s Note, as the case may be, from the Prime Based Rate to the LIBO Based Rate by submitting a LIBO Rate Request in respect thereof and otherwise complying with the provisions of this Agreement with respect thereto.

     Section 3.03. Certain Compensation . Borrower shall pay directly to a Lender, immediately upon request and notwithstanding contrary provisions contained in the Mortgage or other Loan Documents, such amounts as shall, in the judgment of such Lender (which shall be conclusive so long as made on a reasonable basis), compensate it for any loss, cost or expense incurred by it as a result of (i) any payment or prepayment (under any circumstances whatsoever, whether voluntary or involuntary) of any portion of the Principal Amount bearing interest at the LIBO Based Rate on a date other than the last day of an applicable Interest Period, (ii) the conversion (for any reason whatsoever,

whether voluntary or involuntary) of the rate of interest payable under such Lender’s Note from the LIBO Based Rate to the Prime Based Rate with respect to any portion of the Principal Amount then bearing interest at the LIBO Based Rate on a date other than the last day of an applicable Interest Period, (iii) the failure of all or a portion of an advance of the Loan which was to have borne interest at the LIBO Based Rate pursuant to a LIBO Rate Request to be made, (iv) any failure by Borrower to prepay any portion of the Principal Amount bearing interest at the LIBO Based Rate on the date specified in Borrower’s notice of prepayment or (v) the failure of Borrower to borrow, continue or convert in accordance with a LIBO Rate Request submitted by it, which amounts shall include, without limitation, an amount equal the Present Value (determined as hereinafter provided) of the dollar amount which is obtained by multiplying the number of days from the date of the occurrence to the last day of the applicable Interest Period by a number which is calculated by (i) multiplying the amount prepaid, converted, not advanced, not prepaid or not borrowed, as the case may be, by the excess of the LIBO Based Rate applicable thereto over the current rate for United States Treasury securities (bills on a discounted basis shall be converted to a bond equivalent) with a maturity date closest to the last day of the applicable Interest Period and (ii) dividing the product thereof by 360. For purposes of this Section, Present Value shall be determined by using the number of days during the period from the date of occurrence to and including the last day of the applicable Interest Period and using the above-referenced United States Treasury security rate. A determination by a Lender as to the amounts payable to it pursuant to this Section shall be conclusive absent manifest error.

     Section 3.04. “Lender” to Include Participants . For purposes of this Article III and of the definition of “Additional Costs” in Section 1.01, the term “Lender” shall, at each Lender’s option, be deemed to include such Lender’s present and future Participants in the Loan to the extent of each such Participant’s actual Additional Costs or other losses, costs or expenses payable pursuant to this Article III.

ARTICLE IV

CONDITIONS PRECEDENT

     Section 4.01. Conditions Precedent to Loan . Lenders shall not be obligated to make the Loan until the following conditions shall have been satisfied:

     (a) There shall exist no Default or Event of Default, and no Default or Event of Default would result from the making of the Loan;

     (b) The representations and warranties made to Administrative Agent or Lenders herein, in the other Loan Documents and in any other document, certificate or statement executed or delivered to Administrative Agent or Lenders in connection with the Loan shall be true and correct on and as of the date of the advance of the Loan with the same effect as if made on such date;

     (c) The Improvements shall not have been materially injured or damaged by fire or other casualty; and

     (d) Lenders shall have received and approved each of the following:

     (1) Loan Fees and Expenses . (i) Payment of the fees required by the Supplemental Fee Letter and (ii) payment of all fees and expenses incurred by Administrative Agent (including, without limitation, the reasonable fees and expenses of Lenders’ Counsel, Lenders’ environmental and insurance consultants, and the preparer of the appraisal required by paragraph (4) below);

     (2) Loan Documents . This Agreement and each of the other Loan Documents, duly executed by the parties thereto, and, where applicable, duly acknowledged and in proper form for recording or filing, as the case may be, and all necessary or desirable recordings and filings shall have been duly made;

     (3) Financial Statements . Current Financial Statements and such other financial data (including, without limitation, current financial statements of tenants under leases in respect of the Mortgaged Property and of parties to any of the Premises Documents, and of the guarantor(s), if any, of any such tenants or parties) as Administrative Agent shall require;

     (4) Appraisal . An independent M.A.I. appraisal of the Property and Improvements complying in all respects with the standards for real estate appraisals established pursuant to the Financial Institutions Reform, Recovery, and Enforcement Act of 1989;

     (5) Insurance Policies . The policies of insurance required by the Mortgage, together with evidence of the payment of the premiums therefor;

     (6) Hazardous Materials Report/Reliance Letter . A detailed report by a properly qualified engineer, which shall include, inter alia , a certification that such engineer has obtained and examined a list of prior owners, tenants and other users of all or any portion of the Property or any improvements thereon, and has made an on-site physical examination of the Property, and a visual observation of the surrounding areas, and has found no evidence of past or present Hazardous Materials activities or the presence of Hazardous Materials, together with, if required by Administrative Agent, a “reliance letter” addressed to Administrative Agent with respect to such report;

     (7) Title Policy . A paid title insurance policy, in the amount of $16,000,000 in ALTA 10-17-92 or other form approved by Lender’s Counsel with such endorsements as shall be reasonably requested by Lender’s Counsel, issued by the Title Insurer which shall insure the Mortgage to be a valid lien on Borrower’s interest in the premises free and

clear of all defects and encumbrances except those previously received and approved by Lender’s Counsel, and shall contain (i) full coverage against mechanics’ liens (filed and inchoate), (ii) a reference to the survey but no survey exceptions except those theretofore approved by Lender’s Counsel, (iii) such affirmative insurance and endorsements as Lender’s Counsel may require, and (iv) if any such policy is dated earlier than the date of the disbursement of the Loan, an endorsement to such policy, in form approved by Lender’s Counsel, redating the policy and setting forth no additional exceptions except those approved by Lender’s Counsel; and shall be accompanied by such reinsurance agreements between the Title Insurer and title companies approved by Lender, in ALTA 1994 facultative form, as Lender may require;

     (8) Survey . A current, as-built survey of the Property, certified to Lender and the Title Insurer showing (i) the location of the perimeter of the Property by courses and distances, (ii) all easements, rights-of-way, and utility lines referred to in the title policy required by this Agreement or which actually service or cross the Property, (iii) the lines of the streets abutting the Property and the width thereof, and any established building and setback lines, (iv) encroachments and the extent thereof upon the Property, (v) the Improvements and the relationship thereof by distances to the perimeter of the Property, established building, setback and street lines and (vi) if the Property is described as being on a filed map, a legend relating the survey to said map, provided that Administrative Agent hereby acknowledges that the surveys received on or prior to the date hereof shall satisfy this requirement notwithstanding the fact that they may not be current provided that no unacceptable survey exception is taken in the title insurance policy insuring the Mortgage;

     (9) Leases and Premises Documents . Certified copies of all leases in respect of the Mortgaged Property, accompanied by, in the case of Anchors and any other leases specified by Administrative Agent, estoppel certificates from the tenants thereunder and executed notice-of-assignment letters in the form of EXHIBIT B in respect thereof; executed subordination and attornment agreements, in Administrative Agent’s usual form, in respect of such leases as Administrative Agent may require; a certified copy of the standard form of lease or contract of sale, as the case may be, Borrower will use in connection with the leasing of space in the Improvements or the sale of portions of the Property; certified copies of all Premises Documents, together with estoppel certificates from the parties thereto and a certified current rent roll for the Improvements;

     (10) Requisition . A Requisition for the advance of Loan proceeds,

     (11) Counsel Opinions . Opinions of Borrower’s counsel and local counsel (and, if required by Lender, of a local counsel selected by Lender or Lender’s Counsel) to the effects set forth on EXHIBIT C;

     (12) Organizational Documents . If Borrower, the mortgagor or grantor under the Mortgage (if different from Borrower), Guarantor or any general partner or member of any of them is a corporation, current copies of the following documents with respect to each (unless otherwise indicated):

     (i) a good-standing certificate from the jurisdiction of its incorporation and, as to Borrower and the mortgagor or grantor under the Mortgage only, from the jurisdiction in which the Property is located,

     (ii) a resolution, certified by the corporate secretary, of the shareholders or directors of the corporation authorizing the consummation of the transactions contemplated hereby and the execution, delivery and performance of the Loan Documents and any other documents to be executed, delivered or performed by said corporation (including any substitute or replacement Notes to be executed and delivered pursuant to the terms hereof), and

     (iii) a certificate of the corporate secretary as to the incumbency of the officers executing any of the documents required hereby,

and, if Borrower, the mortgagor or grantor under the Mortgage (if different from Borrower), Guarantor or any general partner or member of any of them is a partnership, venture, limited liability company or trust:

     (iv) the entity’s organizational agreement and all amendments and attachments thereto, certified by a general partner, venturer, member or trustee to be true and complete,

     (v) any certificates filed or required to be filed by the entity in the jurisdictions of its formation and where the Property is located in order for it to do business in those jurisdictions, and

     (vi) evidence of the authorization of the consummation of the transactions contemplated hereby and the execution, delivery and performance of the Loan Documents and any other documents to be executed, delivered or performed by said entity (including any substitute or replacement notes to be executed and delivered pursuant to the terms hereof), and including any required consents by partners, venturers, members, trustees or beneficiaries;

     (13) Intentionally Omitted ;

     (14) Permits and Approvals . Copies of the certificate(s) of occupancy for the Improvements and of any and all other authorizations (including plot plan and subdivision approvals, zoning variances, water, sewer, building and other permits) required by Governmental Authorities or otherwise necessary for the use, occupancy and operation of the Property and/or Improvements for their intended purposes in accordance with all applicable Laws;

     (15) Intentionally Omitted ;

     (16) Chattel Searches . UCC searches against Borrower or other owner of the Mortgaged Property and advice from the Title Insurer to the effect that searches of proper public records disclose no leases of personalty or financing statements filed or recorded against the Mortgaged Property, Borrower or other owner of any Mortgaged Property;

     (17) Intentionally Omitted ; and

     (18) Additional Documentation . Such other approvals, opinions or documents as Lender may reasonably request including, but not limited to, (i) a current certified rent roll for the Mortgaged Property and tenant estoppel letters for all Anchors, (ii) ground lessor estoppel certificates from the ground lessor with respect to the Property and (iii) current financial statements of Guarantor showing a minimum net worth of $100,000,000 (the “Net Worth Requirement”) and a minimum Unrestricted Cash and Cash Equivalents of $10,000,000 (the “Liquidity Requirement”).

     Section 4.02. Intentionally Omitted.

ARTICLE V

REPRESENTATIONS AND WARRANTIES

     Borrower and Guarantor represent and warrant to Administrative Agent and Lenders that:

     Section 5.01. Due Formation, Power and Authority . If it, the mortgagor or grantor under the Mortgage (if different from Borrower), Guarantor or any general partner or member of any of them is a corporation, partnership, venture, limited liability company or trust, each such entity is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its formation, is qualified to do business (if required) and is in good standing in the jurisdiction in which the Property is located, and has full power and authority to consummate the transactions contemplated hereby and to execute, deliver and perform this Agreement and any other Loan Document to which it is a party.

     Section 5.02. Legally Enforceable Agreements . Each Loan Document to which Borrower or Guarantor is a party is a legal, valid and binding obligation of such party, enforceable against Borrower or Guarantor, as the case may be, in accordance with its terms, except to the extent that such enforcement may be limited by applicable bankruptcy, insolvency and other similar Laws affecting creditors’ rights generally.

     Section 5.03. Financial Statements . Financial Statements have been heretofore delivered to Lenders which are true, correct and current in all respects and which fairly present the respective financial conditions of the subjects thereof as of the respective dates thereof; no material adverse change has occurred in the financial conditions reflected therein since the respective dates thereof and no borrowings (other than the Loan) which might give rise to a lien or claim against the Mortgaged Property or proceeds of the Loan have been made by Borrower or others since the dates thereof.

     Section 5.04. Compliance With Laws; Payment of Taxes . Borrower and Guarantor are in compliance with, and the transactions contemplated hereby and by the other Loan Documents do not and will not violate any provision of, or require any filing, registration, consent or approval under, any Law presently in effect having applicability to Borrower or Guarantor; Borrower has filed all tax returns (federal, state and local) required to be filed and has paid all taxes, assessments and governmental charges and levies due and payable (including those in respect of the Mortgaged Property), including interest and penalties.

     Section 5.05. Litigation . There are no actions, suits or proceedings pending or threatened against or affecting it, Guarantor, the Mortgaged Property, the validity or enforceability of the Mortgage or the priority of the lien thereof at law, in equity or before or by any Governmental Authorities except actions, suits or proceedings which have been disclosed to Administrative Agent and Lenders in writing and which are fully covered by insurance or would, if adversely determined, not substantially impair the ability of Borrower or Guarantor to pay when due any amounts which may become payable under the Notes or Guaranty or to otherwise pay and perform their respective obligations in connection with the Loan; to Borrower’s knowledge, neither it nor Guarantor is in default with respect to any order, writ, injunction, decree or demand of any court or Governmental Authorities.

     Section 5.06. No Conflicts or Defaults . The consummation of the transactions contemplated hereby and the performance hereof and of the other Loan Documents have not resulted and will not result in any breach of, or constitute a default under, any mortgage, deed of trust, lease, bank loan or credit agreement, corporate charter, by-laws, partnership agreement or other instrument to which Borrower or Guarantor is a party or by which either of them may be bound or affected.

     Section 5.07. Solvency . Borrower and Guarantor are, and upon consummation of the transactions contemplated by this Agreement, the other Loan Documents and any other related documents, will be, solvent.

     Section 5.08. Governmental Regulation . Borrower is not subject to regulation under the Investment Company Act of 1940 or any Law limiting its ability to incur indebtedness for money borrowed as contemplated hereby.

     Section 5.09. Insurance . Borrower has in force, and has paid the premiums in respect of, all of the insurance required by the Mortgage.

     Section 5.10. ERISA . Neither Borrower nor Guarantor nor any other Person, including any fiduciary, has engaged in any prohibited transaction (as defined in Section 4975 of the Code or Section 406 of ERISA) which could subject Borrower or Guarantor or any Person whom they have an obligation to indemnify to any tax or penalty imposed under Section 4975 of the Code or Section 502 of ERISA; neither Borrower nor Guarantor nor any ERISA Affiliate maintains, contributes to or has any liability with respect to a Multiemployer Plan or any other plan subject to Title IV of ERISA; each Employee Benefit Plan is administered in accordance with its terms and in compliance with all applicable Laws, including any reporting requirements; each Pension Plan intending to qualify under Section 401(a) or 401(k) of the Code does so qualify; there is no lien outstanding or security interest given in connection with a Pension Plan; neither Borrower nor Guarantor nor any ERISA Affiliate has any liability with respect to an accumulated funding deficiency (whether or not waived) under Section 412 of the Code or Section 302 of ERISA; neither Borrower nor Guarantor has any liability for retiree medical or death benefits (contingent or otherwise) other than as required by Section 4980B of the Code; and no part of the funds to be used by Borrower or Guarantor in satisfaction of their respective obligations under this Agreement and the other Loan Documents constitute “plan assets” of any “employee benefit plan” within the meaning of ERISA or of any “plan” within the meaning of Section 4975(e)(1) of the Code, as interpreted by the Internal Revenue Service and the United States Department of Labor in rules, regulations, releases or bulletins or as interpreted under applicable case law.

     Section 5.11. Other Documents . The Major Leases and Premises Documents are unmodified and in full force and effect, there are no defaults (or events which with notice or the passage of time, or both, would constitute such a default) under any thereof and all conditions to the effectiveness and continuing effectiveness thereof required to be satisfied as of the date hereof have been satisfied.

     Section 5.12. No Defaults . There exists no Default or Event of Default.

     Section 5.13. Accuracy of Information; Full Disclosure . Neither this Agreement nor any documents, financial statements, reports, notices, schedules, certificates, statements or other writings furnished by or on behalf of Borrower or Guarantor to Lender in connection with the negotiation of this Agreement or the other Loan Documents or the consummation of the transactions contemplated hereby, or required herein or by the other Loan Documents to be furnished by or on behalf of Borrower or Guarantor, contains any untrue or misleading statement of a material fact or omits a material fact necessary to make the statements herein or therein not misleading; there is no fact which Borrower has not disclosed to Administrative Agent and Lenders in writing which materially affects adversely nor, so far as Borrower can now foresee, will

materially affect adversely any of the Mortgaged Property or the business affairs or financial condition of Borrower or Guarantor, or the ability of Borrower or Guarantor to perform this Agreement and the other Loan Documents.

     Section 5.14. Separate Tax and Zoning Lot . Each Mortgaged Property constitutes a distinct parcel for purposes of zoning and of taxes, assessments and impositions (public or private) and are not otherwise considered as part of a larger single lot for purposes of zoning or of taxes, assessments or impositions (public or private).

     Section 5.15. The Improvements . There are no structural defects in the Improvements or violations of any requirement of any Governmental Authorities with respect thereto; the use, occupancy and operation of the Improvements comply with all applicable permits and restrictive covenants affecting the Mortgaged Property, as well as with the Premises Documents and with all zoning, building, environmental, ecological, landmark, subdivision and other Laws, and all requirements for such use, occupancy and operation have been satisfied; there exist a sufficient number of parking spaces nec